No Fracking Way!

CEO and FOEE lodge complaint with Ombudsman on industry-dominated advisory group

Following the publication of the Carte Blance for Fracking report earlier this year, CEO and Friends of the Earth Europe have submitted a complaint to the European Ombudsman about the industry dominated advisory group convened by the Commission to get fracking introduced through the back door.

CEO and Friends of the Earth Europe had already written to Commission Secretary General, Catherine Day, complaining about the group and asking for it to be suspended until it is fit for purpose. However, following an empty response (see below), the decision was taken to go all the way to the Ombudsman with the case.

What was submitted can be seen below, as well as all the supporting documents, and the next step is to wait for a response on whether the case will be taken up or not.

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Information Submitted to Ombudsman:

Against which European Union (EU) institution or body do you wish to complain?

European Commission

What is the decision or matter about which you complain? When did you become aware of it? Add annexes if necessary.

The complaint is submitted on behalf of Friends of the Earth Europe (FoEE) and Corporate Europe Observatory (CEO) regarding potential maladministration on behalf of the European Commission, specifically concerning the grave imbalance towards industry of the newly created “European Science and Technology Network on Unconventional Hydrocarbon Extraction” (or Network).

The Network is managed by the Joint Research Center (JRC), as part of a steering committee of numerous other DGs (DG Environment; DG Energy; DG Clima; DG Research; DG Internal Market, Industry, Entrepreneurship and SMEs; JRC). It was originally announced in June 2014, with the core objective to “bring together all relevant stakeholders to foster a common understanding, share information on science and technology developments and review R&D results and needs.” In the first meeting in July 2014, it was stated that the mandate was unambiguously aimed at “ensuring a fair and balanced exchange of ideas” [See the official mandate of the Network in the attachment]. Considering the potential grave impacts of new unconventional hydrocarbon extraction technologies on citizens and the environment, a fair and balanced exchange would require a substantial and meaningful participation of civil society and citizens.

FoEE was initially a member of this Network. However, before accepting the invitation to participate in this initiative, FoEE engaged in a discussion with the JRC, Mr Marcelo Masera in particular, to obtain clarifications about the functioning of this platform, and the balance of its members. The latter was a particular concern given the obvious advantages the oil and gas industry have in terms of resources and staff compared to civil society groups with an interest in the matter. FoEE received repeated verbal guarantees that the debate would be balanced. Based on these guarantees, it took the decision to contribute to this network, engage in the discussions in good faith and register according to the required process.

However, the first meeting of the two Working Groups that took place on February 23 and 24 raised fundamental questions about the promises initially made regarding the balanced approach.

FoEE presented its concerns in an original letter of complaint sent to the Joint Research Centre on February 27, but because the wholly unsatisfactory response sent by the JRC, it was no longer tenable to remain in the group which FoEE left as of April 15.

In part 4 of this complaint, we present the details of our concerns as well as record of the correspondence with the Joint Research Centre as well as with the Secretariat General (which can already be found in the attachments here). As detailed in our briefing "Carte blanche for fracking" that we published in April 2015 (see in the attachments), we are of opinion that the responses given to us are not satisfactory and that the European Commission did not ensure balanced structure of the group. Therefore, we believe it doesn’t comply with the network’s own rules and procedures and recent recommendations of the Ombudsman on expert groups and likeminded groups.

What do you consider that the EU institution or body has done wrong?

All the details of this case can be found in a briefing published in April 2015 by FoEE and CEO, it can be found in the attached documents and here: http://corporateeurope.org/sites/default/files/attachments/carte_blanche_for_fracking_final.pdf

Imbalance

At the first meeting of the Network, organised in February 23 and 24, and attended by FoEE, almost 80% of the participants appeared to directly represent the industry, think tanks and academics working with the industry on research projects, or authorities from countries officially supporting shale gas development. Only six participants (less than 10%) represented civil society. Such a set-up in no way reflects the Network’s Rules of Procedure of a “fair and balanced exchange of ideas”.

Analysis following the meeting of the Network's 74 members officially listed on the JRC Network’s website shows that, excluding the 14 who work for the European Commission:

  • Fewer than 10% are from civil society;
  • More than 70% either represent or have financial links to the fracking industry;
  • Two-thirds of academics and research organisations involved have links to the fracking industry;
  • All four[1] working group chairs and vice-chairs are fracking proponents: represent a fracking company (Cuadrilla), administrations of two pro-fracking governments (UK and Poland) and a consultancy that works for unconventional fuel producers (IFPEN);
  • Some of the chairs has even lobbied against stronger safety rules.

Unfortunately the responses given by the JRC (See attached letter on March 17) and then the Secretariat General (See attached letter on June 5) to the letters of complaint (See attached letters on February 27, May 11 and May 18) have not addressed the issue of imbalance, and instead emphasised that the Network “was open to all interested parties”, that it “is always open, and we intend to consider the enrolment of any further person that will express their willingness to get involved. The Commission is committed to not limiting the participation if the acceptance conditions are met.” The blanket openness ignores the obvious advantages the oil and gas industry have in terms of resources and staff compared to civil society groups with an interest in the matter and/or impacted by shale gas development, and ignores the impact this will have on composition of the group and the ability to have a “fair and balanced exchange of ideas” given who is present. This point was stressed repeatedly by FoEE both in written correspondence and during the first meeting. The letter from the JRC did address the lack of civil society participation, securing financial support from DG RTD for 40-50 trips to attend meetings, but given there will be 12 meetings over three years, this means only 3-4 participants. Moreover, since this amount of possible trips was suggested in the JRC communication, all the requests from members of grassroots organisations to benefit from these funds have systematically been refused by different departments of the European Commission, arguing that “it should not be assumed that all requests for such funding can automatically be met.”[2]

Moreover, the appointment of four hand-picked chairs, each with pro-fracking agendas, is the strongest evidence that the European Commission undermines its intended goal of a fair and balanced discussion (as detailed in our Carte Blanche for fracking briefing, see attachments). The European Commission does not find this problematic, and instead claims it will “closely follow the progress of the Working Groups”, by which time, in the opinion of the complainants, it will be too late. The concerns raised in the letters to the JRC and Secretariat General also relate to the role of the chairs, which the mandate declares to be to “summarize, harmonize and approve” the working groups’ output [3]. The fact that the chairs have such a crucial role makes the biased nature of the chairs' identities even more problematic, yet the JRC's response (the Secretariat General chose to ignore this point in their answer) was to claim the reference is “not correct”, instead indicating that only the documents published in the website are the correct ones. In fact, these were the very same ones being referred to.

Conflicts of Interest

The Commission is undermining its own integrity by appointing industry players with clear commercial interests in the expansion of fracking to a position of evaluating and making recommendations on the safety and 'attractiveness' of certain technologies for Europe. Many of those involved in the assessment not only have a commercial stake in the outcome of the decision, but have been shown to have aggressively lobbied against tougher safety measures and sometimes have a track record of causing environmental and human rights abuses around the world [4], therefore questioning their ability to act in the public interest and therefore the ability of the group to objectively reach a “fair and balanced” conclusion. This is specifically relevant for the chair of the working group coming from a shale gas company.

Network as Expert Group

The final point of contention is the role of the Network. On all appearances, it is an Expert Group. It is a multi-stakeholder group that provides expertise to the European Commission on hydraulic fracturing technologies and experiences, and in Working Group II, “Emerging Technologies for Well Stimulation”, the official task is not just to analyse current technologies but to provide a “prioritization of the most attractive” ones [5], i.e. providing clear advice. Additionally, the working group chair Grzegorz Pieńkowski, has repeatedly and publicly called it “an advisory body”, stating its role is to “advise the European Commission in the field of non-conventional hydrocarbons”, and adds that “the European Commission will base its future political decisions and regulations on the work of the advisory group”.[6] But the European Commission has repeatedly responded by claiming the Network “does not have an advisory role”, “does not constitute a Commission expert group” and “only gathers, analyses and reviews information”. However, if this Network is not meant to “provide advice to the Commission on policy decisions regarding unconventional hydrocarbon extraction”, as the Secretariat General said, it is extremely unclear what will therefore be the status and objectives of the reports which will be produced during the existence of this group. 

While civil society groups concerned by the role and the imbalance of the Network argue that it should conform to Expert Group rules, particularly the recent recommendations made by the Ombudsman [7], the Commission sees “no need to change the rules and structure of the working groups or the chairs”.

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[1] The research originally stated there were five, rather than four, chairs. It has since been corrected upon receiving new information from the Commission about the chairs.

[2] Extract from an email exchange with the JRC – can be provided under request

[3] These quotes can be found in the mandates of the Working Group 1: https://cloud.foeeurope.org/index.php/s/SU6ZTyfS8zYTBeL and Working Group 2: https://cloud.foeeurope.org/index.php/s/rlDyOSlI9tvQkH4 (the documents can also be found in the attachments)

[4] As the December 2014 FoEE Report "Fracking Frenzy" showed with numerous illustrations across the World (http://www.foeeurope.org/fracking-frenzy-report-011214)

[5] See mandate of Working Group 2: https://cloud.foeeurope.org/index.php/s/rlDyOSlI9tvQkH4 (also in attachments)

[6] See interview here (in Polish): http://gazlupkowy.pl/pienkowski-komisja-europejska-zmienia-zdanie-o-gazie-lupkowym/

[7] See statement here: http://www.ombudsman.europa.eu/en/cases/correspondence.faces/en/58861/html.bookmark

What, in your view, should the institution or body do to put things right?

We believe that this Network appears to be part of a worrying trend in which groups ordinarily labelled as Expert Groups are able to side-step the rules by avoiding the name. The Network should therefore both be in the Expert Groups register, as well as adhere to rules on balance, conflict of interest and transparency.

If the administrators of the Network do not conform to these rules, we think this Network should be scrapped. 

Have you already contacted the EU institution or body concerned in order to obtain redress?

Yes (please specify)

As mentioned in Parts 3 and 4, FoEE and CEO have already exchanged letters, emails and phone calls on this issue with representatives of the Joint Research Center and DG Environment.

Considering their decision not to change the way the Network is currently being run, we refered to the Secretariat General with similar requests but our complaint was poorly considered and the answer we received unsatisfactory.

All the official letter exchanges can be found in the attachments of Part 3 of this complaint.

After addressing our legitimate and fact-based concerns to the highest level of the European Commission, we are therefore today looking at other solutions and are hoping our requests will be considered by the European Ombudsman. We therefore request that you conduct investigation of potential maladministration in this case. 

If the complaint concerns work relationships with the EU institutions and bodies: have you used all the possibilities for internal administrative requests and complaints provided for in the Staff Regulations? If so, have the time limits for replies by the institutions already expired?

Yes (please specify)

As explained in Part 6, we have used all possible ways to explain and detail our concerns to the JRC, but also to other DGs involved in the management of the Network. The official letters can be found in the attachments of Part 3 of this complaint. 

Considering the absence of action from the JRC to change what we believe is a clear case of maladministration, we forwarded our concerns to the highest level of the European Commission, namely the Secretariat General, which only very parly addressed the various points we raised and which also refused to adequately consider our concerns and requests. The exchange of letters can also be found in the attachments of Part 3.

In these circumstances, we believe we have given all the time and the opportunities for the different EC departments contacted to respond to our requests. However, none of them has been satisfactory and all our concerns are still true today. We do not see today alternative ways to make our case considered through internal administrative procedures. This is the reason why we are now filing this complaint to the European Ombudsman.

Has the object of your complaint already been settled by a court or is it pending before a court?

No

Please select one of the following two options after having read the information in the box below:

Please treat my complaint publicly

Do you agree that your complaint may be passed on to another institution or body (European or national), if the European Ombudsman decides that he is not entitled to deal with it?

Yes