Varieties of fracking regulation in Germany

Annette Elisabeth Töller and Michael Böcher

annette.toeller@fernuni-hagen.de

michael.boecher@fernuni-hagen.de

Paper to be presented at ECPR General Conference Prague, 2016

Section: Environmental Politics, Panel: The Politics of Shale Gas (P424)

Panel Chair: Hannes Stephan

Time: 10/09/2016 16:00

Location: Building: Faculty of Law Floor: 4 Room: FL402

Summary:

As long as fracking was not regulated separately, it fell under the regulation of the Federal Mining Act (Bundes-

berggesetz, BbergG), which does not grant a great deal of weight to environmental considerations, procedu-

rally or substantively. It was only briefly before the summer recess of 2016 that the German Bundestag yet en-

acted the regulation that was strengthened on a few points. In accordance with it, commercial unconventional

fracking is now prohibited. In 2021 the German Bundestag will review this prohibition. In principle, four test

drillings for research purposes will be allowed, but only if the corresponding Land government approves this. In

a policy analysis, this article first observes and compares the regulations in the Federal Mining Act and the pro-

posed and presently approved alternatives, and second, it determines the causes for the orientation of the

substance of the regulatory packet now approved, as well as of its previous drafts. Supported by the political

process inherent dynamics approach (PIDA, Böcher & Töller 2016), the article reaches the conclusion that the

most important determining factor is primarily the problem structure which is characterized by the regionally

disparate occurrence of shale gas, which produces, locally and among the Länder, different concerns regarding

fracking, and so annuls the party differences, especially at the federal level. Second, institutions are crucial, na-

mely the complex distribution of power within German federalism, due to which Land governments have a

substantial influence on the regulation of fracking. Third, citizens’ initiatives have played a major role in influen-

cing the public debate.

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Contents 1. Introduction ..................................................................................................................................... 3

2. Three varieties of fracking regulation ............................................................................................. 5

2.1 Federal Mining Act .................................................................................................................. 5

2.2 The regulation project of 2013 ................................................................................................ 6

2.3 The regulation project of 2015 ................................................................................................ 6

2.4 The regulations adopted in 2016 ............................................................................................ 7

3. What explains the policy outcome? .................................................................................................... 7

3.1 The political process of fracking regulation ............................................................................ 8

3.2 Explanation with the aid of PIDA ........................................................................................... 12

4. Summary and outlook ................................................................................................................... 19

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1. Introduction

In fracking (hydraulic fracturing), large amounts of water, together with sand and chemicals, are

injected under pressure into previously drilled rock strata in order to produce fissures through which

then natural resources (mainly gas, but also oil) can be obtained that were not accessible before.

What is considered unconventional here are the deposits, in which coal gas and shale gas are found

at a depth of between 500 and 5000 metres, in such a form that the gas does not flow toward the

borehole without external influence.

Whereas in Lower Saxony tight gas has been extracted from sandstone by means of fracking during

the last 30 years and was therefore recently designated1 as being a conventional deposit (UBA 2012:

A10), there has been no experience in Germany yet with the extraction of shale and coal gas (UBA

2012: D1; BT-PlPr 18. WP, Session 103, 07.05.2015: 9785; BGR 2016).

Fracking is controversial because of its possible negative effects on the environment and on human

health, particularly through the contamination of groundwater and drinking water by the fracking

fluid, which contains harmful chemicals (see for example Meiners 2012: 61; EPA 2015). This is a

different matter from that of the high use of water and the question of the disposal of the deposit

water, which may contain heavy metals or radioactive substances from the bedrock (injection into

the ground is the usual way) (see for examples UBA 2012:D2; Töpfer& Kreutz 2013: 11f). In addition,

the land usage, the negative impact on nature and landscapes, and the CO2 emissions have also been

made into topics of discussion (see for example taz Nord, 26 April 2012; Spiegel Online, 16 October

2014, and Schirrmeister 2014: 4f.). Furthermore, whether fracking can also cause seismic activity

(earthquakes) is also discussed (BGR 2016). Opposite the discussion of the negative environmental

aspects is the controversial debate on the sense fracking makes in energy policy (ZEW 2013, see

below).

In the US, unconventional fracking has been used increasingly since 2007, to obtain shale gas (Börse-

nzeitung 29.6.2013; Süddeutsche Zeitung 10.01.2014; EPA 2015: ES-1). However, this technology has

entered a crisis there: First, as of late, the discussion focuses mainly on the negative effects on the

environment there as well (EPA 2015). Second, because of the enormous magnitude of the extrac-

tion, among other reasons, the price of gas dropped, so that the investment that was needed turned

out not to be profitable, and the enthusiasm of investors for the technology faded (Süddeutsche

Zeitung 10.01.2014; 05.11.2015; taz 20.02.2015).

Shale gas remains largely untapped in Europe. In 2014 the EU Commission estimated the shale gas

deposits suitable for exploitation to be 16 trillion cubic metres (European Commission 2014: 4). The

positions of European countries on fracking differ greatly. Whereas the United Kingdom and Poland,

for example, are very interested in the extraction of shale gas, it is prohibited in France (Eftekhar-

zadeh 2013: 707; Schirrmeister 2014: 1). In Poland fracking is seen as a modern technology in terms

of a national geopolitical strategy, for example (Jaspal et al. 2014; Atkins 2013).

1 The classification of tight gas is politically controversial. Internationally it is categorised as an unconventional deposit, but

in Germany it is now classified mainly as a conventional deposit (for example, BMWi & BMUB 2014; compare also BGR 2016: 13f.), because it has already been extracted for many years. Environmental associations strongly criticise this as a “conscious deception in order to present tight gas fracking as being harmless” (DNR & BUND 2015).

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Germany has appreciable unconventional natural gas deposits, but they are distributed differently

across regions. Thus, according to a study by the Federal Institute for Geosciences and Natural Re-

sources (Bundesanstalt für Geowissenschaften und Rohstoffe, BGR) there are between 0.7 and 2.3

trillion cubic metres of shale gas that could be extracted through fracking (BGR 2012: 48), of which

the greatest shale gas deposits are presumed to be in Lower Saxony and North Rhine-Westphalia

(Meiners 2012: 58). Starting in 2007, search permits (called Aufsuchungsgenehmigungen) had

already been issued, which have the character of licences.

Although fracking has been discussed politically for some time now, fracking-specific regulation was

missing in Germany until the passage of the legislative package in June 2016. Therefore fracking, like

other, conventional, sectors in the mining of underground fossil resources, fell under the regulation

of the Federal Mining Act (BBergG), the intent of which is, mostly, to secure the supply of raw

materials. From this logic (and because the mandatory environmental impact assessment, or EIA,

kicked in starting at a high extraction volume) the Federal Mining Act sees neither a relevant

participation of residents, local communities, or water authorities, from a procedural point of view,

nor are environmental interests considered appreciably from the perspective of substantive law.

Since 2013, two different federal governments have proposed two very different regulations for

fracking, under increasing public pressure: A regulation package proposed in 2013 contained rela-

tively few requirements for fracking, but it was not admitted into parliamentary procedure. At the

end of 2014 a new draft law was proposed and submitted officially in the spring of 2015, which

contained a relatively far-reaching ban of unconventional fracking. Due to different points of conflict

within the grand Coalition as well as between the government and the Länder, and between the

Länder, the draft was shelved for a year before it was adopted after all at the end of June 2016.

The status of scholarly literature on the topic is very manageable as of yet. Aside from the material

mentioned below, consisting mostly of scientific-technical assessments (particularly UBA 2012; 2014;

BGR 2012; 2016 and Meiners 2012) and energy industry publications (for example, Rehbock 2013

and ZEW 2013), as well as a few more recent review volumes and monographs from different

specialised perspectives (Habrich-Bröcker et al. 2015; Zittel 2016), there are mostly legal essays and

assessments dedicated to different aspects of fracking (for example Attendorn 2011; Ludwig 2012;

Frenz 2013; Eftekharzadeh 2013; Gaßner & Bucholz 2013; Böhm 2013). To date, analyses in political

science have dealt mostly with the citizens’ initiatives (Burgartz 2013; Yang 2015), the discourse and

discourse coalitions (Schirrmeister 2014), as well as the dialogue process that Exxon initiated (Bor-

nemann 2016). Tosun and Lang analyse the political process in Germany up until 2014 from the pers-

pective of the advocacy coalition approach and they identify discourse coalitions for and against fra-

cking at different periods (Tosun & Lang 2016). The newer developments (the political process, from

draft at the end of 2014 to the law in 2016) have not been the subject of scholarly investigation yet.

The present article observes fracking regulation in Germany from the middle of 2011 to June 2016

from the perspective of policy analysis, and undertakes two steps: First (Section 2) it compares, in a

descriptive analysis, the four variants of regulation, i.e., the present one, the two that are discussed

and the one approved in the end, with regard to the regulation philosophies and instruments used.

Second, it examines, for the purpose of explanatory analysis, the adoption or non-adoption of the

three specific regulation variants (Section 3). The policy process will be outlined first (Section 3.1), in

order to examine it then for causal factors with the aid of our framework for analysis, the political

process inherent dynamics approach (PIDA) (Section 3.2). Conventional policy analysis wisdom,

focusing on one causal factor only – e.g., the power of organised interests (power resource theory) or

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the role of party politics (partisan theory) –, does not enable us to explain the results of our case.

Therefore we resort to this analytical framework that allows the combination of several factors to

explain the policy results. As for the method, this is a theory-based qualitative case study that is

supported by a systematic evaluation of primary sources from the political process, an evaluation of

press articles from the years 2012-20162, and the secondary analyses mentioned above. The article

should explain why, in the discussion on fracking in Germany in the last five years, particular

regulations were discussed and why yet another fracking regulation with relatively far-reaching

prohibitions and requirements was enacted. Neither the economic feasibility of fracking for the

energy industry nor its ecological desirability is the object of this analysis.

2. Three varieties of fracking regulation

2.1 Federal Mining Act

As long as there was no other regulation, the authorisation for fracking fell under the Federal Mining

Act, enacted in 1980, which came into force on 1 January 1982. The primary goal of this law was to

secure the supply of raw materials (§ 1 Nr. 1 BBergG; Böhm 2013: 49). The procedure for the

exploration for and extraction of mineral resources that are free for mining comprises the concession

procedure and the operations plan procedure. The project sponsor attains a legal position with the

exploration permit in accordance with Article 7 of the Federal Mining Act through which he is

protected from competing applications for the exploration and production fields in question (a con-

cession, Böhm 2013: I). For the actual exploration other permits are required: operation plans

according to the Federal Mining Act and permits according to specialised legislation, e.g., the Water

Resources Act (Wasserhaushaltsgesetz, WHG) (Böhm 2013: II). According to Article 11 Nr. 10 of the

Federal Mining Act, an exploration permit is to be denied when “preponderant public interests

preclude the exploration in the entire field”, among other reasons. Also under this category fall

environmental issues that are not mentioned explicitly as possible grounds for denial and that are

only considered tenuously, due to, among other things, the requisite specifying “the entire field to be

allocated” (Eftekharzadeh 2013: 704). Businesses wishing to obtain an exploration permit apply to

the competent mining authority (at the Land level). According to Article 15 of the Federal Mining Act,

in turn it must then give the opportunity to express their opinion to those authorities that are tasked

with discerning the public interest in accordance with Article 11 Nr. 10 of the Federal Mining Act

(Attendorn 2011: 567), to which the competent water authority belongs, in particular. However,

their opinion need not be taken into consideration. Whether municipalities are to be included among

these authorities that count discerning public interests as one of their tasks, is disputed (Böhm 2013:

49f.). In the past, local communities in which exploration was supposed to be carried out were not

involved (Attendorn 2011: 567; Eftekharzadeh 2013: 705), so that mayors as well as citizens often

had to learn through the press that an exploration permit had been issued to their municipality

2 The term “fracking” was used as an advanced search option in the WISO data bank for the period mentioned above. The

media was restricted to “press in Germany, national journals”. For the time period between June 2013 and the present, “fracking” was entered again as a topic under “filter search results”. For the previous time period this was not an option, because previous to June 2013 fracking was not yet included in the WISO topic classification. For the time period between 1 January 2012 and 1 June 2013, the same search steps were chosen. However, the search results could not be filtered in this case, because the topic of fracking was not yet categorised as a topic in WISO. This article cannot enter into the clear differences in the treatment of the topic among the individual media (but see the approach by Schirrmeister 2014: 5).

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(Ausschuss für Umweltschutz, Naturschutz und Reaktorsicherheit 2011: 14). At first glance, the

mining authority has no discretion, meaning that when there is no reason for denial, the applicant

has a legal claim to the issuance of a permit (Böhm 2013: 50). However, legal experts debate whether

this could be put into perspective insofar as the stipulations derived from water law might define the

“preponderant public interests” (Böhm 2011; Frenz 2016). Environmental impact assessments3 (EIAs)

for fracking projects were stipulated as of yet starting at a daily extraction volume of more than

500,000 m3, according to Article 1 Nr. 2 of the EIA Mining Ordinance.

2.2 The regulation project of 2013

In February of 2013, the former Minister of the Environment, Altmaier (CDU) and former Minister of

Economics, Rösler (FDP), agreed to an initial proposal for a specific regulation for fracking (BMU &

BMWi 2013; Spiegel online, 25 February 2013), which was sharpened on a few points in the following

consultations. The starting point of the regulation was “that the procedure can be applied under the

condition that the protection of drinking water is ensured, and that no adverse impact on the

environment occurs” (BMU & BMWi 2013). Accordingly, the Federal Mining Act, the EIA Mining

Ordinance and the Water Resources Act were to be strengthened with regard to the authorisation of

fracking. Particularly, fracking in drinking water protection areas was to be prohibited; the mining

authorities, moreover, were to be allowed to issue permits only in agreement with the water autho-

rities. Furthermore, a general EIA requirement was to be introduced for fracking projects. However,

the draft was not introduced to parliamentary proceedings in the summer, because the support

within the government coalition appeared not to be secured (see below).

2.3 The regulation project of 2015

At the end of 2014 the grand coalition then in power agreed on a new regulatory package that

included changes to the Water Resources Act, the Federal Nature Conservation Act, as well as of the

Federal Mining Act and the EIA Mining Ordinance, and that was officially submitted in April 2015

(BMU 2015; BMWi 2015; BT Drs. 18/4713). By means of a permit requirement for water usage in the

Water Resources Act, unconventional fracking for natural gas in shale and coal beds was supposed to

be categorically prohibited above 3000 m. Exploration drillings for scientific purposes were supposed

to be possible in depths at or beyond 3000 m, as long as the fracking fluid did not jeopardise water

quality. Starting in 2018, an independent expert commission4 was meant to examine and decide, in

yearly reports, whether the environmental impacts were innocuous and the risks controllable

(Boehme-Neßler 2015). In this case mining and water authorities could issue permits for commercial

purposes from 2019 onward where the case applied. Conventional (and in principle, also unconven-

3 The environmental impact assessment (EIA) is a procedural instrument of environmental policy the introduction of which,

in Germany, goes back to an EU directive. The ways in which a project affects humans and the environment can be

recorded in a report by means of an EIA. The public, authorities affected professionally, as well as citizens and authorities in

neighbouring states that could be affected can take a position with regard to this. The competent authority must evaluate

the information and the positions when authorising the project, and it must consider the results of the EIA (BMUB

homepage, www.bmub.bund.de/themen/strategien-bilanzen-gesetze/umweltpruefungen-uvpsup/kurzinfo/).

4 Members of the commission should come from the Federal Environmental Agency, the Federal Institute for Geosciences

and Natural Resources (Bundesanstalt für Geowissenschaften und Rohstoffe, BGR), the Helmholtz Centre for Environmental

Research in Leipzig, a state office for geology and a state water authority (BMWi 2015: 2).

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tional) fracking in sensitive areas (water protection areas and mineral spring protected areas serving

the public water supply) was supposed to be banned. This ban was supposed to be able to be

extended, by means of state law, to the catchment area of mineral water deposits. Moreover, there

was to be no fracking in nature conservation areas or in national parks5. As long as fracking is not

prohibited, there should be a general EIA requirement, as well as requirements of publication and

reporting of all substances and mixtures used. Finally, in case of mining damage the burden of proof

should be reversed (BMUB 2015; BMWi 2015, BT-Drs. 18/4713). The legal package was enacted at

the beginning of April 2015 in the Cabinet and in May 2015 it was debated in the German Bundestag

and in the Bundesrat (Federal Council), but then it was not approved for a long time (see below).

2.4 The regulations adopted in 2016

The regulatory package that was finally approved in the German Bundestag shortly before the

summer recess of 2016 is based essentially on the draft outlined above, but it contains five central

changes with regard to unconventional fracking. First: Commercial fracking in shale, argillaceous rock

and marl, as well as coal seams (unconventional fracking) is not approvable according to the Water

Resources Act and is therefore prohibited – no longer with the scientifically controversial restriction

“to 3000 m”. Second: This ban applies indefinitely (as intended before), but it must be reviewed in

2021 (as opposed to 2019, like before). Third: The number of possible scientific test drillings is limited

to four. Fourth: Though the expert commission submits a recommendation on whether the environ-

mental impact of the test drilling appears harmless, and therefore the risks for fracking appear

controllable, in the end the German Bundestag decides whether fracking will be allowed in the

future. Fifth: Test drilling can only take place if the competent Land government agrees to it (BT Um-

welt-Ausschuss, Drs. 18(16)401 in Verb. mit BT-Drs. 18/4713).

Fracking for tight gas in sandstone remains approvable, but only under the conditions described

above, however, which have been strengthened along a few points: The ban now applies also to the

catchment areas of mineral water deposits, mineral springs and points of water extraction for foods.

In addition, conditions were adopted for the disposal of reservoir water, which – in a somewhat

simplified way – in the case of the new permits can only be disposed of where it came from (BT

Umwelt-Ausschuss, Drs. 18(16)401 in Verb. Mit BT-Drs. 18/4713).

If we compare the four varieties of regulation it becomes quite clear that they display, both

procedurally and substantively, an increasing consideration of environmental issues in the process of

the Federal Mining Act, from the proposal of 2013 and the regulation package from the end of 2014

to the regulation package finally approved in 2016. This increased consideration is surprising and

needs an explanation.

3. What explains the policy outcome?

After the first evaluation of the four regulation variants, the following, more precise, questions arise,

from a policy analysis perspective. First: How did it happen that a new, specific regulation of fracking

came onto the agenda at all? Second: Why did the regulation project of 2013 fail? Third: What

explains the content of the package submitted at the end of 2014 and approved in early 2015?

5 In contrast, in Natura 2000 areas there should be no ban on conventional fracking.

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Fourth: Why was there a delay between early 2015 and the summer of 2016? Fifth: Why was the

regulation package finally approved in 2016 and what explains the rather strict approach to

regulation? In order to answer these questions, first the political process of fracking will be presented

below, before it is analysed more closely with the aid of PIDA. The objective is to identify the causal

factors for the different regulation variants.

3.1 The political process of fracking regulation

Start of the political process and policy initiative at the state level

Between 2007 and 2010, the district government of Arnsberg, as the competent mining authority for

North Rhine-Westphalia, had already approved exploration applications, which affected

approximately 60% of the area of North Rhine-Westphalia (Ausschuss für Umweltschutz, Naturschutz

und Reaktorsicherheit 2011: 17)6. An intensified political discussion on fracking first began in the year

2011 (according to Tosun & Lang 2016 as well). This was because the red-green state government of

North Rhine-Westphalia, in office since 2010, made an request in the Bundesrat, in the summer of

2011, for the extension of the scope of application of the EIA to include fracking activities, but this

was not successful (Bezirksregierung Arnsberg 2011; Frenz 2012). In November 2011 it decided not

to continue to grant permits for exploration and extraction of gas by fracking, until after there is a

scientific assessment (moratorium), and commissioned a report on the exploration and extraction of

natural gas from unconventional deposits in North Rhine-Westphalia, which was meant to examine

mostly the effects of fracking on the ecosystem and the public drinking water supply. In September

2012 this report came to the conclusion that the extraction of unconventional gas deposits by

fracking in North Rhine-Westphalia could be associated with an array of considerable environmental

effects and risks, particularly due to the fracking fluids (Meiners 2012: 60f.). A conclusive evaluation

of the risks was, however, allegedly impossible due to a lack of knowledge and information (62) at

the time, but fracking in North Rhine-Westphalia in water-sensitive areas was to be excluded until

further notice, and fracking in general was to remain banned as long as the hazard potential of the

fracking fluids were not reduced, a proper solution for the disposal of the reservoir water were

found, and a series of further findings existed (Meiners 2012: 63). In response to the report in

September 2012 the state government extended the moratorium of 2011 (Spiegel online

07.09.2012). However, the moratorium only had a political character; legally the applicants were still

entitled to issuance of an exploration permit according to the Federal Mining Act, as long as there

were no grounds for denial. For this reason the moratorium was considered to be “legally wobbly”

(Ruhrnachrichten 09.07.2014; cf. Frenz 2013), and it remained in place only as long as the companies

did not take legal action against it (see Ministerin Hendricks, BT-PlPr, 18. WP, 103. session,

07.05.2915: 9781; taz 01.07.2015).

Political controversies at the federal level

Since 2011 the opposition groups, SPD, B`90/GRÜNE and Die Linke have tried, in the German

Bundestag and through different actions, to bring the then black-yellow federal government to

tighten the regulations on fracking and to impose a preventive moratorium (e.g., BT-Drs. 17/7612;

BT-Drsn. 17/9560; 17/9034; 17/9390; 17/8133; 17/11213; 17/11829). In November 2011 a hearing

6 In addition, exploration permits were granted for Lower Saxony, Bavaria, Baden-Wuerttemberg, Saxony-Anhalt, Thuringia

and Hamburg and they were requested for Hessen (Töpfer & Kreutz 2013: 12; BT-Drs. 17/11213).

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took place in front of the Environment Committee of the German Bundestag on the topic of

“Drinking Water Conservation and Citizen Participation in the Extraction of Unconventional Natural

Gas”. A broad spectrum of scientists, associations and other actors was given the opportunity to

express their views here (Ausschuss für Umweltschutz, Naturschutz und Reaktorsicherheit 2011).

In early 2012 the “neutral expert circle”, which had been appointed by Exxon already in 2011,

presented the “Risk Study on Fracking”, after a dialogue process lasting one year (Neutraler

Expertenkreis 2012; Bornemann 2016). The study addresses many risks associated with fracking (e.g.,

water pollution and use, competition for land, ecological balance), but they were estimated to be

controllable in the end (Neutraler Expertenkreis 2012: 57ff.). The expert circle spoke against a ban

and for the approval of demonstration projects (Neutraler Expertenkreis 2012: 75). In May 2012 the

Economics Committee of the German Bundestag organised a hearing on the realignment of mining

law (Ausschuss für Wirtschaft und Technologie 2012). Also in May, the German Federal Institute for

Geosciences and Natural Resources (Bundesamt für Geowissenschaften und Rohstoffe, BGR), highest

technical-scientific authority, and the departmental research institute in the business division of the

Federal Ministry of Economics (Bundeswirtschaftsministerium, BMWi) presented a study that judged

the deposits of shale gas as being relevant and the environmental risks of fracking to be controllable

(BGR 2012). In contrast, the Federal Environment Agency (Umweltbundesamt, UBA), the

departmental research institute of the Federal Environment Ministry, arrived at a critical assessment

of fracking (UBA 2012). According to it, there was still a lack of much fundamental information to

make a substantiated judgement of the risks and their technical controllability (UBA 2012: D2). The

UBA recommended at least the temporary abandonment of fracking in water-sensitive areas7, the

introduction of a general EIA obligation and a public participation that would accompany projects

(UBA 2012: D14), as well as a tightening of the stringency of legal regulations concerning water, and

an integration of the mining law security requirements into environmental law (UBA 2012: D 17).

Subsequently, the opposition SDP group in the German Bundestag requested that the federal

government should implement the results of the UBA study (BT-Drs. 17/11829).

Intensification of controversies around fracking in different federal states

At the end of 2012 it became public knowledge that the State Agency for Mining, Energy and Geology

(Landesamt für Bergbau, Energie und Geologie, LBEG) in Hannover, which is also in charge of

Hamburg, had granted an exploration permit to Exxon for the Hamburger Vierlande, an extensive

fruit and vegetable cultivation area, and parts of Harburg and Bergedorf (Hamburger Abendblatt

20.12.2012; Die Welt 20.12.2015; 15.02.2015). In the process the economics authority had approved

the project apparently in spite of the misgivings of the water authority. Also in 2012, North Rhine-

Westphalia and Schleswig-Holstein took the initiative for a fracking moratorium in the German

Bundestag, which was joined by Baden-Württemberg, Bremen and Rheinland-Pfalz.

Further politicisation of the topic: dispute of reports and “promised land”

In December 2012 the German Bundestag debated thoroughly on the existing reports on fracking

(BT-PlPr 17. WP, 214. Session, 13.12.2012: 26297-26319). At approximately the same time, reports in

the media about fracking in the USA multiplied, where the basic attitude was predominantly positive

7 What is meant are water protection areas I-III, water extraction areas for the public drinking water supply, mineral spring

protection zones, and mineral water areas (UBA 2012: D3f.).

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and the potential for the energy industry was emphasised (e.g., Welt am Sonntag 18.11.2012; Focus

Money 21.11.2012; different: Die Zeit 22.11.2012). Gradually, reports became more critical (e.g., Zeit

online 03.12.2012). In the first months of 2013 there was a clear politicisation of the topic: Citizens’

initiatives spoke out and criticised the lack of citizen and municipality participation; county and city

councils adopted resolutions against fracking (Spiegel online 11.02. 2013; Schirrmacher 2014: 3; cf.

Tosun & Lang 2016, figure 1). In January 2013 the BGR and the state geological services of the

German states spoke out and expressed, in an opinion paper that was kept under lock and key at first

(HBl. 03.01.2103; Spiegel online 03.01.2013), their criticism of the methodological bases and the

results of the reports of the UBA and the North Rhine-Westphalia state government. In March, the

paper was then published (BGR & SDG 2013). At the beginning of 2013 the Bundesrat determined

that the Länder would no longer decide on any exploration applications for fracking in

unconventional deposits as long as the necessary data basis to carry out an assessment is not present

and that “it has been settled without a doubt that a deleterious change in the water quality cannot

happen” (BR-Drs. 754/12, Beschluss vom 01.02.3013). Furthermore, the Federal Government was

asked to introduce an EIA obligation for fracking projects. In addition, a working group made up of

members of the groups CDU/CSU and FDP requested that Ministers Rösler (economy) and Altmaier

(environment) should undertake a regulation of fracking (Arbeitsgruppe Fracking 2013).

Concurrently, the American film “Promised Land”, directed by Gus Van Sant, which raises the issue of

fracking in the US, was shown in the Berlinale film festival (Der Tagesspiegel 09.02.2013). Also in

February 2013, Ministers Rösler and Altmaier agreed on the regulatory package mentioned above.

In May 2013 the Advisory Council on the Environment (Sachverständigenrat für Umweltfragen, SRU)

presented a critical statement on fracking, in which in particular the need for it in energy policy was

questioned (SRU 2013). Also in May 2013, 26 citizens’ initiatives in Korbach, Hessen, demanded “an

immediate ban on all forms of fracking, without exception”, in the “Korbach Resolution”

(Bürgerinitiativen gegen Fracking 2013). Friends of the Earth Germany (BUND) presented a bill on the

fracking ban (BUND 2013). At the beginning of June 2013 the legislative proposal presented by the

Federal Government failed, because the CDU/CSU faction decided not to introduce the draft in the

ending legislative period. The background was that the regulation did not go far enough for many

CDU/CSU parliamentarians, but the coalition partner, the FDP, rejected a more stringent version

(Spiegel online 04.06.2013; SZ 04.06.2013; FAZ 04.06.2013; Stern 05.06.2013). At the same time both

parties were interested in keeping the topic, which was by then strongly politicised and contr-

oversially discussed, out of the imminent parliamentary election campaign (Spiegel online

04.06.2013).

Land level: new conflicts and policy initiatives of the Länder in the Bundesrat

In the summer of 2013, in Hessen, the Darmstadt Regional Council rejected, by instruction of the

Ministry of the Environment, led by the CDU, an application from the Canadian company, BNK

Petroleum, for the issuance of an exploration permit. The BNK-Deutschland GmbH filed a suit against

the state of Hessen, which it retracted, however, as part of an out-of-court settlement (FR

20.08.2014).

In May of 2014 the Conference of Environmental Ministers determined unanimously that fracking should be

banned (UMK 2014: 61). At the beginning of July 2014 Lower Saxony introduced several drafts to the

Federal Council with which unconventional fracking was to be banned, and conventional fracking was

to be more closely regulated (Drs. 285/14; 283/14). The red-green government wanted to “rescue”

11

conventional fracking, which was so economically important for Lower Saxony. At the same time,

Schleswig-Holstein, led by the SPD; Baden-Wuerttemberg, led by the Green Party, and Hessen, led by

the CDU, introduced a resolution proposal on behalf of the Conference of Environment Ministers to

the Federal Council in order to request the Federal Government (which was a grand coalition since

the end of 2013) in particular to forbid unconventional fracking involving the use of eco-toxic

substances and to change the approval procedure comprehensively (Drs. 281/14; Bundesrat, 914.

Session, 11. Juli 2014: 231ff; taz 01.07.2014).

Reaction of the Federal Government: key issues paper and bill 2014

In July 2014, the Minister for Economics, Gabriel, and the Minister for the Environment, Hendricks,

presented a key points paper in July 2014, according to which fracking projects for gas extraction

from shale and coal beds above 3000 m were to be banned until 2021 (BMWi & BMUB 2014).

Accordingly, the German Bundestag was to examine “the appropriateness of the statutory prohi-

bition”. Another report presented by the UBA proposed to allow commercial fracking projects only,

“if all technical uncertainties, particularly those concerning disposal, are eliminated” (UBA 2014: AP

7- 105). The development of the key points paper into a bill was delayed because of an intervention

by the Head of the Chancellery, Altmaier: He wanted to allow more test drilling, permit drilling even

above 3000 m and, in addition, allow the prohibition law for 2021 to expire (Spiegel online

09.10.2014; taz 29.09.2014). Only at the end of 2014 did the grand coalition agree on a bill (Börsen-

Zeitung 21.11.2014), which diverged from the key points paper mostly in that it involved the

appointment of an expert commission that, as was pointed out above, beyond its role solely of

scientific advisory, would also have a saying in the decisions regarding future fracking measures

(Boehme-Neßler 2015: 1249; BT-PlPr 18. WP, 103. Session, 07.05.2015).

In February 2015, the Federal Ministry of Economics and the Federal Environment Ministry organised

a hearing of associations on the planned fracking law, where no less than 50 associations delivered

their opinions on the matter (BMWi 2015). The Cabinet approved the bill at the beginning of April.

The opposition labelled the regulations as the “fracking-enabling-law” and as a gift for the fracking

lobby, at the German Bundestag debate on 7 May 2015 (BT-PlPr 18. WP, 103. Session, May 5, 2015:

9783). At the Federal Council debate on 8 May, the Prime Minister of Nordrhein-Wesphalia, Kraft,

criticised the bill because it did not allow the Länder to forbid conventional fracking in their

jurisdictions, whereas the Prime Minister of Lower Saxony, Weil, emphasised the significance of

conventional fracking for his Land (BR 933. Session, May 8, 2015: 161). There was a dispute between

the Federal Government and the Länder at this time, as to whether the law was even subject to

approval (Das Parlament Nr. 20-21, May 11, 2015: 3; FAZ 30.06.2015).

From delays in 2015 to agreement before the summer recess of 2016

However, the law was not approved in the German Bundestag for a long time. There were several

forms of resistance behind this. Parliamentarians from the CDU/CSU faction critiqued that the

environmentally sound disposal of the reservoir water was not regulated (Das Parlament Nr. 20-21,

May 2015: 2). Several parliamentarians from the CDU/CSU faction as well as, especially, the SPD

faction, were critical of the role of the expert commission, and wanted the German Bundestag,

instead of the Commission, to decide on whether commercial fracking would be possible starting in

2019 (“parliamentary reservation“ BT PlPr. 18. WP, 103. Session 07.05.2015: 9792; FAZ.NET

30.06.3015, SPD-Fraktion 2015). The number of test drillings was also a point of contention (BT PlPr.

18. WP, 103. Session 07.05. 2015: 9792; FAZ.NET 30.06.3015). Purportedly, even the North Rhine-

12

Westphalia State Government had “mobilised its forces” against the law. At the end of 2015,

Abgeordnetenwatch published the results of a survey conducted by Infratest dimap, according to

which 61% of Germans is in favour of a complete ban on fracking (Infratest dimap 2015).8 At the

beginning of 2016 the BGR presented a new study (BGR), in which the risks of fracking are assessed

as being controllable. In February 2016 the Green Party in opposition criticised the standstill in

fracking regulation, and introduced a bill with which fracking was to be fully banned (BT-Drs.

18/7551). With this they were attempting to put pressure on the government factions where the

leadership could now achieve an agreement on various points of contention regarding fracking, but

not on the questions regarding the expert commission or the parliamentary reservation (PlPr 18. WP.

159, Session, 26.02.2016: 15730). Media reports on the connection between (“conventional”)

fracking and an above-average number of cases of cancer in the district of in Lower Saxony (“Does

death come from the earth?”, FR 20.04.2016), brought the topic back onto the political agenda.

In mid-June 2016 it was still uncertain whether a new regulation would even be approved within the

legislative period (SZ 15.06.2016). Shortly thereafter, however, the discussion showed some mo-

vement: In the middle of June the Federal Association for Natural Gas, Oil, and Geoenergy (Bundes-

verband Erdgas, Erdöl und Geoenergie, BVEG) threatened that affected member companies would

now terminate the moratorium and sue against the denial of exploration permits if neither an

approval according to the Federal Mining Act were possible nor an adoption of the new law were a

prospect (BVEG 2016) – a quite promising undertaking, when one considers the regulations of the

Federal Mining Law. The association had the support of the Economics Minister for Lower Saxony,

Lies (SPD), who also threatened to terminate the moratorium, which was also the reason for

“conventional” fracking no longer being permitted in Lower Saxony, where it had been long

practiced, and to approve applications again according to the Federal Mining Act. The moratorium

allegedly had led to a reduction in the number of jobs in Lower Saxony (Nds. WiMi 2016;

Westdeutsche Zeitung 20.06.2016; Die Zeit 15.06.2016). The Land Government of North Rhine-

Westphalia also applied pressure: Since in Nordrhein-Wesphalia both the SPD and the CDU reject

fracking, they would have had explaining to do in the forthcoming Land election campaign of 2017,

had they not been able to “get a grip” on the problem at the federal level. Now the coalition factions

agreed on crucial changes to the regulation package, within a few days. The role of the expert

commission, which had been so problematic for the SPD faction, was reduced to an advisory board,

and the decision on whether fracking would be allowed in the future was now to be made by the

German Bundestag. In addition, no test drilling can now take place against the will of the Land

governments (see Ch. 2.4 and BT Umwelt-Ausschuss Drs. 18(16)401 and BT-Drs. 18/4713). The bill

was discussed succinctly in the factions and – against the protest of the opposition factions – was

approved only a few days later, on 24 June 2016, in the German Bundestag, to be confirmed on 8 July

by the Bundesrat9.

3.2 Explanation with the aid of PIDA

The description of the political process might already have made clear that explanatory approaches

8 However, the question appears suggestive; there is no alternative to “complete ban” which one could favor or reject.

9 For the laws adopted – with the exception of the ordinance on the EIA – the approval of the Bundesrat was not required

(though this had been an issue of dispute between the Federal Government and the Länder). Yet, the Bundesrat debated the issue and finally approved the bills (BT-Drs. 18/4949: 1; Das Parlament Nr. 20-21, 11. Mai 2015: 3; FAZ 30.06.2015).

13

that focus on one factor only (such as the power of interest associations or partisan politics) do not

seem able to explain the policy results in our case. Therefore, we use the political process inherent

dynamics approach (PIDA) for the analysis of the policy process, which we developed and which is

presented in more detail elsewhere (Böcher & Töller 2012b; 2016). This approach understands

political processes neither as stepwise problem-solving processes, nor as mere aggregation of

rational interests of actors. Rather, political processes are understood to be inherently dynamic, and

to be driven by unpredictable events and unintended effects. In the course of this, the explanatory

factors of AEP include: problem structures, institutions, actors, instrument alternatives and

situational aspects (Böcher & Töller 2016). The approach is not a self-contained theory that applies or

not, but rather an analytical framework that helps to sort and structure elements of the political

process and which indicates the causal mechanisms through which individual factors and their

interaction work to produce a political result. For the analysis of the political process for the

regulation of fracking, we view in this case the problem structure, institutions and actors as important

explanatory factors, as we will explain in the following paragraphs.

Problem structure

With regard to the problem structure, three central aspects arise, each of which had an influence (of

different magnitude) on the political process and its results.

Fig. 1: Energy price trends from 2000-2016. Source: DESTATIS 2016

First, the energy industry context: Supporters of fracking lead the security of the supply into the field

(SZ 04.07.2014). This is because, in connection with the German CO2 -reduction targets and the

German “Energiewende”, natural gas, more than 80% of which has to be imported now, plays an

important role (BT-Drs. 17/7612: 2; Töpfer & Kreutz 2013; cf. Schirrmeister 2014: 1). The Federal

14

Institute for Geosciences argued that shale gas from domestic reserves could “contribute significantly

to Germany’s natural gas supply” and increase the security of supply in this way (BGR 2012: 48).

Furthermore, it added that shale gas would help the German economy to assert its competitiveness

(cf. Schirrmeister 2014: 4; European Commission 2014: 5; Die Welt 17.09.2013). However, opponents

of this technology consider that fracking is not necessary for energy policy, that it does not

contribute relevantly to the energy revolution (SRU 2013: 45), and that it could be even detrimental

to the development of energy efficiency (Rehbock 2013: 3; ZEW 2013). Since 2012, the price of gas

fell significantly (Fig. 1), so that, as in the US, one might increasingly doubt a profitable extraction of

shale gas in Germany as well.

Second, the uncertainty of the environmental effects of fracking: To date, there are still large

knowledge gaps and uncertainties in the assessment of possible environmental effects of fracking,

especially with regard to the actual chemicals used and their effects on groundwater, as well as the

problems associated with the disposal of reservoir water and the causation of earthquakes (UBA

2012; 2014; Meiners 2012; EPA 2015; BGR 2012; 2016). In addition, recently, questions on the

health-related consequences for the population in areas where conventional fracking is already

carried out have become a topic of discussion (see below). Due to this uncertainty, scientific studies

that try to explore the risks associated with fracking in particular play a major role (see above). In the

political process these assessments did lead to an increase in technical knowledge about the

properties of a technology and the environmental risks associated with it, but in no case did they

have the effect of providing policy with unequivocal knowledge. In all, the numerous evaluations

sooner led to an intensification, rather than to a mollification, of the political controversies

surrounding the fracking debate.

Third, the regionally disparate shale gas deposits, as well as those of tight gas: Firstly, the shale gas

deposits in Germany that may possibly be exploited through “unconventional” fracking are unevenly

distributed among regions (see Figure 2), so that the concern regarding possible environmental

effects, which would occur primarily locally, would also be different in different regions. In Germany,

major deposits are presumed to be found in Lower Saxony and North Rhine-Westphalia, as are

smaller deposits in Baden-Württemberg, Hessen, Thüringen and Sachsen-Anhalt (Meiners 2012: 4)..

This is an important premise for the exposition on the institutions and actors to follow below. In

addition, only in Lower Saxony has gas been extracted since the 60s in an appreciable measure, and

has been “helped” for some 30 years by means of fracking. Since 2012 the Lower Saxony Land

Government has identified these natural gas wells for tight gas as “conventional” fracking, something

which critics called “conscious deception” (DNR & BUND 2015). Whereas in other Länder fracking is

debated as a conflict of potential risks versus potential economic benefits, in Lower Saxony there is

more than one relevant industry with about 20,000 jobs (Nds. WiMi 2016), which has to be weighed

against what are hitherto only potential risks. In fact, the state budget is used to the revenue (mining

royalties and mineral royalties) (in 2012 for Lower Saxony this amounted to 695,422,250 euros, Nds.

Landtag, Drs. 17/1745), even if only 15% of this remains in the Land due to the financial equalisation

scheme between the Federal Government and the Länder. With this, due to the known (and

customary) benefits of natural gas extraction, Lower Saxony is in a situation of cost-benefit

assessment that is different from those in other Länder, where unknown risks are weighed against

unknown benefits.

15

Figure 2: Shale gas deposits in Germany

Source:

https://www.umweltbundesamt.de/sites/default/files/medien/419/bilder/kohlenwasserstoffvorkom

men.jpg

16

Institutions

The basic assumption of the different variants of institutional theory is that institutions, understood

to be formal and informal systems of rules, influence the course of political processes, and with them

their results, more than any other factor (Peters 2012: 184). In this sense, the PIDA also sees

institutions as an important influence dimension for environmental policy processes (Böcher & Töller

2012b). In the case observed here, federalism is indeed a central influence factor throughout the po-

litical process. The federal division of powers produces, with the Land governments – beyond the pu-

rely legal competences – wilful and at the same time politically influential actors. In accordance with

the division of powers of the constitution, the field of mining (as a subcategory of business law, Art.

74, Par. 1, Nr. 11 of the constitution) falls within the concurrent legislation (Art. 72 of the constitu-

tion), whereupon the states have the authority to legislate only as long as the federation has not ma-

de use of its legislative authority. Thus, in the field of mining law, the Länder no longer have the com-

petence to legislate, since the Federal Government had enacted federal legislation already in 1980.

The Länder governments participate in the federal legislation through the Bundesrat. If the bills

produced by the Federal Government entail an effect on the organisational and administrative

procedures of state authorities (Art. 84 Par. 1, Art. 85, Art. 108 of the constitution) they are vetoed.

Furthermore, the Länder in administrative federalism are responsible for the execution of federal

law. As outlined above, the shale gas deposits are distributed in a disparate way and affect some

federal states to a particularly great extent for this reason.

Actors

Thus, the Länder have the obligation, when one considers the legal situation, to execute federal law,

and in such a situation the competent authority does not even have a margin of discretion – due to

the regulations of the Federal Mining Act. Nevertheless, the Government of North Rhine-Westphalia

allowed itself to impose a moratorium – a purely political measure. Out of this decision, which was a

matter solely of North Rhine-Westphalia at first, and which other states joined, came an initiative in

the Bundesrat, where North Rhine-Westphalia and Schleswig-Holstein achieved a moratorium for all

Federal States to be approved, which was of course legally as unstable as the North Rhine-Westphalia

moratorium. Through the Bundesrat the Länder can introduce initiatives in order to put pressure on

the Federal Government (as happened in 2014). During the phase between early 2015 and the

summer of 2016 it became clear once again how different the attitudes of the state governments

(even those composed of the same parties) can be with regard to fracking, as, on the one hand North

Rhine-Westphalia’s Prime Minister, Kraft, demanded that the decisions on fracking should be left to

the states (in order to be able to forbid fracking for North Rhine-Westphalia), and on the other hand

the Land Government of Lower Saxony took extensive action in order to be able to allow (conven-

tional) fracking again.

A central question in policy analysis that is also taken up in PIDA is the extent to which political

results are determined by partisan politics. The party differences theory says that parties differ in

their positions on particular questions of content and that these differences, if the party participates

in government, are also reflected in the corresponding regulations (Wenzelburger 2015). The validity

of the party differences theory in environmental policy is disputed. What is clear is that the green

parties in government do in fact follow a more stringent environmental policy; this can be the case

with social democrats as well – but it does not have to be (Knill et al. 2010: 328;). In the case of

fracking the picture is highly inconsistent in this regard. The federal SPD did indeed act in a manner

17

critical of fracking, and it advocates – also in government responsibility – a far-reaching regulation,

including up to a ban (e.g., BT-Drs. 17/8560; 17/11829). At the same time, however, the Hamburg

Senate in 2012/2013, governed exclusively by the SPD, took no exception to an exploration permit.

The fact that after the change of government the SPD-led minority government in North Rhine-

Westphalia dealt with fracking in a way fundamentally different from the CDU-led previous govern-

ment speaks for the party difference. The Greens (e.g., BT-Drs. 17/8133) and Die Linke (e.g., BT-Drs.

17/11328) are categorically for a ban on fracking, while the FDP is, or was, equally categorically

against regulation (“overregulation”) (FDP 2013). In the case of the CDU the image is less consistent.

The representatives of the business wing of the German Bundestag faction (e.g., BT-PlPr 17. WP, 214.

Session, 13.12.2012: 26304) are indeed for a moderate regulation of fracking (more or less as

intended in the 2013 law) in order to allow permits; however, it was precisely this moderate

regulation that was considered to be insufficient by some 100 parliamentarians from the CDU/CSU

faction10 (for example, from North Rhine-Westphalia, Lower Saxony, Bavaria or Baden-

Württemberg), in whose constituency fracking plays an important role. In 2012 the North Rhine-

Westphalia CDU had already spoken out for a compulsory EIA for test drilling (Frenz 2012: 126). In

Hessen, CDU Minister Puttrich was probably the first to mandate the denial of an exploration permit.

One can see the effect of this complex constellation within the CDU/CSU particularly in the defeat of

the regulation package of 2013: Whilst the Environment Minister, Altmaier, saw fracking critically

and strived for a clear restriction, the business wing of the CDU as well as the liberal Minister for the

Economy, Rösler, were concerned with preventing a ban. CDU Parliamentarians with shale gas

deposits in their constituencies also strived for a more stringent regulation of fracking, because they

feared that their voters would otherwise punish them. This applies in respect of the then

forthcoming 2013 parliamentary elections as well as in regard to the ubiquity of parliamentary

elections. Ultimately, the disparate shale gas deposits, mentioned above under “problem structure”,

together with the expectability of local environmental damage and concomitant lack of participation

opportunities for local actors in accordance to the Federal Mining Act, levered the party difference in

that it broke up the initially business-friendly position of the CDU/CSU Bundestag faction (e.g., BT-

PlPr. 18. WP, 103, Session, 07.05.2015: 9780-9803). The positions of the greens also varied

considerably: While at the federal level (as part of parliamentary opposition) and in North Rhine-

Westphalia (as part of a red-green government) they favoured a total ban of all kinds of fracking, in

Lower Saxony (as part of a red-green government as well) they supported the demand to continue

conventional fracking. In any case, the same constellation explains in part the standstill in the

adoption of the regulatory packages between early 2015 and the summer of 2016: The regulation

planned in 2015 did not go far enough for the parliamentarians of the SPD and part of the CDU/CSU

factions on some points. The Länder of North Rhine-Westphalia and Lower Saxony, with their very

contrary positions – in spite of having the same political party composition – were significant driving

forces for the successful adoption. This serious difference between the two Länder may have been a

cause for the decision of the government factions in the Federal Government to bind even test

drilling to the consent of the State Government.

10 This “CDU Natural Gas Group” demands, among other things, preparation of the reservoir water above ground, and the

annulment of the 3000 m limit and of the restriction of the test drillings (e.g., BT-PlPr. 18. WP, 103. Session: 9799); to it belong, for example, the Parliamentarian Mattfeld (cf. BT-PlPr 17. WP, 214. Session: 26299); Parliamentarian Grindel (Grindel 2012); and the faction leader for the CDU in North Rhine-Westphalia, Karl-Josef Laumann (see also Die Welt 22.11.2014).

18

An important group of actors who influence environmental policy processes are the non-go-

vernmental actors. As has been recently frequent in environmental policy, on the side of the

economy the landscape is heterogeneous (Töller & Böcher 2016): Along with the companies that

want to carry out fracking projects (particularly Exxon, Wintershall, BNK Petroleum, Queensland Gas

Company), mainly the Trade Association for Natural Gas and Petroleum Extraction (WEG), the

Federal Association of Natural Gas, Oil and Goeenergy (BVEG), the Chemical Industry Association

(VCI) and the Federal Association of German Industry (BDI) support fracking and moderate regulation

(e.g., WEG 2012). It is, however, worth mentioning that the companies tolerated the nationwide

moratorium that was adopted in 2013 and which had already applied in some Länder before, in that

they refrained from filing lawsuits.

In particular, companies and associations for which water is a central resource (like the Alliance for

the Protection of Water, the Federal Association of the Energy and Water Industry, the Association of

Municipal Companies (Verband kommunaler Unternehmen, VKU), and the associations of the brewe-

ry industry and beverage manufacturers), took a position against fracking (Die Welt 27.11.2015). The

German Farmer’s Federation (Deutsche Bauernverband, DBV) also spoke out against fracking. The Fe-

deral Association of the Energy and Water Industry (Bundesverband der Energie- und Wasserwirt-

schaft, BDEW) found itself “on the fence”, as usual, and supported moderate regulation (BDEW 2011).

The fracking companies adopted different strategies, ranging from persuasion to threats (Töller und

Böcher 2016), in order to convince the public and decision-makers of the environmental

sustainability of the technology and its economic benefits (cf. Schirrmeister 2014: 4). In 2011, Exxon

initiated a dialog process with the participation of neutral experts (Neutraler Expertenkreis 2012;

Bornemann 2016; taz Nord 04.05.2012); in the summer of 2014 several companies approached

parliamentarians and demanded the speedy adoption of the planned law, because allegedly even

conventional drilling activities were no longer profitable without fracking, so that 20,000 jobs were

permanently jeopardised (Tagesschau 17.06.2015; taz 17.06.2015). In the autumn of 2014 Exxon

started a PR campaign and newspaper ads that notified that in the future fracking “would only use

two non-toxic and highly biodegradable additives” (Focus 06.10.2014). In the end, the threat by the

Federal Association for Natural Gas, Oil, and Geoenergy, BVEG, was decisive in overcoming the

blockade in the summer of 2016; its member companies would now file suit.

As is often the case with environmental issues, the trade unions were split (Böcher & Töller 2012a:

133ff.). The Food, Beverages and Catering Industry Trade Union (Nahrung, Genuss, Gaststätten, NGG)

is among the fracking opponents, whereas the Industrial Union for Mining, Chemicals and Energy

(Industriegewerkschaft Bergbau, Chemie, Energie, IG BCE) campaigned for fracking (with certain

regulatory restrictions) (IGBCE 2012, Der Spiegel 17.11.2014). This is due to the different interests of

the individual sectors of the unions: NGG has an interest in clean drinking water for food production,

whereas businesses and workers of the IG BCE would profit from fracking. As expected, environ-

mental associations (e.g., BUND, NABU, Deutsche Umwelthilfe) reject fracking categorically and

acted accordingly (e.g., BUND 2011; taz 10.06.2015; Yang 2015: 286).

So far, the activities of the actors just mentioned appear expectable. However, beyond a certain

influence of the gas industry on the CDU business wing and the chancellery, it does not appear as if

these actors had steered the political process significantly in any particular direction, influencing the

political result in that way. The situation is different in the case of the citizens’ initiatives. The

political process surrounding fracking is examined very closely in the political science discussions,

because here one can observe (perhaps for the first time) a serious transformation of the forms of

19

organisation and action of environment-related citizens’ initiatives and protest groups. The example

of the public discussion on fracking regulation can be used to show how such initiatives operate and

convey their protest today, where the Internet plays a central role. Anti-fracking initiatives, which

were started often beginning in 2012, indeed did have a mostly local bearing. However, they network

profusely and interregionally, via the Internet, specifically through the website against gas drilling,

www.gegen-gasbohren.de, which presents a central platform for some 30 citizens’ initiatives against

fracking that themselves have close to no organisational structures (Yang 2015: 290). In addition,

these groups act supralocally by reaching a broader public in that they distribute press articles,

reports, opinions, and backgrounds via the Internet (blogs, homepages, Twitter, Facebook, etc.). In

doing this, visualisation (particularly the film, “Gasland”11) and the emotionalisation of their concerns

represent important new elements of strategy (Yang 2015: 284). The collection of signatures against

fracking is also made easier by the Internet, for example, through the Open-Petition platform (Yang

2015: 292). Online petitions, like those using the campaign platform, Compact, play a major role at a

federal level (Yang 2015: 294). Furthermore, web applications are used in order to make transparent

the rejection or support of fracking by political parties and individual politicians, and to apply political

pressure (Yang 2015: 295). Different studies show that citizens’ initiatives against fracking gained

support in the first half of 2013, that the public discussion increased abruptly, and that a discourse

coalition against fracking, supported substantially by BUND and local citizens’ initiatives, was able to

influence public opinion decisively (Burgartz 2013; Schirrmeister 2014; Yang 2015: 295). Tosun and

Lang determined, with the aid of a network analysis, that after the parliamentary elections of

September 2013 the discourse coalition critical of fracking had grown and taken up a dominant

position in relation to the fracking supporters (Tosun & Lang 2016: figure 2).

4. Summary and outlook

This article first compared the regulation of fracking in the Federal Mining Act with the regulatory

packages presented in 2013 and at the end of 2014 (officially in spring 2015), as well as with the one

adopted in the summer of 2016, and it determined that the regulations in the Federal Mining Act

contain only the slightest environmental protection, both procedurally and substantively. In contrast,

the regulatory package that the grand coalition envisaged in 2015 and which was recently adopted

with some strengthening contains a comparatively extensive regulation that results in an indefinite

ban on commercial unconventional fracking. A merely moderate “back door” is the review of the

prohibition, planned for 2021 with the aid of the expert commission. Of central importance is that it

is the German Bundestag that makes the decisions and not (as initially intended) the expert

commission. The restriction of the test drillings for scientific purposes to four could attain no

practical relevance, because due to the approval requirements of the respective Land government, it

is questionable whether test drilling will be conducted anywhere at all.

“Conventional” fracking, which in Lower Saxony plays an important role, remains allowed, even if

under clearly more stringent requirements. However, local problem cases, like in the Rotenburg

(Wümme) district, could lead to a change in the perception of this technology in the future.

The reconstruction of the political process and its analysis with the aid of PIDA allowed us to show, in

11 https://www.youtube.com/watch?v=jV-bENteDiE

20

a second step, that neither various attempts to wield influence by the natural gas industry and its

associations nor partisan politics had a decisive influence on the political process. The companies

interested in fracking and their associations were able to keep open a “back door” for commercial

fracking by means of the introduction of an expert commission via the business wing of the

CDU/CSU, one which only has an advisory function in the now adopted version, however. Other than

that, it was unable to prevent the agreement on comparatively stringent regulations. Rather, it was

primarily the regionally disparate distribution of shale gas deposits, as an element of the problem

structure, which raised local concern with the topic of fracking, and so led to an annulment of the

party differences. Second, federalism worked as an institutional factor that, with the states,

produced an array of wilful political actors operating at different levels. Third, the role of citizens’

initiatives as actors is important, as they were able to organise themselves beyond their local sphere

in this political process and to influence said process significantly. Particularly with regard to the

effect of regionally different levels of consternation on the unity of the CDU/CSU faction at the

federal level, as well as the positioning of individual SPD parliamentarians, this suggests that there

are parallels with the CCS (carbon capture storage) law that was defeated in 2009 under similar

conditions (Heisterkamp 2010).

Whether there will exist any reliable findings on the environmental effects of fracking by 2021, if no

scientific test drillings are carried out until then, is an open question. Another open question is

whether, considering the possibly long-term low oil and gas prices, fracking can be carried out

profitably at all under stringent environmental requirements. Possibly in some years the necessity for

this procedure in terms of energy management will have to be evaluated anew.

21

Primary Sources

Arbeitsgruppe Fracking. 2013. Schreiben der CDU/CSU- und FDP-Fraktion im Deutschen Bundestag an die Bundesminister Philipp Rösler und Peter Altmaier, Berlin. docs.dpaq.de/2794-ag_fracking_-_forderungen.pdf (letzter Zugriff: 02. Mai.2016).

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