This article was updated with new information, available at the end of the original text, after the non-decision of the APA about the Aljubarrota dig site.
The Australis Oil & Gas company arrived in Portugal back in 2015 and currently holds two contracts – “Batalha” and “Pombal” – that foresee an 8-year exploration of an area of about 2,500 km² of immersed area (the so-called onshore) of the continent’s territory, covering the districts of Coimbra, Leiria and Santarém.
But this isn’t just a story about prospection and extraction of oil and gas. It is also about public-private promiscuity, the battle between the interests wishing to exploit energy resources and climate change, and also about the ways in which the State contributes to the destruction of the environment by allowing extraction while using the law as a shield in order to appear cautious and in possession of the popular mandate; when in fact the whole process is a farce that begins and ends in the corridors of the State, law firms and extractive industry corporations. Understanding the whole process requires some patience and attention. Consider getting a coffee before you start.
How it works
To ensure that it meets all the requirements to move forward with exploration, Australis Oil & Gas wants to test the area and set up a prospection and hydrocarbon research project in the “Batalha” concession area through methods which it says are conventional. To do so, it had to apply for a license through an electronic platform, under the Single Environmental Licensing Regime (RLUA), which is subject to a prior assessment under the legal framework of environmental impact assessment (RJAIA).
The RJAIA is regulated by law decree 151-B / 2013 and it prescribes a preliminary assessment phase that may or may not be followed by an Environmental Impact Assessment (AIA) procedure. This AIA procedure includes an environmental impact study (EIA), where an analysis is carried out to issue an environmental impact statement (DIA); which will determine whether or not the project should move forward or if it is able to progress but only under certain conditions.
This RJAIA is divided by industry and, within each industry, by normal or sensitive areas (appendix II of the cited decree). In the extractive and hydrocarbon industries, extraction for exploration and/or prospecting is distinctive, and, regarding the latter, a separation is made between projects that use conventional methods and those that use non-conventional methods. In the case of extraction, all hydrocarbon extraction is to be subject to an AIA. In the case of research and/or prospecting surveys for hydrocarbons, only those that resort to non-conventional methods – such as hydraulic fracturing – are to be subject to an AIA. All others require a “case-by-case analysis”, which will decide whether or not the AIA procedure is implemented. The drilling research and/or prospecting surveys of Aljubarrota or Aljezur are such a case, since they propose the apparent use of conventional methods.
The lawmaker, a usually unknown figure who drafts the laws, decided to create all these distinctions throughout the various law decrees and laws that were published during past governments who updated the original 2013 decree. The reasons why it decided to do so are not clear but it is highly likely they are of benefit to the industry. One also wonders why, during a period of social contestation, a law (37/2017, 2nd of June) emerged that made the AIA a mandatory process in the cases of hydrocarbon research, prospection and extraction; something which was already foreseen in previous decrees and laws but gained new form under this law.
Law nº37/2007 also created a new specific phase of prior assessment for hydrocarbon research and prospection projects (article 3º, number 9) which regulates whether these operations should or shouldn’t be subject to an AIA, according to a “case-by-case analysis”. A period of public consultation is also required during this prior assessment phase, a legal instrument which is purely theatrical, non-binding and employed in order to give the appearance of public participation: a pro-forma for the State to be able to say that yes, there was public participation. Now stop complaining.
However, the public consultation regime is not subject to any crucial condition, such as a minimum number of participants which, if not verified, would determine the ineffectiveness of the public consultation. It may happen that a public consultation has zero or ten participants in a country of about 10 million people, the effect is the same: the public consultation took place; if Portuguese citizens didn’t take advantage of this great opportunity, it’s their own fault.
Moreover, the only documents available for public consultation at this preliminary examination stage are those produced by the company itself. Made worse by the fact that, even if they have to follow legal requirements, the State does nothing to verify the contents; and it’s in these documents that we are told whether the methods to be used are conventional or not; which, in turn, determines the use of the AIA procedure or the “case-by-case analysis”, which leads more easily to a non-subjection to AIA. If the AIA authority, which is responsible for determining AIA compliance under the RJAIA, decides at this stage of prior assessment for its non-subjection to AIA, the prospection is free to follow its course and the actual environmental impacts will remain undetermined.
It was during this prior assessment phase that the research and prospection drill hole of Aljubarrota was subject to public consultation. It encompassed a period of 30 days, as demanded by law (article 3/ nº9) which ended on May 11 of this year. After the deadline, it was up to the so-called AIA authority, in such cases the Portuguese Environment Agency (APA), to decide whether or not there would be an AIA. According to the law, it had 20 days to do so, “given that the absence of pronunciation determines that it won’t be subject to an AIA” (article 3 / nº4).
Therefore, the environmental agency is not obliged to make a public statement, and simply by not doing so it is decided that the prospection project can proceed without further study or analysis of the environmental impact (AIA). This “positive silence” is named tacit approval in legal language and it is in fact one of the points of conflict between Portuguese law and European directive nº 2014/52/UE (transposed by decree-law 152-B/2017 of December 11, which amended the aforementioned law and decree) – also a bit of a pro-capital farce – which prohibits the use of such a legal figure, at least in environmental matters.
Everything points to the fact that the silence favored the realization of the prospecting hole in Aljubarrota since, to date, no communication was made by the environmental agency about it, despite the public participation. This means that the environmental agency non-pronunciation is seen as green light for the prospection to move forward and only Australis has been informed about the (non) decision; not in a public press release, but through its private account at the Electronic Single Counter, an online public platform. The environmental agency is not obliged to do anything else and the the population has no idea what is happening. Neither have the locals next to the zone affected by the prospecting drill hole been informed, nor is it known what natural resources Australis will be using or if that use will affect local sustainability; such information was also not clarified by the document that served as basis for the public consultation.
According to the law, everything is business and everything is exploitable. If there are natural resources, they are to be used, either due to human needs or, in this case, the needs of capital. Perhaps extraction should be prohibited in all its forms and for any hydrocarbons or ore, in order to ban the extraction business once and for all, thus ceasing the need for the collaborator State to emit any more extraction licenses. This same State ends up serving as a “figurehead” in justifying environmental problems, such as in the case of the Celtejo industrial discharges on the Tagus River, arguing that such incidents result from a lack of proper inspection instead of being the result of the way licenses are attributed, which allow corporations to act the way they do. Corporations which are defended because they represent an investment opportunity. But investment for whom and for what end?
APA has issued an opinion dated June 5, past the 20 day period during which it was supposed to pronounce itself. The public consultation report, essential for issuing an opinion, was only made public yesterday, June 3.
Because there was no notification through the participa.pt platform (where the process resides) as it was supposed to, and due to the absence of information, Catarina Gomes of the Central Zone Citizen Movement Against Fracking and the Red Lines campaign has stated during yesterday’s afternoon that she repeatedly tried to contact APA to get more information: “I’ve been calling APA during the last two days and talked with three departments, none of which was able to give any information regarding the APA opinion or the result of the public consultation.” Catarina spoke with the climate change department and the environmental impacts department, none of which even remembered the public consultation which ended on May 11. After much insistence, she ended up being redirected to the communication department – we question the meaning of this redirection – which promised her a phone call with the explanation and promised to publish the information online during the afternoon. There was no phone call, but the information was made public sometime during the late afternoon. As such, the public’s participation right materializes as the mere external observation of the process and waiting for a confused (non) decision, made according to an even more confused law which borders the schizophrenic.
It’s important to underline that the APA opinion concludes with a “non decision”, in which it says it isn’t fit to decide. In said opinion, Australis is given recommendations to complete the document which was subject to public consultation. It is also said that the ENMC has required new documents, such as a detailed drilling and mud program, a report on serious risks in accordance with article 35º of the Law-Decree n.º13/2016 of March 9, and a hygiene, security and environment plan for the company under concession and its subcontractors.
One of the possible interpretations (because the law isn’t clear and it all depends on who has the power to interpret it and assume an interpretation as correct) for this “non decision” – even if it is late – and since the APA and ENMC allege a lack of information, is the suspension of the process until the required information is obtained. But since the opinion was emitted late and didn’t realize a concrete decision, it might also ease the way for an AIA exemption; since the only thing required is for the corporation to supply more information. These are juridical discussions which alienate us all from the process and confirm the subjectivity of the law.
It is admitted that the project isn’t sufficiently detailed and that there is a lack of information about “significant environmental impacts” (something which is supposedly only verified during the AIA procedure); which by itself, and if the environment was truly important before the law, would be enough to determine an opinion for the project’s subjection to an AIA.
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