Shale Gas and the Future of International Environmental Law

Laura Frano, University of Pittsburgh Law School of Law Class of 2012, is a certified legal intern at the University of Pittsburgh Environmental Law Clinic. She writes on the growing popularity of natural gas as an energy source and the need to proactively implement international law and policy to regulate it...


The history of environmental law is one of ad hoc decision-making. Historically, environmental legislative change has followed industrial age environmental disasters. Our environmental legal system is defined by the environmental damage inflicted on our land. Thus, the scars from industrialization not only mar our landscape, they also define our legal approach to healing and preserving it.

At present, we remain in the wake of two epic environmental disasters, the BP Deepwater Horizon oil spill and the Fukushima Daiichi nuclear plant failure. Both disasters are linked directly to the global demand for energy. As the supply of natural resources tightens, greater risks are required to retrieve less. Thus the scale of the potential impact broadens, creating transnational and global environmental problems. As public concern mounts and social unrest grows, lawmakers in many nations are faced with drafting laws aimed at achieving energy independence while sufficiently regulating the exploration, development and implementation of energy sources. In such an environment, we are sure to experience a new wave of environmental legislative change not seen since the 1970s.

The 1970s are often looked on as a time of a truly citizen-based environmental movement. In the wake of the Vietnam War and the civil rights movement, Americans such as Rachel Carson with her famous book Silent Spring forced lawmakers to adopt extensive and innovative provisions on the protection and preservation of the environment. However, the legal issues, public concern and increased risks surrounding energy consumption and development today can no longer be addressed entirely at the national level. Developing a legal framework to mitigate and prevent disasters such as the Deepwater Horizon Oil Spill and Fukushima will require an international environmental legal framework.

Currently, international environmental law consists primarily of laws governing policy and procedure; typically these laws do not have a direct impact until adopted by individual countries through domestic legislation. Alternatively, substantive or procedural "soft law" could be implemented in the form of rulemaking, agreements or standards. In either case, there is no international entity to govern the field outside of the existing networks and agreements between governmental organizations, hybrid private-public organizations and private bodies. Thus the field is governed predominately by national laws controlling the mediums to be used for exploiting and regulating energy consumption.

Although commonly referenced out of necessity, studying the environmental laws of varied nations can help lawmakers and policymakers to create an international environmental framework that is more effective in governing the widespread risk and impact of today's energy market. The EU offers an example of what an international system may look like. The EU utilizes a unique hybrid approach in which both private and public law governs. Within the EU, a myriad of tools are used to reach the goals of environmental protection and sustainable economic practices, including self-regulatory laws, agreements between private and public entities and economic instruments such as direct taxation of polluting substances. This flexible approach allows for more positive inducements and technological innovation than the traditional command and control model of national environmental governance used in the US.

European nations develop their statutory controls for energy development and management considering the economic, political, social and cultural influences of the individual nation. This flexible approach creates more opportunity for such influences to be incorporated in legal and policy frameworks. As this approach is implemented throughout the EU, the result is a broad spectrum of varied approaches.

Italy's approach to meeting its energy needs offers an example. In the first weeks of June 2011, the Italian people showed up in numbers not seen since the mid-1990s to vote on a referendum banning nuclear energy. The result, by a remarkable 95 percent majority, was to continue the ban on nuclear energy. Italy first abandoned its nuclear program following a similar referendum in 1987. Meanwhile, pro-nuclear France has taken a differing approach and has banned natural shale gas development. Then there is Germany, which in early summer 2011 announced its plan to move quickly towards nuclear independence. If the majority of countries are to follow the footsteps of Italy and Germany, we can only expect more dependence on natural gas as a key energy resource. Thus we can also expect necessary changes in the environmental laws accompanying the exploration, extensive pipeline transportation system, trade and consumption of this natural resource on the international front. Natural gas, once considered a relatively stable player in the energy market, is now projected by some to become a leading energy source in many countries throughout the world. This is due to relatively recent technological advancements that have made unconventional, or "shale gas," recoverable at a feasible price point.

Unconventional natural gas, which is primarily made up of shale gas sources, has now been estimated to be as large as conventional natural gas resources in production volume. Further, global social and political uncertainties impacting traditional energy supplies are seen by some as an opportunity for natural gas to displace other fossil fuels as an energy source. Additionally, natural gas is particularly interesting in this age of alleged green legislation because its use could lead to lower emissions of greenhouse gases and other pollutants as compared to oil or coal. Current production of unconventional natural gas is mainly based on the large-scale development in the US, particularly the Marcellus Shale Basin located primarily in Pennsylvania. Other American shale gas formations have been developed in Texas, Wyoming and Louisiana.

However, there is a much larger global shale gas supply that is now available due to these technological advancements. Some estimate these formations could sustain global consumption for over 200 years at current rates. Natural gas can be used for many applications, most notably gas-fired generation for electric power supply, industrial processing, home heating fuel, fuel for residential appliances and as an alternative fuel for transportation vehicles.

Currently, the US is largely self-sufficient when it comes to natural gas, but with China projected to become a large importer, US producers are stockpiling resources to participate in the expanding global trade of natural gas. In contrast, Italy depends primarily on Russia and Algeria for its natural gas imports, and current Italian production has been sinking since the mid-1990s.

With Italy's recent decision to continue to ban nuclear energy and the current unrest in Libya, a key oil supplier, it is likely to consider increasing its usage of natural gas as an energy source. Interestingly, Italy ranks in the top 10 countries for percentage of vehicles powered by natural gas, a small but intriguing use for the fossil fuel. So what will the Italians do to keep their energy consumption needs met while maintaining their commitment to ban nuclear energy? As of June 2011, two large exploration permits have been issued to energy companies allowing them to explore unconventional gas reserves. Their findings conclude that the Po Valley Basin in Northern Italy contains approximately 28 trillion cubic feet of methane. Though a major discovery for Italy, the natural gas would require a sufficient pipeline infrastructure, and some major pipeline production has stalled and other major pipeline projects are not projected to begin until 2017. The question for countries is not likely to be if they will develop their natural gas reserves, but when they will be able to do so.

Given that the production of this resource appears inevitable for at least some major countries in the world, it is natural that the new age of environmental legislation will incorporate laws governing its management. In fact, studying the national legal frameworks surrounding natural gas is likely to offer a solid example of how the global environmental stakeholders will generally address environmental issues through the law. Perhaps most significantly, this subject will allow us to test the international, regional and national concepts related to environmental policies and values of sustainable development, environmental conservation and pollution control. In a general sense, environmental protection in the law boils down to assigning more weight to environmental factors as opposed to the factors focused on traditionally, such as economic, social and scientific value, personal property and individual rights. An international environmental law framework will be tested by the varied national views on how to weigh these factors. Hopefully the opportunity will be taken to preemptively avoid problems rather than retroactively attempting to lessen their effects in the wake of a disaster, as has been the pattern historically.

Laura Frano is pursing the Environmental Law Certificate at the University of Pittsburgh School of Law. She is a recipient of the Center for International Legal Education summer fellowship and the Nationality Rooms' Frances and Sully Nesta Italy Awards, which funded her research in Italy this summer.

Suggested citation: Laura Frano, Shale Gas and the Future of International Environmental Law, JURIST - Dateline, Sept. 7, 2011, http://jurist.org/dateline/2011/09/laura-frano-environmental-law.php.




This article was prepared for publication by Megan McKee, the head of JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org

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