Fracking in Germany? It`s complicated

The complicated German legal framework for hydraulic fracturing could become even more splintered. After a lengthy process Germany finally put into place prohibitive legislation on hydraulic fracturing in February 2017. An initiative in the state of Schleswig Holstein now launched a legislative proposal in the parliament of Schleswig Holstein with the aim to put an additional, stricter state law on hydraulic fracturing into place. The only problem is: Schleswig Holstein is not allowed to do this.German fracking regulation has been installed by the German national parliament (Bundestag) in February 2017. The framework (or fracking package) consists of two laws and one ordinance, which outlaw the use of hydraulic fracturing for the extraction of hydrocarbons from some types of rock (e.g. shale), while oil and gas extraction from other types of rock (e.g. sandstone) with the help of hydraulic fracturing remains licit. The Germans are calling this a difference between `unconventional` and `conventional` fracking and the legislator argues that the first is dangerous and must be banned while the latter one can be allowed.


This different treatment has been highly controversial in Germany and citizen`s initiatives joined forces with some politicians in Schleswig Holstein to implement a state law that would ban the use of both `unconventional`and `conventional` fracking. The `citizens` initiative to protect the water` has so far been signed by more than 40.000 people, according to reports by the German newspaper `Tageszeitung`. The specific aim of the initiative is to ban all fracking activities, including scientific test drills. The problem, however, is that the 2017 national German fracking package allows test-drills.


The conflict boils down to a clash over legislative competence. The German `fracking`package of 2017 amended the national water protection act (Wasserhaushaltsgesetz) in a way that it regulates fracking. Although the German constitution is stating that water protection is subject to `competing` legislative competence between the national and the state level (Article 74 (1) No.32 German Constitution (Grundgesetz)), it is clear from article 72 (1) German constitution that the states only have legislative competence in those areas insofar as the national state has not made use of its legislative competence. But the German nationstate made use of its competence with the fracking package of 2017.


Because of this conflict of the proposed Schleswig Holsteinian law with the German constitution did the scientific service (wissenschaftlicher Dienst), an independent legal advisory committee to the parliament of Schleswig Holstein, advise parliament to reject the law as `unconstitutional`. However, the proposed law is still on the table and according to press reports is the outcome of a vote in parliament far from clear. Should the parliament of Schleswig Holstein approve of the proposed law could the conflict end up before the Federal Constitutional Court of Germany.