The end of coal mining is not the end of the story

13.08.2018

This interview with Prof. Dr. Joh.-Chr. Pielow has been published on the RUB-homepage

In 2018 the last remaining active coalmine in Germany will close. This does not mean that demands on German mining legislation will be reduced. On the contrary.

The term „mining legislation“ brings to mind coal mining. But mining legislation provides for orderly circumstances underground in other areas too – although there are still many unresolved issues. In this interview Prof. Dr. Christian Pielow, Managing Director of the Institute for Mining and Energy Law, talks about conflicts that can arise belowground, the popularity of German mining legislation and the legal challenges facing modern methods of energy generation and storage.

2018 08 Xx Bergrecht Pielow Dg
© Damian Gorczany

Professor Pielow, what use is German mining legislation after the last coalmine has closed? Can it also be applied to modern methods of energy generation such as geothermal energy production and fracking?
At the moment we are talking about the coal phaseout or to be more precise the end of coal-fired electricity generation and the effect this has on opencast mining. Nevertheless, mining legislation will maintain its relevance. Classically and basically it governs all types of mining activity underground including geothermal energy production, oil and gas transit pipelines as well as underwater cables. It regulates the mining of energetic raw materials such as coal or gas, as well as non-energy natural resources such as gravel, sand or quartz.

A special legislative Act has been adopted for fracking which has been latched onto water legislation after many discussions and which permits exploratory drilling for scientific purposes only, but with the permission of the federal states concerned. Furthermore, NRW has declared a moratorium i.e. a provisional stop for fracking activities because of the risk of contamination to ground water.

Underground space is not only attractive for energy generation but also for storing the energy source hydrogen.
I actually consider hydrogen to be the climate-friendly technology of tomorrow. We are presently conducting a EU-research project und are involved in a case-study on how to transport and store hydrogen in Germany. The ambitious idea is to split natural gas into its constituents in-situ in Norway where it originates. All toxic components will then be directly released back into the ground before transporting the hydrogen to the EU via the existing long-distance pipelines.

Which legal challenges do we face here?
To get hydrogen to the customer requires a certain infrastructure. This is where legal work starts when we ask ourselves if we can build a hydrogen network instead of a gas and electricity network? Or can we transport hydrogen in natural gas pipelines? Here we are talking about planning law, building law and basic energy law.

Hydrogen could be pumped into empty natural gas caverns and stored there. Do we need a permit to do this? Or can we do it simply because gas has always been stored there?
Hydrogen is not the only gas that could be stored underground. There is also the idea of storing carbon dioxide in the same way to prevent it leaking into the atmosphere thus accelerating the climate change.

In Germany, CO2 storage is just as demonised as fracking, it is practically forbidden. There is a special carbon dioxide storage Act similar to the Federal Mining Act. As in the case of fracking it permits underground storage of CO2 for testing and scientific purposes only. Federal states, where gas could be stored, are free to decide whether they want to store it or not. The geological formations necessary for carbon capture and storage can only be found on the coast, more specifically in Schleswig-Holstein, Mecklenburg-Vorpommern und Niedersachsen. And these states all firmly resist the idea of carbon storage. So ultimately you can forget about this technology in Germany for the moment.

What concerns do the federal states have?
Lack of social acceptance. People are simply afraid that CO2 will leak into the atmosphere. Because it is heavier than air, it could accumulate in low lying areas and suffocate you. People also fear that drinking water could be contaminated or it could trigger earthquakes.

Apart from carbon storage there are a variety of interests in underground exploitation. Do existing laws reflect this new reality where conflicts can arise?
Yes, conflicts can arise underground just as much as over ground. For example, if an area is deemed suitable for storage of various materials or if an area is to be used simultaneously for geothermal energy generation and resource mining. Such underground conflicts have not been suitably resolved to the present day. Some experts are demanding a subsurface spatial planning law. This would determine which utilization could be implemented where and with which priority.

In the meantime we have to manage with the existing laws. Since when does the German mining law exist in its present form?
The Federal Mining Act exists since 1980. A lot of it stems from medieval common law and later from state mining laws which have evolved over time. The central and indeed very ideololgical question that we have to ask is who „owns“ the resources?

There are various answers to this question around the world. In the USA, whoever discovers the resource is the owner – this led to the gold rush in the Wild West. In France, resources belong to the state but mining rights can be granted to private persons. In Germany, resources of economic importance have been „bergfrei“ since the 19th century in so far as that they belong to no-one, not even the state. In principle, anyone can apply for the right to mine them, he/she must simply apply for a permit from the mining authority and submit a mining plan. Unlike France we have a legal right to a mining permit. Landowners are obliged to allow mining.

What do we actually purchase when we buy a site, how many metres in depth do we own? And would we then be owners of all natural resources to unlimited depth?
Basically – and theoretically – we own the site down as far as the centre of the earth. This also includes the resources such as sand, gravel or turf. But as already mentioned, it does not include specific legally defined resources such as natural gas, coal, or even gold and silver. According to German mining legislation there is a specific social interest in mining these resources, therefore they do not belong to the landowner.

How does German mining law differ to that in other countries?
Generally speaking, other countries are very interested in German legislation. Some countries have even copied German legislation word for word, much of our Civil Code of Law is also valid in Japan. The tried-and-tested principles of our Constitution are internationally renowned. Even our mining legislation is exemplary in many countries, it is esteemed for its pragmatic solutions as seen for example in Afghanistan and in the resource-rich countries of Latin-America.

Does the law provide for liability claims?
Yes, in the so-called mining indemnity law (German law on damages). This has a peculiarity – the principle of reversing the burden of proof. Here in the Ruhr area, if a house owner discovers a crack in the wall, he/she is not obliged to prove that the crack arose from mining damage. The mining company is obliged to prove that this is not the case, otherwise the owner of the house has to be compensated. There are often conflicts regarding mining damage liability, also in the case of ground collapse; in order to facilitate legal protection NRW has ist own arbitration bodies.

The Institute for Mining and Energy Law also acts in an advisory capacity. What issues are you often confronted with?
At present we are very involved with legal issues concerning the energy transition. Energy law is intertwined with many areas of law including international law, EU law and municipal law. For example: I never dreamt that I would ever have anything to do with calibration law. But it is extremely important in the field of E-mobility. When you charge your E-car, the charging station must operate correctly and this is a question of callibration. Most recently in the energy sector the focus has been on digitization and consequently IT law and data protection law. – as well as the protection of critical infrastructure such as energy networks from acts of sabotage and hacker attacks.

By the way, it is not the first time that we have concerned ourselves with the energy transition, we have already undergone a major transition, namely the liberalization of the energy markets, with the result that nowadays you are free to choose your own electricity and gas supplier. This was an enormous challenge from a legal point of view and many open questions still remain, for example with regard to how network access charges for competitors are determined or the issue of energy trade across the internal borders of the EU.

How do you actually get a consulting role as an institute or researcher?
That happens when you are an expert in a particular field. Then you automatically receive enquiries. Bochum is one of only very few institutions for mining law in Germany.