A friend taught me that any exam should be approached in a relaxed manner, even with a touch of constructive humor, so as not to become emotionally overwhelmed and therefore encounter memory lockouts, specific to such important steps in life and career. I am recalling a most memorable moment in my professional career, when I felt no need for any private meditation ritual to relieve myself from the emotional burden of an exam, that is to say the exam for membership in the Bucharest Bar Association.

Several years ago, when efforts started to be made for reshaping the (rigid and dogmatic) education system in Romania, the Bucharest Bar Association considered as appropriate to include in the examination scheme questions on some practical cases. At that examination, the Bar Association has managed to do even more, somehow undermining the solemnity of the examination and stimulating candidates’ health through laughter therapy. In a few words, the case that we were supposed to consider concerned civil liability that had to be undertaken if the pigs on a farm should be infested by a supplier. That moment is still well imprinted in my mind, not so much for the unusual challenges of the ability to summarize all-round education, history, philosophy, analytic and synthetic logic in matters of law, but also for its hilarious and subversive nature to the intellectual sophistication that I was then ascribing to the legal profession.

Furthermore, another event occurred in addition to the Bar examination sequence, that somehow heralded the drama of the sharp differences between the Western legal education systems and our legal education system (felt now as well, however, under new forms). More than a decade ago, I was invited as an expert witness in Romanian law in a U.S. Federal Court. At that time, I was representing a Western company in a dispute for more than 20 years with the Romanian State for a considerable amount. After endless negotiations, the company managed to conclude a settlement with the Romanian State, through the Ministry of Finance, which the Romanian State subsequently refused to perform. During the three days of debates in the Federal Court of Appeal, I was invited to present some opinions on matters of Romanian law. Debates focused at a certain time on the concept of "State" in the European continental political and philosophical perception. I was trying to explain to the federal judge (considering the conceptual differences between the US and the European systems) in an accessible manner, which was the meaning of the notion of "State" in light of the institutional and legal framework in Romania.

Finally, I was helped even by the judge who, clearly in dismay, made reference to G.W.F. Hegel’s Philosophy of Right in his effort to understand my explanations built up on a kind of determinism, perhaps inspired by the logic of the case approached during my Bar examination. I, therefore, blessed the curriculum from the communist era (the examination for admission to the Law School included economics and philosophy, obviously, saturated by Marxism-Leninism, but still preserving the introductory chapters on the history of philosophy, part of which I was deeply passionate) that allowed me to carry an exciting 30-minute conversation with the federal judge on matters of Hegelian philosophy, to the dismay of the courtroom’s audience. Three months after, the federal judge issued a 40-page court ruling (in favor of my client), with footnotes and references to law, political science and philosophy studies, including the classic German philosopher so close to the heart of the federal judge. Leaving Hegel in the courtroom on the US continent, I returned home to the “farm”, preparing my accounting records for an unexpected inquiry ordered by the Romanian tax authority. It's been over a decade since. My memory of such events was, however, refreshed by a certain public debate and case law in Romania in an area of my concern, specifically the energy sector.

For some time, the Romanian mass and virtual media started being animated in scrutinizing the “complex” shale gas subject matter. Some public commentators, mostly commenting on no matter what, wherever and at whatever time, have issued concepts according to which “shale” gas isn’t clearly regulated by law and, therefore, any concession agreement for shale gas exploration and production would be invalid. Such concept has been recently appropriated by a Court in Vaslui. We assume that the document uploaded on the internet is true, and I am referring now to Civil Order No. 2143/CA, rendered in public session on November 11th, 2013, in File No. 3029/89/2013, regarding the request for cancellation filed by Vaslui County Prefecture against the decision of Suletea Commune Local Council, providing for an interdiction on shale gas exploration and production in the area of that commune. Almost instantly, public commentators started talking about a "historical precedent" (although Romanian law does not recognize "precedents" as a source of law).

To sum up, the Court rejected the request for cancellation filed by Vaslui County Prefecture, providing in a 10-page decision (of which only five were dedicated to considerations and to the operative part of the ruling) that: (i) the acts of Suletea Local Council are "the outcome of efforts supported by theoretical documentation on the de facto situation " (page 7 , paragraph 4); (ii) the method of hydraulic fracturing is, according to a "first comprehensive study", posing a risk to environment and health (page 5, paragraph 3); and most significantly, that (iii) "shale gas" is not regulated by law (i.e. Petroleum Law No. 238/2004, which defines only "petroleum" and "natural gas") and, therefore, such cannot be part of the State’s public domain (page 8); and that (iv) "the general definition of unconventional gas refers to those natural gas reservoirs (the highlight on the text is mine) that cannot be identified, characterized and commercially developed through joint exploration and production technologies, and which are stored in low permeability and porosity reservoirs that are flow-free through the widespread use of hydraulic fracturing and digging of horizontal or multilateral wells" (page 8, paragraph 10).

Based on such considerations, in a few words, the Court held that, since "shale gas" is not regulated by law, the State cannot hold competence to manage it, the only authority holding such competence being the local councils. I allow myself to be critical on this judgment strictly from a legal perspective and not from a “political” one as unfortunately common in Romania today. But first of all, a few questions: in substantiating the court ruling, it is not clear from the grounds of such decision if the Court had actually received or reviewed any evidence of “a sustained effort (of Suletea Local Council - our note) of theoretical documentation on the de facto situation,” in order to issue the Local Council’s decision. According to the court ruling, in order to issue the relevant decision, the Suletea Local Council grounded it on the “negative signs (?!) regarding the threat posed by shale gas production with hydraulic fracturing,” and “Chevron’s irrational practice of occupation and development,” (page 5, paragraph 2). Typically, such acts of the Local Council should have been issued based on the legal requirements, more specifically, those provided by Article 44, paragraph 1, of the Local Public Administration Law and by Article 30 of Law 24/2000 on legislative technical rules for drafting of regulatory acts (assessment of impact of the regulatory act by expert reports with reference to the grounds for issuing the regulatory act, the social and economic impact, the financial impact, the impact on the legal system, consultations undertaken to develop the draft regulatory act, organizations and experts consulted, the substance of received recommendations, public information activities on the development and implementation of the draft regulatory act, the implementation measures).

What were those "negative signs"? Is it legitimate for a so-called “irrational practice” of a legal holder of a petroleum concession license to justify such a decision taken by the Local Council? Were the legal requirements met for the Local Council to draft and adopt such decision? In this case, it appears that such elements are no longer relevant to anyone, in compliance with the customary shallow political and administrative decisions taken in Romania. A second confusion is generated by the origin of the "entire study" on hydraulic fracturing, and the source of the "general definition" of shale gas, claimed by the Court.

As concerns the actual criticism of the Court ruling, it will be extremely short. There is nothing Hegelian about it. But before drawing the proper conclusions, it is necessary that certain terms are clarified in terms of etymology, grammar and semantics. I will refer to the notion of "combustible mineral substance," "hydrocarbon", "crust" and "natural gas", i.e., those notions contained in the definition of "petroleum" in the Petroleum Law (Article 2). Petroleum Law No. 238/2004, defines petroleum under Article 2 (a definition also provided in the Court ruling) as “the combustible mineral substances consisting of mixtures of naturally accumulated hydrocarbons in the Earth’s crust and which, at surface conditions, appear in a gaseous state, in the form of natural gas, or in a liquid state, in the form of crude oil and condensate.” But for this reason, I am forced to waive the definition of shale gas with "author unknown" (such as the definition provided in the Court ruling) and to resort to familiar dictionaries. Let's start with "combustible mineral substance." The "substance" is defined in the Explanatory Dictionary of the Romanian Language (DEX) as "a body (solid, liquid, gaseous) uniformly consisting of atoms and molecules (composed of the same elements) and having a certain shape, color, smell, taste, etc." The same dictionary defines "mineral" as "a solid body with a specific chemical composition, which is found in nature in the composition of rocks and minerals in a crystalline or amorphous form." "Fuel" is defined as "material, usually organic, burning, developing heat and used as a source of energy in industry and home economics." In a few words and explained, under the Petroleum Law, "combustible mineral substance" means gas or liquid that is found in rocks and that can yield energy.

However, perhaps someone is still confused by the notion of "gas". "Gas" derives from the Greek "khaos" (eng: chaos), as defined in DEX as "the generic name given to fluid bodies with low density, colorless, easily deformable and expandable, which, due to weak molecular cohesion, have no individual stable shape and tend to occupy the entire available volume. The same dictionary defines "natural gas" as “combustible gas coming out of the earth.” Earth, obviously, means the Earth's crust.

Britannica Encyclopedia defines “shale gas” as “natural gas obtained from sheet-like formations of shale, frequently at depths exceeding 1,500 meters (5,000 feet). Shale is defined as fine-grained sedimentary rocks consisting of silt- and clay-sized particles that were laid down hundreds of millions of years ago as organic-rich mud at the bottom of ancient seas and tidal flats. Over time the mud layers were buried by further sedimentation, and the resulting heat and pressure transformed the mud into shale and the organic matter into natural gas.” “Shale” is defined by the same dictionary as any “metamorphic or sedimentary rock with a laminated structure exhibiting a tendency to split into thin layers that are usually parallel to the bedding-plane surface,” and “bituminous shale” (that formation in which natural gas can be found) is defined as “a useful mineral consisting of organic and mineral substances.” All such definitions lead to the obvious conclusion that "shale gas" is "natural gas". Such gas is "shale" since it is to be found "in shale." And "shale" is part of the "Earth’s crust." So "shale gas" is part of the "natural gas" category. However, the term "gas" is specifically mentioned in the definition of "petroleum" in Petroleum Law (Article 2) and has been even assigned a particular definition therein. It is a fact that most people consider "petroleum" and "crude oil" as synonyms (probably from the definition of the Latin petra, "rock", and oleum, "oil", oil being usually understood as something highly fluid), and gas as something completely separate. However, it is obvious that Petroleum Law includes both natural gas and crude oil in the category of petroleum.

Applying the principle of law ubi lex non distinguit, nec nos distinguere debemus (where the law does not distinguish we do not need to distinguish), it is clear that the Petroleum Law regulates any "petroleum" (read both natural gas and crude oil) found in any geological formation of the Earth's crust. Of course, the sequence of definitions may go on further to the original word, but I'll stop here.

What actually surprised me and prompted me to write the above considerations is the very definition used by that Court (the source of such definition being unknown) which reads that "unconventional gas refers to those reservoirs of natural gas (...)" (in the Court’s awkward perception, being equivalent to shale gas, although shale gas is just one category of unconventional gas). Therefore, the Court acknowledges the quality of "natural gas" of "shale gas," but despite quoting in the ruling the article that defines/regulates "natural gas" as such, draws a conclusion running against the logic of interpreting "shale gas" as not being regulated by law. The conclusion can only be that shale gas is part of the natural gas family which, under Petroleum Law, is part of the abstract category of "petroleum". And Petroleum Law states under Article 1, paragraph 1 that "the petroleum resources located in the subsoil of this country and on the Romanian continental shelf of the Black Sea, as such is delimited in accordance with the principles of international law and the provisions of the international treaties to which Romania is a party, make the exclusive object of public property and belong to the Romanian State.” Therefore, the Petroleum Law states quite simply that shale gas is natural gas which is petroleum and belongs to the Romanian State, not to any local public authorities.

And I rest my case as concerns any legal or critical considerations on that Court ruling (not of the panel of judges!). Noteworthy is not only this particular case law (other than for oilmen and environmental activists), but the obvious tendency of the Romanian society to adopt logic mechanisms in a completely particular, superficial and inadequate abstract approach. This tendency is reflected in the growing demand for more regulation ("defining the definition" or "if not provided under law, it does not exist"), a non-critical assimilation of institutions, regulations, concepts and practices in the absence of a substantiated factual and practical perspective (in a few words and as per the improper terminology launched by the Romanian politics and mass media: "copy & paste"), the ever more lower adherence to manipulation, all of that to the comfort of those called to guide the political, legal/judicial, administrative and spiritual destinies in Romania. Yet, how to explain the almost stupid solipsism that tends to invade our spirit and, ultimately, the Romanian newspapers? Stupid since we do not necessarily face a metaphysical skepticism about the existence of the material world, but the propensity to declare that the limits of our knowledge, and therefore of our decisions, coincide with the ends of the world, meaning that if something is not known/perceived, it does not exist. I think one explanation resides in what the ancient Thucydides considered as factors motivating human nature, such as fear, selfishness/greed and honor (and I would insert here "laziness", as historian Ian Morris added) and, in particular, the state of fear/mistrust tending to dominate the Romanian society.

The relative nature of the rule of law in Romania (by poor laws, corruption, politicization of the administration and institutional lack of professionalism), combined with the ineffectiveness of the educational system and expert training (for instance, it is beyond my understanding why, after 20 years, we still have the same court sections of material and functional competence, making the same judge settling a dispute involving a civil penalty applied for failure to comply with the sanitary regulations, to rule over a complex litigation in terms of competition or petroleum concessions; once again, it is difficult for me to understand why we further encourage an organizational framework that perpetuates court overloading, and as a result, physical and spiritual exhaustion of judges, most of whom are persons of a great courage and particular devotion), poverty and vulgarity of the information sources (mass media), ignorance and the constant and endless assault against the Romanian language and grammar, against everything about the spirit and knowledge, all of these are leading, alongside other factors, to mistrust and fear and to a damaged logic. And our ignorance is only emphasizing our fears and confusion, as well as the untaken decisions or decisions erroneously taken, based on the rule of the thumb and excluding coherence.

I do not claim that Hegel or other metaphysical aspects should be discussed in the courts of law, or in Romania’s Parliament or Government, nor in any other institutional framework vital to our social life (the episode in the US Court recalled by me should not become customary), but I believe that we must fight any disrespectful and shallow support in exercising our logic and cognition. Otherwise, we tend to remain merely concerned with the fate of sick pigs.

Author: Laurentiu Pachiu

Published: November 2013