Constitutional Court annuls Catalan law banning fracking

On Monday Spain's Constitutional Court (TC) annulled a Catalan law that prohibits the use of the technique of hydraulic fracturing, or "fracking", in the search for hydrocarbons, after ruling that it infringes on State powers.

Thus, the court ruled partially in favor of the appeal of unconstitutionality filed by the Spanish government against the Catalan law of fiscal, administrative, financial, and public sector measures, which includes this provision.

The annulled regulation proposed the prohibition of hydraulic fracturing "when it could have negative effects on geological, environmental, landscape, or socio-economic characteristics of the area, or in relation to other areas pertaining to the Generalitat".

The TC had already indicated in two earlier rulings that a ban on fracking in regional legislation infringes on State powers --specifically, in cases involving the regional governments of Cantabria and La Rioja.

In addition to Catalonia, La Rioja, and Cantabria, the regions of Navarre and Andalusia have legislated against this practice, which consists of fracturing rocky areas of the subsoil where hydrocarbon reserves are located by means of pressurized water mixed with sand and other elements.

In Spain there are close to fifty permits issued to carry out surveys in Asturias, Cantabria, Castilla y Leon, the Basque Country, Aragon, Catalonia, and Castilla-La Mancha. There are also further applications in the same areas, in addition to Valencia and Navarra.

In today´s ruling, the Spanish Constitutional Court insists that authorization of hydraulic fracturing, subject to required techniques and a prior survey of its environmental impact, belongs to the State, pursuant to its powers.

As such, the Court stresses that the "absolute and unconditional prohibition of the technique of hydraulic fracturing in an entire territory" of these regions has been declared against what State laws allow, "in a radical and irreparable" way.

Two dissenting votes against the ruling

There were two dissenting votes against this ruling: that of the Vice-president Adela Asúa, and of Judge Fernando Valdés, on one hand, and Judge Juan Antonio Xiol on the other. The first two considered that the TC should have weighed "the interests eventually affected by the conflict of powers over the same physical space, without imposing the subordination of one to the other".

Meanwhile, Xiol regretted that the TC, in rulings like this, is making "an interpretation of relations between the State and the autonomous regions that tends to be based on the principle of hierarchy and on reformulating criteria that were, until now, based scrupulously on the principle of areas of responsibility".