Devising a Legal Framework for Environmental Liability and Regulation for Mitigating Risks of Shale Gas Extraction

  • Macdonald Irowarisima

    Student thesis: Doctoral ThesisDoctor of Philosophy


    The safe extraction of shale gas resources has become a controversial issue in the energy sector and within energy law and policy circle. These issues have transcended to other areas of the society such as the environment, public health, and geopolitics. In fact, in environmental issue and regulation, it has become a norm in the minds of many that finding a model individual to do the right thing is a onerous task. One solution to this problem currently would be to realise the benefits energy resource extraction presents by devising the right regulatory strategies to improve the compliance level of those operating such risky activity to do the right thing. However, the strategic solutions to achieve the benefits are not that complex when compared with the strategic measures for achieving compliance to set regulatory standards for mitigating risks from energy extraction activity. This thesis argue for a complementary regulatory instrument mix (self-regulation and command & control regulatory strategies) to improve effective compliance for mitigating risks associated with energy extractive and consumption activities.One fundamental problem for this disparity is that the available regulatory strategies and approaches are fraught with diverse limitations that makes it unable to accommodate the dynamic of energy resource extraction. Also, industry and regulators of such activity’s dependence on regulatory approaches has been centred on command and control regulation that inhibits the incentive for the operator to go beyond the set standards. Hence, the urgency to devise an effective framework to balance costs that comes with the quest to relaise the benefits from resource extraction activities and the need for the preservation of the environment and health. Though achieving full compliance is far-fetched but optimal compliance is achievable within the context of collective participation amongst all industry players.One pragmatic means of achieving these conflicting interests within the global energy sector is through alternatives or a combination of regulatory instrument mixes (self-regulation and command and control regulation). This thesis intends that these alternatives should serve as complements to the command and control regulation and not to replace them. Such alternatives to regulation which this thesis argue and formulate that can help mitigate especially water contamination risk which has an increased frequency of occurrence is what it calls: ‘the risk/segment based strict liability rule.’ In addition, ‘self-regulation’ as a complement to command and control environmental regulation. While self-regulation helps to address the problem of information asymmetry that regulation grapple with, the risk based strict liability rule helps to address risks that have a highly probable or increased frequency level of occurrence. By risk based strict liability rule being proposed in this thesis, it means a risk from an activity can be subject to a strict liability cause of action without necessarily subjecting the entire activity to stricter environmental laws. This is based on the legal rationale that where particular risks’ has an increased frequency level of occurrence or the impacts could lead to transgenerational harm, it should be classified as abnormal. Therefore, should be subject to strict liability cause of action. Thus, the philosophy behind this thesis is to see how regulation can deal with particular risks under strict liability when they have an increased frequency to occur and not necessarily the entire activity.Thus, the significance of this thesis is that it resonates the ability of self-regulation and liability systems to direct the costs of the harms to those who create them. More so, these innovative policy options embedded in the properties of self-regulation and liability system will force operators to incur additional costs needed to forestall or control their actions that might result in externalities beyond the socially optimal level. Thus, environmental governance through self-regulatory and risk/segment liability rule systems as alternatives to command and control regulation will erode that complacency on the part of the creators of such possible negative impacts to act sustain-ably. These alternatives to command and control regulation are cogent in mitigating risks associated with shale gas as an energy source on two grounds.Based on the above problems, this thesis shall examine the critical question of whether stricter environmental liability and regulatory approaches is required to achieve a sustainable shale gas extraction. Also, what other features should be included in these environmental protectionist tools to achieve effectiveness in managing water contamination and dispersed risks associated with fracking activity. This thesis, argue for a stricter liability and regulatory approach as a complement to the limitations of command and control regulation with some added features to address dispersed harms associated with energy extraction activity especially the risk of water contamination.
    Date of Award2019
    Original languageEnglish
    SupervisorRaphael Heffron (Supervisor) & Volker Röben (Supervisor)


    • Energy Law
    • Policy
    • Mitigating Risks
    • Extraction Industry
    • Strict Liability
    • Environmental Compliance

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