Currently, there is a lot of confusion around the legal status of unconventional gas extraction in Germany. Lorenzo Cremonese summarizes Germany’s existing experience with fracking and clarifies open questions around the proposed new fracking legislation.
The debate on shale gas and fracking has polarised Europe, with some countries positioning themselves decidedly against fracking and others drawing up plans to use this technique. In Germany, the future of shale gas is still uncertain, but the year 2015 could be decisive. The country’s shale gas reserves are sizeable: according to the BGR (Bundesanstalt für Geowissenschaften und Rohstoffe), about 1.3 tcm of recoverable shale gas lie under German soil (by comparison, Germany’s total conventional gas reserves are estimated at 0.15 tcm). This has encouraged both companies and the government to carry out further investigations. The three major German shale gas deposits lie at depths of 1,550m–2,150 m (Posidonia Shale), 1,300m–1,660m (Wealden Basin), and 1,550m–5,000m (Unterkarbon) in the regions of Lower Saxony, North Rhine-Westphalia and Baden-Württemberg respectively. The BGR had intended to release a new, more detailed report, which also gauges the potential of shale oil, in May of this year.
Currently, the hydraulic fracturing (‘fracking’) technique falls under the provisions of German mining law, and is in theory permissible. In the last 40 years, fracking has been used frequently in Germany and other European countries to exploit gas from tight reservoirs (a different type of rock than shales). As for shale gas, only one well has been drilled so far, by ExxonMobil in Lower Saxony in 2008 (Damme 3). Here fracking was performed in three different stages, but the final results on potential production have not yet been released – and we are left to wonder whether this will ever happen. Would these results suggest that German reservoirs are not economically viable? It is definitely too early to say.
Since 2011, however, the relevant authorities in Germany have been more cautious when it comes to granting fracking permits, and regional ordinances were released that limit the use of this technique. The most frequently invoked reasons were the possible environmental risks associated with fracking, which the European media have tended to highlight (and sometimes inflate). According to the authorities, the current regulatory framework may be inadequate to safeguard the environment and guarantee human health.
In July 2014, the German government announced the main points of an upcoming law that would prohibit commercial shale gas production; this has led to a complete cessation of fracking concessions and a de facto moratorium. Then, on 1 April 2015, it submitted a legislative package with a number of bills that aim to establish an up-to-date and comprehensive set of rules for the use of the fracking technique for all tight gas, shale gas and coalbed methane exploitation activities. Its contents (and limitations) can be summarised as follows:
The 3,000-metre depth limit for shale gas
The use of fracking to commercially exploit shale gas (and coalbed methane) reservoirs is prohibited at depths above 3,000 metres. This ‘safety distance’ between the fractured horizon and the surface is meant to provide a strong guarantee against the risk of over-propagation of fractures and mixing of fracking waters with groundwater. Unfortunately, there is no scientific agreement on how far the induced fractures can propagate upwards and whether the direction of their development can be controlled. Indeed, a document prepared by the German Bundesrat highlights that the 3,000-metre limit is not supported by scientific evidence. Nevertheless, according to the latest research on this, it is reasonable to believe that a 1,000-metre distance is generally enough to prevent contact between the fracking fluids and groundwater, though reservoir-specific circumstances might vary. The distance proposed in the bill is therefore very cautious indeed; and in practice, this choice would preclude any shale gas-related activity in the country, as most of the deposits lie above this limit.
Fracking operations for tight gas in Germany
So-called ‘conventional’ fracking, which is used in the production of tight gas, will continue to be permitted, albeit with stricter requirements. Tight gas is preserved in rocks with low permeability, where induced fractures can substantially increase the gas flow. According to the BGR, hydraulic fracturing has been employed in German tight gas reservoirs on more than 300 occasions in the last 40 years with no recorded cases of groundwater contamination or induced earthquake. Nevertheless, NGO members – including some scientists – claim that there has been no comprehensive monitoring campaign to convincingly demonstrate the lack of environmental repercussions from these activities. In other words, to quote an old saying: absence of evidence is not evidence of absence. I personally share this position, but the absence of noticeable and indisputable cases of surface and groundwater pollution prompted by proper fracking activities in the country is a good indicator of the quality of the operations carried so far. This also explains why one of the bills introduces stricter regulations for tight gas production.
Pilot tests for fracking in shale reservoirs
There is a proposal for scientific testing of fracking activities in shales operated by private companies, which may not be subject to the 3,000-metre limit. The results will be assessed by an expert commission, commercial projects may be authorised if the absence of risks for people and the environment is confirmed. These authorisations are unlikely to be granted before 2018.
The expert commission will be composed of six experts in the field of fossil fuel exploitation from some of the most prestigious research institutes in Germany (BGR, UBA, LBG, GFZ, UFZ and the German Water Management Agencies). Several questions have been raised regarding the composition and tasks of this commission. For instance, the party Die Linke strongly supports the inclusion of a representative of civil society on the commission to guarantee that the critical stances on fracking among the general population are considered. Growing public opposition has played a crucial role in dissuading authorities from granting permits for fracking activities in recent years, and through active participation in the commissions, civil society could finally have a say in these decisions. It is, however, essential that the assessment of the testing results is based on sound scientific methodology, regardless of who the members of the commission will be.
General environmental restrictions on fracking
All fracking activities will be subject to many environmental restrictions and requirements, especially with respect to water protection, liability and wastewater management. Environmental Impact Assessments (EIA) are mandatory, irrespective of the quality of the reservoir, the chosen fracturing technique, the depth at which fracking takes place, and the volume of gas extracted.
Problematic issues in the proposed legislation
The proposed bills have sparked many different reactions. As expected, the German Industry Associations (BDI) consider the regulations to be unnecessarily strict. At the other end of the spectrum, political parties such as the Green Party and Die Linke claim that the bills have established a loophole for fracking and call for an outright ban on the technique, in the same vein as countries like France and Bulgaria. Although at this stage we do not know if shale gas exploitation will be ever permitted in Germany, the proposed law surely does not establish a ban on fracking “for the foreseeable future”, as claimed in some of the official documents. Clarification of the overall policy goals is sorely needed.
Alongside the more politically-oriented stances, there are also concerns regarding perceived shortcomings and problematic intricacies of the bills. A group of recognised experts from the scientific community have, for example, pointed to several technical inaccuracies in the draft legislation, mostly related to the treatment of flowback water (i.e. the liquid that rises up to the wellbore after fracking), the ambiguous distinction between ‘conventional’ and ‘unconventional’ fracking, and the regulations on the chemical additives that can be used during operations. They raise several valid points, which will be analysed and expanded upon by our team in a forthcoming IASS working paper. The German Association of Spas (DHV) has also commented on the bills, underlining the need to extend the fracking ban from the water protection areas mentioned in the legislative package to further areas in the vicinity of therapeutic, thermal and medicinal waters. It also recommends the inclusion of a clause on company liability for any surface damages that may be caused by hydraulic fracturing (e.g. uplift, faulting, etc.). Nevertheless, no proved cases of such effects on nature have been observed so far.
The legislative changes are complex and affect different laws pertaining to mining activity and water resource protection. The technical or geological aspects of fracking only add to this complexity.
However, most of the political debates have been centred on the issue of the expert commission and its role in eventually authorising commercial shale gas projects. Many parliamentary groups opposed this provision and requested that parliament be given the last word on these decisions. Partly because this point of contention also arose within the coalition parties, the government decided at the end of June to postpone the parliamentary debate until the autumn in order to take stock of the many points that have been raised.
Hopefully, this delay will help to clarify contentious issues and lead to a balanced compromise between the different (and sometimes competing) interests at play, while still prioritising environmental protection and public health. One thing is clear at this stage: hydraulic fracturing for tight gas and geothermal activities will very likely be permitted in the coming years. Things are less clear-cut for shale gas activities, as the second stage of the debate will start once the results of the planned pilot tests are released. Although these fact-finding tests will very likely take place, some changes may still be made to the expert commission and its tasks. So be patient and stay tuned!
 Abschätzung des Erdgaspotenzials aus dichten Tongesteinen (Schiefergas) in Deutschland. BGR, May 2012.
 For an overview of how this technique works, and what the main environmental risks are, see L. Cremonese, M. Ferrari, M. P. Flynn, A. Gusev (2015). Shale Gas and Fracking in Europe. IASS Fact Sheet 1/2015.
 LBEG, Erdöl und Ergas in der Bundesrepublik Deutschland, 2012
 BGR, 2012.
 Respectively, the Bundesanstalt für Geowissenschaften und Rohstoffe, the Umweltbundesamt, the Landesamt für Bergbau, Energie und Geologie, the Geoforschungszentrum, and the Umweltforschungszentrum.
Dr Lorenzo Cremonese holds a degree in geological sciences from D’Annunzio University in Chieti (Italy) and a PhD in geochemistry from University College London. He joined the group “Role and Potential of Unconventional Gas” at the IASS in January 2013. In his research on the economic and political aspects of unconventional gas development worldwide, Lorenzo focuses on environmental issues, in particular CO2 emissions and fugitive methane in fossil fuel exploitation. The post was first published on the blog of the Institute for Advanced Sustainability Studies (IASS) Potsdam and is reposted with permission.