This blog merged with the Tilburg Law School 

Environmental Law blog

Schaliegas: toenemende interventie door lokale overheden

In most countries, unconventional gas production (as is the case with most natural resources) is of national interest. The production of shale gas, tight gas and coal seam gas through hydraulic fracturing is considered an important source of revenue and an important element in the nation’s energy policy. The big national interests at stake with unconventional gas production put local governments under pressure. Local governments usually are concerned with protecting the local environment for the benefit of present and future generations. Often, these concerns have a legal basis, either in the constitution, in the public trust doctrine, or in domestic legislation in the field of land use and planning and/or environmental protection.

In several shale gas rich countries around the world, we see attempts by local governments to challenge hydraulic fracturing (fracking) using various legal pathways.  Examples are popping up everywhere, now almost on a monthly basis. In the US, in December 2013, the Pennsylvania Supreme Court declared an Act that sought to eliminate zoning authority from municipalities over shale gas extraction, unconstitutional because it infringes the municipalities’ duty under the state’s constitution (Environmental Rights Amendment), to act as a trustee of natural resources. In 2014, the shale gas richest province in the south of the Netherlands and several of the municipalities in this province, banned exploration and production of shale gas altogether, using various legal instruments in the field of environmental law and land use planning law.

Although local authorities do not have competences in the field of mining law, they do have responsibilities and associated powers under planning law. Local zoning and planning is always done at the local level, and hence, municipal authorities may set restrictions or conditions to any new activity so as to fit in this activity within the existing land use. These powers can be very far-reaching, even rendering the use of a production permission entirely impossible. Should, for instance, a local zoning plan prohibit mining activities at a certain location, or prohibit the issuing of a construction license to mining constructions on that location, then no mining can take place there, even after the competent authority for the mining operations granted all necessary permits.

Both in the Netherlands and the United States, however, central governments have legislated in order to have the regulatory tools to intervene in local decision-making when needed to ascertain that mining activities go ahead. In the case of shale gas, local governments and local communities increasingly pursue legal pathways to block or at least hinder shale gas operations. In the example of Pennsylvania,  the state authorities used their legislative power to overrule local decision-making. Courts, however, seem to be willing to limit or even block such intervention because it infringes on the constitutional right to a clean environment and the public trust doctrine, also laid down in the constitution, according to which governments have to protect the environment for present and future generations.  

In the Netherlands, instruments to overrule local decision-making in the field of environmental protection and spatial planning are in place, but have not been applied yet. The debate on the constitutionality of such intervention has not arisen yet. Should intervention take place, it is likely to be argued that this is unconstitutional, not just because of the alleged infringement of the right to a healthy environment (somewhat similar to Pennsylvania, laid down in the Dutch constitution in the form of a basic duty for the government), but also because of the principle of decentralized governance that forms the basis of the Dutch public governance system.  It remains to be seen whether such reasoning is going to be successful, as the Netherlands does not have constitutional courts, nor the possibility to have legislative acts of the national legislature tested against the constitution.  Even without these opportunities, however, it is clear that Parliament will scrutinize any attempt by the Cabinet to overrule local rules and regulations as this will be considered to undermine future collaborations with local authorities on which the central government in almost every policy field depends for the execution of their policies. In a previous attempt in the Netherlands, to impose national decision-making upon an unwilling municipality (the selection of a location for an onshore carbon capture and storage demonstration project), huge public uprising occurred, ultimately leading to the abandonment of the project. 

In Germany and France, by contrast, public protests, mainly at a local level, have strongly influenced decision-making at the national level, more or less by-passing local governments. This probably is due to the fact that in these countries, local authorities have little power to stop or regulate shale gas exploration and production. Hence, protesters –with much success– aimed at national political institutions rather than at local authorities. In France, opposition was especially fierce because of the lack of public consultation. Both countries imposed a moratorium on the exploration and production of shale gas through hydrofracking with the use of chemicals.

The above brief assessment of the role of local governments in the hydrofracking debate shows that the local level plays an important role indeed. Simply ignoring or legislating local governments and local communities out of the picture will be counterproductive, as the local level has legal and political cards to play out, and, constitutionally, perhaps even has to play out these legal cards to protect the environment for present and future generations. It seems, therefore, that local communities determine the success of unconventional gas development and should be taken seriously by central governments that plan to support hydrofracking. Transparency and meaningful involvement of local communities should be pursued, allowing for any kind of outcome, including the outcome of a moratorium or ban. It can be expected that at the EU level, where legislation is currently being prepared, focus will be on such important procedural issues.

Waar blijft het juridische kader voor klimaatvriendelijke landbouw?

Between now and 2050, there will be a sharp increase in the demand for agricultural products. This is caused by an increase of the world’s population from 7 billion today (2012) to 9 billion, the rise in global calorie intake by 60% due to greater affluence, particularly in countries like China and India, and the production of bio-fuels (Meridian Institute 2011). The increase in agricultural production is likely to be accompanied by an increase in the emission of greenhouse gasses. Agriculture is responsible for 30% of total global greenhouse emissions, mainly through land-use change (particularly deforestation driven by agricultural expansion, also affecting biodiversity), methane and nitrous oxide emissions (from livestock and the use of fertilizers). The Meridian Institute, in its 2011 report ‘Agriculture and Climate Change: a Scoping Report’ shows that agriculture is not only a major cause of climate change but in many regions of the world, it is also seriously impacted by climate change. It is expected that by 2050, 56% of crops in Sub-Saharan Africa and 21% of crops in Asia will be negatively affected by the consequences of climate change, for instance because of shifts in water availability, temperature shifts, and changes in the occurrence of pests. This often has direct effects on the availability of food. In other regions, such as Europe, it seems that at least in the short term, climate change can be beneficial to agricultural production, allowing, for example for an additional yield per year or the opportunity to grow a more profitable crop. Europe, though, ultimately will be affected by these developments as well: food shortages are expected due to demand in other markets, particularly the emerging economies, even when taking into account the decline of Europe’s population (European Commission 2012).

Limiting food security risks under climate change requires new climate-smart agriculture policies to be implemented. Around the world, a wide variety of adaptation and mitigation projects are being trialed in the agricultural sector under such headings as ‘carbon farming’ or ‘climate smart agriculture’ (hereafter: CSA). The FAO website on climate smart agriculture has a list of more than 150 projects around the globe. Examples of these are the application of low water use technologies, crop changes, tillage and residue management, land-use change, agroforestry, enhancement of agro-biodiversity, etc.  So far, these, mostly experimental, projects have not or only barely been brought under the existing legal framework on climate change adaptation and mitigation.

With the varieties in effects of agriculture on climate change and in the effects of climate change per region, it is a challenge to come up with an overarching legal framework that allows for both climate change mitigation and adaptation, while maintaining or even improving food security as well as providing benefits to as many people as possible. Although food security has been acknowledged as an important issue under the UN Framework Convention on Climate Change, bringing adaptation and mitigation in the agricultural sector under the UNFCCC and the Kyoto Protocol is only happening at a slow pace. Emissions from land use change and agriculture are included in the Protocol accounting mechanisms, but only when measurable as verifiable changes in carbon stocks. In addition, Parties could elect additional human-induced activities related to LULUCF (Land-Use, Land-Use Change and Forestry), specifically, forest management, cropland management, grazing land management and revegetation, to be included in its accounting for the first commitment period. Only four countries elected for this option in that commitment period, hence strongly limiting the possibilities under the Clean Development Mechanism (CDM) as well. Furthermore, methodological questions have led to restrictive limits. Soil sequestration, for example, has been excluded from the CDM, and land use change can only account for 1% of all CDM credits. Some support to developing countries in the field of agriculture is provided for by the Adaptation Fund and the Green Climate Fund.

In general, it must be concluded that the instruments aimed at reducing greenhouse gas emissions only apply to agriculture to a very limited extend. The relationship between agriculture and climate change is considered to be too complex to be included in current negotiations. There are seemingly insurmountable practical difficulties in integrating agricultural emissions in an emissions trading scheme.

At the international level, it is not just international climate law under the UNFCCC, but also international trade law under the WTO that is relevant when researching the legal framework for CSA. On the one hand, current income support for farmers may constrain CSA, for instance when support schemes do not ‘reward’ farmers for switching to agricultural practices that are aimed at climate change mitigation and adaptation. Under the WTO, reducing market distortions caused by income support to farmers have been discussed for years now, albeit without significant progress towards the liberalization of trade in agricultural products. On the other hand, the WTO’s intellectual property rights law (TRIPS agreement) seems to favour access to climate smart agricultural technologies and practices, as the TRIPS agreement protects IPRs while at the same time favouring technology transfer to developing countries, although the latter –in practice- still is problematic.

At the domestic level, only in very few countries attempts are made to introduce financial benefits to farmers for their mitigation efforts. Probably the best example is Australia that, in 2011, enacted legislation that allows farmers to (voluntarily) generate carbon credits that can be sold on the domestic and international carbon market: the Carbon Farming Initiative (CFI). Thanks to this initiative, Australia is the country with the most far-reaching example of active legislation aimed at facilitating and stimulating CSA. Farmers earn credits through agricultural emissions avoidance projects (projects that avoid emissions of methane from the digestive tract of livestock, methane or nitrous oxide from the decomposition of livestock urine or dung, methane from rice fields or rice plants, methane or nitrous oxide from the burning of savannahs or grasslands, methane or nitrous oxide from the burning of crop stubble in fields, crop residues in fields or sugar cane before harvest, and methane or nitrous oxide from soil), as well as through sequestration offsets projects.

In the EU, CSA is still very much in the research phase and the regulatory framework is largely absent. Farming is excluded from the EU ETS, but included in the Effort Sharing Decision.  The Effort Sharing Decision establishes binding annual greenhouse gas emission targets for Member States for the period 2013–2020. Member States have to develop their own policies in order to achieve their targets and therefore, may put more emphasis on some sectors than on others. For agriculture, emission reductions could for instance be achieved through more efficient farming practices and conversion of animal waste to biogas. Other than in Australia, LULUCF projects are explicitly excluded from the Effort Sharing Decision, so important measures like cropland and grazing land management and revegetation are not covered. The second route towards addressing emissions from agriculture is through the EU Common Agricultural Policy (CAP) reform in 2013. Here mitigation and adaptation policies meet, as the CAP is also the primary means for promoting climate resilient agriculture. In the initial proposals, the European Commission suggested to earmark 30% of the direct payments for farmers who apply agricultural practices beneficial to climate change and the environment (through crop diversification, maintenance of permanent pasture, the preservation of environmental reservoirs and landscapes, etc.). In addition, it was proposed to give increased financial support to agri-environment-climate projects and organic farming under the EU´s rural development policy. In the final stages of the negotiations, however, these proposals have been watered down to a considerable extent.

Voor het eerst bindend internationaal recht met betrekking tot klimaat-engineering

In October 2013, the Parties to the London Dumping Convention (to be more precise: the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter) adopted amendments aimed at regulating marine geo-engineering. This is the first time the international community adopted binding legal rules on climate engineering. Climate engineering, or geo-engineering, is the deliberate interference with the Earth’s climate to achieve a cooling effect, thus mitigating global warming. A range of very different techniques are being researched at the moment, usually divided into two groups: solar radiation management (SRM) and carbon dioxide removal (CDR). SRM techniques are for instance the injection of sulphur aerosols in the stratosphere to block the sun light, thus mimicking volcanic ashes in the stratosphere after a volcanic eruption (stratospheric aerosol injection, SAI), and the injection of fine sea water particles in clouds to increase the reflective capacity of clouds (marine cloud brightening, MCB, sometimes also referred to as cloud seeding). CDR techniques are for instance the emission of fertilizers such as iron into the ocean to stimulate a bloom of phytoplankton, which are responsible for a large share of the carbon take up (ocean iron fertilization, OIF), large scale afforestation, and direct air capture of greenhouse gasses (DAC).

Each of these techniques has its own pros and cons. Some are considered to be potentially dangerous because of the large scale at which they have to be used to be effective and the risk of unexpected negative side effects. It, for instance, has been estimated that for stratospheric aerosol injection to be effective, a more or less continuous emission of aerosols by a very large number of aircraft (perhaps as many as a thousand) is needed to keep a constant blanket of aerosols in the atmosphere. As this technique does not interfere at all with the amount of carbon in the atmosphere, generations to come have to continue applying this technique. Stopping the emission of aerosols will trigger a very sudden drastic warming effect. Other negative consequences of SAI are side effects, such as potentially drastic changes in precipitation in some regions, ongoing ocean acidification and potential harm to the ozone layer. Ocean fertilization leads to eco-system changes and may affect fish stocks. There are many reports that describe the pros and cons of the various geo-engineering techniques. In Germany, the Kiel Earth Institute published a good report in English. In the Netherlands, the Rathenau Institute published an up-to-date and very well accessible report in Dutch in December 2013.

As is often the case with the development of new techniques and technologies, the law regulating these is lagging behind. This, however, does not mean that climate engineering is completely unregulated at the moment. International law that applies to (some forms of) climate engineering, can be divided into four categories:

-        International customary law. The no harm principle limits the use of techniques that may have an irreversible negative side effect for certain states (in the 1997 Gabčíkovo-Nagymaros case, the International Court of Justice stated that in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage). An assessment of the potential negative impacts on the environment of other states is required as a consequence of this principle (as was concluded by the ICJ in the 2010 Pulp Mills case). Other international environmental law principles that are relevant here are the precautionary principle and the principle of intergenerational equity.

-        International human rights conventions may apply, although both advocates and critics of climate engineering use human rights as an argument in favour of and against the deployment of geo-engineering techniques (climate engineering is necessary to protect human rights which will be affected by climate change, or: climate engineering may negatively impact on human rights in case of unexpected failure or negative side-effects)

-        Existing treaties that more or less explicitly deal with climate engineering. The best example before the adoption of the 2013 amendments to the London Protocol is the 1976 Convention on Environmental Modifications (ENMOD convention). Although this convention is mainly aimed at environmental modifications with a hostile intend, it also sets some conditions to environmental modifications for peaceful purposes, such as climate engineering. Climate engineering is allowed under the ENMOD Convention, provided that a State does not develop and employ climate engineering on its own (international cooperation is needed), the deployment has to contribute to international economic and scientific collaboration aimed at improving the environment, and States have to take into account the needs of developing countries.

-        Existing treaties that happen to be applicable to a certain climate engineering technique, such as the 1979 Convention on long range transboundary air pollution which sets a cap on various emissions, such as sulphur emissions, thus limiting the use of sulphur for stratospheric aerosol injection.

The adoption of amendments to the London Protocol referred to in the first sentence of this blog fit within the third category, but is special because it is the first time that climate engineering has been explicitly targeted by international law. Through the amendments, a new article and two new annexes are inserted into 1996 Protocol. The new article states that “Contracting Parties shall not allow the placement of matter into the sea from vessels, aircraft, platforms or other man-made structures at sea for marine geo-engineering activities listed in Annex 4, unless the listing provides that the activity or the sub-category of an activity may be authorized under a permit”. Annex 4 then lists ocean fertilization as a prohibited activity, with the exception of legitimate scientific research. Such research has to be permitted and assessed under the criteria laid down in Annex 5. Annex 5 has extensive provisions for the permitting process at the domestic level by the parties to the protocol, on consultation, prior assessment, site selection, risk management, monitoring, scientific  peer review, etc., etc. States have to adopt legislation so as to implement these new provisions. Once ratified, these amendments will thus lead to legislative activity in all of the 44 parties to the protocol. They will serve as a benchmark for all future geo-engineering law, both at international and national level.

Klimaatverandering en biodiversiteit: naar connectiviteit in het Europees natuurbeschermingsrecht

 

Many protected areas are badly suited to overcome climate change–induced shifts in species’ geographic ranges. Studies show that protected areas “have not been designed for efficient (or even complete) representation of species” (Hannah et al. 2007). Fixed protected areas alone will not be sufficient to safeguard biodiversity from the impacts of climate change. Hannah et al. show that between 6% and 22% of species in their analysis failed to meet representation targets for future ranges that take into account the impact of climate change, with a further increase expected under more severe climate change scenarios. Connectivity measures, such as the creation of corridors or stepping stones compensate for such losses. This is also reflected in the Millennium Ecosystem Assessment: “[c]orridors and other habitat design aspects to give flexibility to protected areas are effective precautionary strategies. Improved management of habitat corridors and production ecosystems between protected areas will help biodiversity adapt to changing conditions” (MEA 2005). A combination of several measures (enlarging areas, securing robust large areas, securing ecological connections between areas, and establishing real ecological networks) therefore seems to be the best approach to maximize the ability of nature to cope with the pressure of climate change on biodiversity.

The IUCN recently published a two volume publication titled ‘The Legal Aspects of Connectivity Conservation’ (IUCN 2013). Volume 1 gives a broad overview of current insights and understanding of connectivity conservation and explains through which legal mechanisms connectivity conservation can be achieved, taking examples from around the world, and focusing on land use planning law, development control law, voluntary conservation agreements and economic and market-based instruments. Volume 2 has a wealth of case studies of connectivity projects around the world. These projects range from local or regional projects, to nationwide or even continent wide connectivity projects. Examples of these are the nationwide ecological network in the Netherlands, the 3600km long corridor of the Great Eastern Ranges in Australia, the EU’s Natura 2000 network (including domestic projects in France, Germany, Spain, the UK, Finland and Slovakia) and corridors in Brazil, such as the Central Amazon Corridor.

Connectivity conservation and the management of connectivity conservation areas are emerging fields of scientific study and conservation management practice within the broader subject of nature conservation. In the most basic terms, connectivity conservation is a conservation measure in natural areas that are interconnected and in environments that are degraded or fragmented by human impacts and development where the aim is to maintain or restore the integrity of the affected natural ecosystems, linkages between critical habitats for wildlife, and ecological processes important for the goods and services they provide to nature and people. In fragmented ecosystems, wildlife corridors and other natural linkages such as green belts and large wildlife corridors have been common representations of connectivity conservation. The scientific emphasis takes into account connectivity needs across landscapes and seascapes, and in some cases even across continents, where necessary to maintain or restore specific linkages for habitat or species populations, or to maintain or restore important ecosystem processes. Scientific study and conservation practice have made important strides in understanding and applying connectivity conservation across a range of scales and functions.

The overarching conclusion from the research and analyses undertaken for this project as presented in Volume 1 of the report is the need for countries to become increasingly alert to their connectivity conservation needs, undertake connectivity planning, and initiate actions using existing mechanisms and opportunities as much as possible to negotiate and protect critical connectivity areas before they are lost to development. To support this process, a related conclusion is that a wide array of different legal instruments and tools already exist in many legal systems to begin to promote and implement science-based connectivity actions in priority landscapes/seascapes and local sites. Countries should start with these tools, using the best scientific information available, before development pressures make conservation or restoration no longer economically or political feasible. As experience is gained working with communities and landholders, and managing for connectivity conservation, a foundation of knowledge and support can be built for amending or enacting new legislation, as needed, to strengthen and integrate connectivity conservation authority into legal frameworks. Opportunities to use existing law and policy instruments should not be delayed by those efforts. It also is important to recognize that the law, by its nature and function, aims for clarity, certainty, and clearly defined processes and criteria for achieving specific goals and objectives. These features are essential for societies to have orderly interactions and effective future planning. In contrast, connectivity conservation is a tool for adapting to change due to dynamic factors related to current and new threats to protected areas, biodiversity and ecosystems, and to global change including climate change. Bringing the law and connectivity together requires that the law incorporate some flexibility in order for management to be able to respond to changing connectivity conservation needs and that connectivity conservation actions be based on the best available scientific information (in both the natural and social sciences) so that management actions and commitments are well founded for the foreseeable future. Law has several mechanisms that can provide flexibility. These include requirements for periodic review and revision of management plans, regular monitoring based on ecological criteria, the development of performance measures to help assess and evaluate whether management plans are achieving their intended purposes, and decision-making mechanisms to monitor and incorporate new scientific information relevant for connectivity conservation management as it becomes available.

For Europe, it is clear that Natura 2000 alone does not constitute a coherent network in the sense of truly interconnected protected areas throughout an entire country or throughout the whole of the EU. Additional, domestic instruments, mainly in the field of nature conservation law and spatial planning law are needed to create connectivity between the Natura 2000 sites. Even in case domestic instruments are applied, in addition to the EU’s Natura 2000 legal framework, to achieve connectivity, we still cannot be certain that the network remains just an ecological network on paper. Much depends on the actual application of all the laws and policies on activities within the areas that constitute the network. Farmers and other local landowners have to refrain from harmful activities, and/or have to actively manage the area to support the area’s connectivity function. Financial incentives are needed to make this happen. Fortunately, we can observe that EU Member States increasingly do apply such domestic instruments in order to achieve connectivity. Domestic policies in various Member States, such as the Netherlands and the UK, provide for additional connectivity instruments that add to the Natura 2000 network. Domestic subsidy schemes across the EU exist as well, and the EU’s LIFE+ scheme provide important financial incentives for connectivity. This, however, is largely due to national policy initiatives, and based upon national law instruments. At the EU level, there seems to be a slow movement towards accepting that connectivity measures are legally required by the current texts of the Birds and Habitats Directive. The Alto Sil judgment of the EU Court of Justice (Case C-404/09 European Commission v Spain), as well as a range of policy documents go into that direction. In my view, however, there is much to say for more explicit regulating connectivity (and restoration) requirements in binding legal instruments, such as the EU Habitats Directive. There is a fear that altering the current text of the Habitats Directive will open Pandora’s Box, leading to a decline of the impact of this Directive on nature conservation in Europe. Fear, however, generally is a bad advisor. The Habitats Directive is getting outdated, caught up by climate change and by large scale landscape fragmentation in Europe.

Klimaatverandering en landroof in Afrika

Since 2008, civil society groups and transnational networks have drawn attention to one discrete source
of conflict that is on the rise in the wake of resource scarcity: transnational agro-investment (Oxfam 2011; GRAIN 2012; FOE 2012). In practice this form of investment revolves around the acquisition of large areas of land, usually located in the global South and on a doubtful legal basis, often labeled as ‘land grab’. Governments of poor states are eager to welcome investments, even though there is no clear sight on beneficial long-term effects of associated changes in land use (FAO, 2012; ILC, 2012). Most contracts for these long-term transactions are effectuated between foreign investments (often government driven) and national governments that control and own the land. Some (not all) foreign investors are driven primarily by reasons that are related to climate change (we can call this ‘climate induced transnational agro-investments’). First, countries that foresee reduced domestic availability of suitable land for food production due to climate change and rapid population growth try to avoid future food shortage and high prices by producing food overseas (China being an example here). Second, most developed countries have set targets in their energy policies in attempts to cap greenhouse emissions. To meet these targets they are searching outside their own jurisdiction for suitable and affordable land to grow crops for biofuels and forestation. There is, however, another link between land grabbing and climate change: intensified land use for the African host countries not only impairs immediate food and water availability at the local level, but also reduces local communities’ resilience to engage with future climate change (hence, reducing their adaptive capacities). This, in turn, leads to serious and often irreversible socio-economic impacts, such as the displacement of local communities.

Climate-induced transnational agro-investment has been on the rise in several countries in Africa, such as Ethiopia and Uganda, where large areas of fertile farmland have already been earmarked for long-term transfer to foreign investors. Companies from China, Germany, India, Israel, Pakistan, Saudi Arabia, UAE, UK, The Netherlands, Norway and the USA have concluded land lease agreements for biofuel projects with government. Tensions and conflicts are looming as a result of discontent created by the marginalization and loss of property rights of the local communities as well as lack of their participation and a benefit-sharing scheme for use of resources. There already are numerous instances of displacements of the local population as well as clearing of forests and related resources on which the livelihood of the local population depend. These activities of the investors have caused widespread fear and threats to the livelihood of the local communities and have already led to conflict in some localities. An early example of such a conflict in Uganda is the so called FACE-case. The Forests Absorbing Carbon-dioxide Emissions Foundation (FACE) is a Dutch organization that entered a partnership with Uganda Wildlife Authority (UWA) to carry out a reforestation project in Mount Elgon National Park, commencing in 1994. The project involves planting of trees inside the boundaries of Mount Elgon National Park. The idea was that FACE assists with the planting of 25,000 ha of trees to absorb carbon dioxide so as to offset emissions from a new 600 MW coal-fired power station in the Netherlands. A year before the project started, the government declared Mount Elgon a National Park and the people living within its boundaries lost all their rights. People residing in the designated area were evicted without any compensation, and court cases aimed at protecting the community interests, did not yielded much. This resulted in conflicts, where communities deliberately destroyed the trees in the park. Evictions have continued throughout the 2000s, without compensation.

Although there exists an assumption that the investment is legally secured by contract law, pertinent legal questions arise about the compatibility of property rights, environmental norms, human rights and
participation rights. In general, five sources of law apply to foreign agro-investment: (a) National law of the host state; (b) Customary law of local and indigenous people; (c) International law (treaty and customary law, e.g. investment law); (d) Social responsibility norms and codes of conducts; (e) National law of the investor’s home state. It is unclear, however, how the legal norms of this complex multilevel system interact in practice. Such legal questions regarding changes in land change within the bigger climate change context have largely escaped the attention of environmental, human rights and investment lawyers to date. Legal analyses of the phenomenon of foreign direct investment and its impact on local communities’ rights are scarce. Moreover, evidence shows that legal entitlements and rights are not evenly distributed. In general it can be stated that while investors’ interests are legally enforceable and thereby protected, the interests of local and indigenous people are mostly regulated by ‘soft norms’- e.g. the principle of free prior and informed consent that in practice is extremely difficult to enforce.

As climate change threatens to become an ever more acute and serious problem, and population pressure increases, foreign agro - investment is an increasing source of conflict. This being so, we can no longer postpone thinking about the legal nature and the legal implications of climate-induced foreign agro-investment. One promising legal pathway is to focus on the legal agreements through which long-term land deals are being completed. These contracts or bilateral investment treaties contain critical information that determines the scope and terms of the investment deal, including the distribution of risks among stakeholders. The nature of the parties signing the contract (private or public) and through what process, significantly impacts on the extent to which local communities are involved and can make their voices heard. Practice suggests that local communities and rural landowners are rarely consulted in negotiations. Likewise, the terms of the contracts could have profound and possibly irreversible consequences for food security and stability in the host countries. It is hence crucial that contractual arrangements also address both environmental and social issues (e.g. job creation, infrastructure development). This is an area where linking contract law to customary, national, and international law and codes of conduct is particularly important for a full understanding of the implications of the contracts. Recently, several codes of conduct and principles for responsible investment (e.g. World Bank, FAO, IFAD, the UNCTAD, OECD, IFC standards, Ruggie Principles in Responsible Contracts, etc.) have been added at the international level to the existing body of law regulating foreign agro-investments. Similarly, at the regional level there has been increasing activity concerning promoting responsible investment; the African Land Policy Framework and Guidelines Initiative that is being led by the African Union for example addresses the issue. However, how these soft norms relate to individual contracts is far from clear and needs to be explored. It appears that domestic practices throughout Africa are quite diverse, ranging from no relationship whatsoever, to, for example, an explicit coverage of responsible and sustainable investment clauses in all contracts and the duty to have each contract ratified by parliament, as is the case in Liberia. Zambia has largely regulated foreign agro-investments, with the aim to guaranteeing continued supply at fair prices to local markets and the use of local farmers who have to earn a decent salary. A search for best practices in Africa is a good way to start researching effective regulatory frameworks for responsible and sustainable transnational agro-investments!

Eindelijk een schaliegasdebat in Nederland

Fifteen years after the first economical shale fracture in the United States, the debate on shale gas extraction has finally reached full speed after the publication, in August 2013, of a research report by three consultancy firms lead by Witteveen + Bos, on the potential risks and consequences of shale gas and coal seam gas extraction in the Netherlands. In the report for the Dutch government, the researchers reviewed the existing literature on the impact of shale gas extraction and “translated” the findings to the Dutch situation. Most of the information on the impact of shale gas extraction is from experiences in the US and the UK. The comprehensive report focuses on all possible consequences, such as water use, underground impact on the soil, methane emissions and the impact on the carbon footprint, pollution of the environment (including groundwater) by fracturing fluid and flowback water, noise and light pollution from installations, flaring, safety issues, earthquakes and subsidence.

Generally, the report concludes that most if not all of these risks can be managed by setting strict permit conditions. Unlike in the US, the Dutch shale gas reserves are at great depth, well below ground water aquifers, and, also unlike in the US, in the Netherlands there already exists an extensive regulatory system that sets strict rules. Flowback water, for instance, cannot be stored in open basins, but has to be stored in closed tanks that are stored on watertight floors as a consequence of EU waste water law.

Although the report looks sufficiently overarching and detailed, it also gained criticism. It was for instance criticized for its selected use of sources. Professor Jan Rotmans, in the Dutch newspaper Trouw (29 August 2013) stated that the report heavily relied on data coming from the industry (75% of the data used is from industry related sources), rather than on data from more independent sources. In addition, the lack of data is usually interpreted in a ‘positive’ way, i.e., concluding that a certain impact is not problematic, while in fact we do not know because of lacking data. Applying the precautionary principle would have led to the opposite conclusion in such a situation! Unfortunately, the Minister decided to grant the research project to a consortium of three private companies, one of which is Fugro, which states on its website: ‘Fugro’s activities (…) are primarily aimed at the: oil and gas industry, construction industry, mining sector’. On such a sensitive issue, it would have been better for the Minister to grant the project to a consortium of universities rather than of private businesses with ties to the shale gas industry, or at least have a university team lead the consortium.

Another problematic feature of the report is that it does not focus on specific local conditions. This is a bit strange because a) the government selected the three locations on which exploratory drillings are to take place long ago (2010), and b) the report argues that local zoning requirements are needed to protect specific sites, such as Natura 2000 sites (protected areas under the EU’s nature conservation laws) and groundwater protection areas (in use for drinking water supply), and probably also (although not specifically mentioned in the report) other types of protected areas, such as water storage areas, silence areas, and national parks. The report also suggests to protect buffer zones around such protected areas, without detailing how big these have to be. Given the fact that populated areas probably have to be avoided as well, it would have been interesting to test what drilling options remain. By leaving a lot of issues to the local level, authorities resisting shale gas extraction have an immense opportunity to block drilling, even in case the national authorities granted concessions. We already see developments going into this direction: a majority of politicians of the province of Noord-Brabant in which two of the designated exploration locations are located, have announced to prohibit shale gas exploration in their province in the Provincial Environment Ordinance.

It is clear from the report that shale gas extraction is only acceptable under strict legal conditions. The report does, therefore, constantly refer to laws and regulations that are or should be in place to minimize the negative impact of fracking. A full assessment of current laws is lacking, though. Current Dutch mining legislation does not explicitly deal with fracking, simply because it predates the large scale use of this technology. An earlier EU investigation of existing environmental laws, by a consortium that, interestingly enough, also included Witteveen + Bos, found many gaps and shortcomings. It is unlikely that all of these do not exist in the Netherlands. The report, furthermore, relies on law in the books rather than on the law in action. Although there are supervising authorities, both on the implementation of mining legislation and environmental legislation, much depends on the way the various authorities involved deal with their decision-making and monitoring and enforcement powers.

The debate will not be over for a while. This is a good thing. Before investing billions of euros into new infrastructure to extract fossil energy resources, it is worthwhile to rethink whether such investments perhaps are more appropriate in the dwindling Dutch renewable energy sector. According to the 2013 Renewable Energy Progress Report, the Netherlands is on a snail ride, moving from a 2,4% share in 2005, to a 3,8 share of renewable energy sources in the total energy consumption in 2010. Compare this to some of nearby countries, such as Germany (11%), France (13.5%), and Denmark (22.2%)… In 2012, the share went up to 4,7%. In this pace, it is highly unlikely that the Netherlands will meet its target for 2020 of 16%... Investing in shale gas extraction will not speed up this process.