Germany: Federal Cabinet Approves Legislation Making Companies Liable for Frac Damage to Environment or Property

Federal Cabinet Approves Legislative Package Limiting Future Fracking Operations in Germany by Dr. Frank-Rainer Töpfer and Dr. Janet Butler, April 13, 2015,

On April 1, 2015, the German Federal Cabinet (Bundeskabinett) approved a legislative package introducing broad restrictions on the use of hydraulic fracturing technology (fracking) in Germany. The legislative bill prohibits hydraulic fracturing in certain areas to protect drinking water supply, health and nature, and sets strict limits on unconventional fracking operations in shale, argillaceous rock, marl or coal seam. Additionally, it tightens the re-quirements for conventional natural gas and oil extraction. The bill will now be submitted to the Parliament (Bundestag).


Currently, there are no regulations in Germany specifically addressing the issues raised by fracking. While companies generally require a license and the approval of mining activities both for the exploration and the extraction of gas reserves, current legislation does not expressly mention environmental aspects as part of the review procedure. While a license may be denied if it runs contrary to predominant public interests, including environmental concerns, a detailed environmental impact assessment (EIA) is not mandatory.


The Cabinet’s legislative package is guided by the principle that fracking should be allowed only if environmental and health risks can be safely ruled out. It contains the following central proposals:

Temporary ban on fracking in depths above 3,000 m
The principal feature of the proposed legislation is a temporary ban on fracturing in shale, argillaceous rock, marl and coal seam in depths above 3,000 meters (so-called unconventional fracking). This ban is justified by the fact that there is no experience in Germany on the potential environmental effects of such unconventional fracking. Therefore, only scientifically supported test drilling for the purpose of exploring the environmental effects of such drilling will be permitted, and only if the fracturing fluid does not pollute drinking water supplies. The Federal Government plans to create an independent committee of experts to observe the scientific test drillings and to evaluate the results in yearly reports, beginning in 2018. Based on the committee’s evaluations, unconventional fracking in specified rock formations may be allowed in the future.

Ban on hydraulic fracturing in water-sensitive areas, nature conservation areas and Natura 2000 conservation areas
Hydraulic fracturing in specific, water-sensitive areas will be prohibited. The ban on fracking includes areas such as water and medicinal springs protection zones, and lakes and dams relevant for public drinking water supply. The individual German States are given authority to expand this ban to include areas relevant for the supply of natural mineral water sources, water intake zones for the production of beverages and coal mining areas. Furthermore, fracking operations will be generally prohibited in national nature conservation areas (national parks, nature preserves) and European Natura 2000 conservation areas.

Mandatory environmental impact assessment
An environmental impact assessment will be mandatory in all approval procedures for deep drilling activities for gas, oil or geothermal energy using the fracking technology. This requirement relates to both conventional and unconventional fracking and aims to guarantee complete transparency and a greater public participation in the approval process.

Publication and reporting requirements
Where fracking operations are allowed, they will be subject to strict publication and reporting requirements, e.g. regarding the substances and materials used.

Stricter liability for mining damages
The proposed “Act on the Extension of Liability for Mining Damages to Borehole Drilling and Caverns” strengthens the position of persons affected by mining damages. In the case of mining damages which can be attributed to fracking or deep drillings, the affected persons do not need to prove that their individual damages were caused by the fracking method, as would be the case under general liability rules. The proposed act reverses the burden of proof, meaning that the company using the fracking method will need to prove that the damage was not caused by this method in order to exclude liability. [Emphasis added]

Germany’s new fracking rules pass cabinet / Experts question commercial viability of shale gas in Europe by Plasteurope, April 13, 2015

New rules on hydraulic fracturing, or fracking, passed by the German federal cabinet at the beginning of April may do little to quell the ongoing debate over chances and risks of the technology. In essence, the proposal drawn up by environment minister Barbara Hendricks places more restrictions on the practice for a limited period while holding out a promise of more flexibility four years down the road, a compromise palatable neither to advocates or opponents of shale gas.

In its current form, the legislation will allow test drilling immediately under certain conditions and commercial exploitation from 2019, where the tests show geological formations to be suitable. In any case, a six-member government-appointed committee of scientific advisers must approve the activity. To avoid endangering drinking water supplies, exploration will be limited to areas where water protection and mining safety authorities declare it safe and restricted to depths below 3,000 m, although exceptions may be allowed.

Environmental advocates contend that the rules allow too many loopholes. As exploration can take place after 2019 without further study if the scientific committee approves, some have called the legislation a “fracking-enabling plan.” Drilling companies eager to get into the game still see their hands unnecessarily tied, and are especially unhappy about a provision that would make them liable for damage to the environment or property.

In the view of the chemical industry association Verband der Chemischen Industrie (Frankfurt;, the proposals as passed “do not provide a meaningful basis for exploitation.” From its standpoint, “shale gas can play an important role in climate protection,” but more flexible [aka deregulated] rules are needed.

Following its long and protracted internal and external deliberations, Germany’s coalition government takes a different view. “This law will enable us to circumscribe fracking so that it no longer represents a danger to people or the environment. As long as the risks cannot be fully evaluated, fracking will be banned,” Hendricks said, while energy and economics minister Sigmar Gabriel said the government’s decision will create “legal certainty both for people and for the industry.”

Observers of the German move point to falling oil and feedstock prices – which are down by half against the mid-2014 level – as another potential threat to fracking, in particular as Germany’s geography renders the procedure more invasive and expensive. A study by Energy Watch Group (EWG), an international network of scientists and parliamentarians, has warned against the expansion of shale gas extraction both in Germany and Europe.

The costs of exploration and the environmental damage produced by fracking are “out of all proportion to the amount of raw materials extracted,” EWG asserts. “Why should Germany take the risks when the energy and climate policy debate requires other measures, anyway?” Werner Zittel, the study’s author, asks rhetorically in the paper. “The apparent success overseas cannot be transferred 1:1 to Europe, where other conditions prevail,” he adds.

New Energy Watch Group Study: End of Fracking Business by EWG, March 19, 2015

A new Energy Watch Group (EWG) study that examines the consequences of fracking in the United States warns strongly against the expansion of shale gas extraction in Germany and Europe. The costs and environmental damage produced by fracking are out of all proportion to the amount of raw materials extracted.

End of the Fracking Boom

Fracking entails enormous environmental destruction, a high consumption of groundwater and large-scale sand mining. What’s more, the indebtedness of companies in the fracking industry is steadily increasing. The drop in petroleum prices since autumn 2014 –a phenomenon related to the financial depreciation of oil and gas reserves – has caused financial problems for many companies. The shale gas industry is not doing well. Mass layoffs and bankruptcies reveal the true story behind the rosy picture of a reliable and long-standing boom in the fossil economy.

Thus far, fracking on a commercially relevant scale has occurred primarily in the United States. In 2005, then-President George W. Bush loosened the environmental regulations for the fracking of crude oil and natural gas. As a result, US gas production has been rising steeply ever since. This has enticed many to believe the fallacy of a supposedly decades-long oil and gas fracking hype.

Expansion in Europe

… “The US experience shows that short-term success was bought at the price of extensive collateral damage.Why should Germany take the risks when the energy and climate policy debate requires other measures anyway?” asks Dr. Werner Zittel, the study’s author and head of the Ludwig Bölkow Foundation.

Since December 2014, the proposal for a controversial fracking law has been under discussion. This month, the German Bundestag will begin deliberations on the fracking regulations. This special situation, which calls for a socially responsible decision compatible with climate policy, inspired the Energy Watch Group to prepare a provisional report. “It is completely incomprehensible that a government policy for fracking still dominates from Brussels to London to Berlin, at the expense of environmental protection and against the will of the affected population, while at the same time putting continued pressure on the expansion of renewable energies.”, says Hans-Josef Fell, President of the Energy Watch Group.

The EWG study (in German) can be accessed here.
The English summary of the study can be accessed here.
Here you can read the EWG press release in German.

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