Infrastructure Bill becomes an Act – what’s finally in it and what do people think about it?

The Infrastructure Bill, which included measures to make it easier for oil and gas companies to drill under private land, received its royal assent this morning.

Last night, in the final debate, MPs passed a set of conditions on fracking which many believed had been watered down by the government. See our report of the debate

The bill began its passage in the House of Lords on 5th June last year and is expected to get royal assent very soon. It had 13 sessions in the House of Lords and 16 in the Commons but many MPs complained that they did not have enough time to debate and vote on the fracking sections.

So what do these parts of the Act look like now and what do industry and campaign groups think about it? We review the latest version and the reaction to it.

Maximising the economic recovery of oil and gas

The Act makes it a principal objective of the government to maximise the economic recovery of UK petroleum. This is to be achieved by the development, construction, deployment and use of equipment used in the petroleum industry and collaboration with, among others, holders of petroleum licences, operators and owners of petroleum infrastructure. The Secretary of State must produce strategies to meet the objective.

Right of access to land
The Act gives a person the right to use deep-level land to exploit petroleum or geothermal energy without the consent of the owner. The Act absolves the person who owns the land of liability for any loss or damage caused by this use of the land by someone else. Some MPs complained that they did not have the chance to vote on this section of the Bill. About 95% of people who responded to the government consultation on this measure were opposed to it. The Green Party MP, Caroline Lucas, tabled an amendment on this part yesterday but it was not voted on or discussed.

Leaving substances underground
The Act allows oil and gas companies to leave land in a different condition than they found it and to leave any infrastructure or substances in the land. There was no vote on this section in the House of Commons.

Impact on carbon budget
The Act requires the Secretary of State “from time to time” to ask for advice from the Committee of Climate Change on the impact of burning oil and gas extracted onshore and the impact of fugitive emissions on UK carbon target and budgets. After considering the advice, the Secretary of State must produce a report and put it before parliament.

The fracking sections of the Act do not apply to Scotland.

Conditions for fracking
The Act says the Secretary of State must not issue a well consent unless a set of conditions are met, or he/she is satisfied that it is appropriate to issue the consent. The Act sets out documents that should be produced to satisfy the Secretary of State that the condition has been met. But it says that the absence of a document does not prevent the Secretary of State from being satisfied. It also says a fracking consent “may be issued subject to any conditions which the Secretary of State thinks appropriate”. The conditions cover the following:

  1. Depth
    Fracking is prohibited at depths of less than 1,000 metres, unless the Secretary of State gives consent.
  2. Protected areas
    Fracking is prohibited in protected areas. But the definition of protected areas is to be set by the Secretary of State in regulations to be put before parliament by 31st July. The government rejected a call for fracking to be banned under protected areas. This means fracking companies could drill horizontally under national parks from just outside their boundaries.
  3. Groundwater sources
    Fracking is to be prohibited in “protected groundwater source areas”. But again the definition is to be set by the Secretary of State in regulations not required until 31st July. The government rejected calls for fracking to be banned in Groundwater Source Protection Zones 1-3, as defined by the Environment Agency
  4. Environmental impact
    Planning authorities will have to take account of the “environmental impact” of fracking developments. There is no explicit requirement for an Environmental Impact Assessment.
  5. Well integrity inspections
    The Health and Safety Executive will be required to visit the site of fracking wells. They must also provide a certificate that it has received a well notification under existing regulations. Labour’s amendment on this issue, which was rejected, specially required independent inspections of well integrity. During a debate last month, the government agreed that inspections would be unannounced. But there is nothing in the Act that requires this.
  6. Methane in groundwater
    Methane levels in groundwater will have to be monitored for 12 months before fracking can begin. The government is proposing to allow groundwater monitoring wells to be drilled without requiring planning permission.
  7. Methane in air
    The environmental permit for a fracking site will require monitoring of methane emissions. The government rejected Labour’s proposal for monitoring after a site has been decommissioned. There is no requirement for long-term monitoring of other gases.
  8. Substances
    The environmental regulator will have to approve substances used, or expected to be used, in fracking.
  9. Cumulative effects
    Local planning authorities will be required to take into account the cumulative effects of an application and other fracking applications.
  10. Restoration
    Planning authorities must consider whether to impose a restoration condition for fracking operations.
  11. Water companies
    They must be consulted before planning permission is granted. There is no requirement for planning authorities to take action based on the advice given.
  12. Informing the public
    Operators will have to show they have given the public notice of fracking applications. The government rejected Labour’s call for people to be notified individually. The government also rejected an amendment which required people to give consent, as well as being notified individually.
  13. Community benefit
    A scheme must be in place to provide “financial or other benefit for the local area”. There is no reference in this condition to the scheme being funded by the operator or the industry.

Definition of fracking
The Act ncludes this definition: hydraulic fracturing of shale or strata encased in shale in search for or extraction of petroleum. It would involve, or be expected to involve, the injection of more than 1,000 cubic metres of fluid at each stage and more than 10,000 cubic metres of fluid in total.

What the conditions apply to
The conditions that must be met for fracking to go ahead do not apply to geothermal operations. The Government said yesterday “conventional oil and gas well stimulation techniques will also be excluded”. They apply to England and Wales only.

(In alphabetical order)

Richard Casson, Greenpeace
Crucially, at the 11th hour, the Bill was severely weakened by the House of Lords. Key sections were changed meaning that important regulations on the fracking industry (rules that had been put forward by the Labour Party in recent weeks) now won’t be put into place. What this means is that national parks and water sources won’t be fully protected from fracking. So while Scotland and Wales have raised clear concerns about the health and environmental impact of fracking, in England it’s full steam ahead with the dash to drill for shale gas and oil.

Nick Clack, CPRE
The Government claimed last week to have introduced strong legal safeguards on fracking to protect the countryside and communities. Yesterday ministers undermined that claim and further eroded public confidence.

It is both disappointing and concerning that the Government has chosen not to reinstate in legislation important controls such as the explicit requirement for an Environmental Impact Assessment, or the outright ban on fracking under National Parks and other protected areas they previously committed to. This calls into question the Government’s commitment to so-called world class fracking regulation.

We are also concerned that the definition of fracking introduced by the Government, based on the volume of fracking fluid, could enable companies to bypass the limited legal controls that have been retained.

Ken Cronin, of the industry body UK Onshore Oil and Gas
The industry can get on with finding out the extent of the recoverable reserves of natural gas below our feet. Many of the issues raised in the amendments are already complied with by the industry voluntarily. (From The Guardian)

Caroline Lucas, Green Party MP for Brighton Pavilion
As the Government’s changes to the safeguards, which have now become law, significantly weaken them, further strengthening of the legal requirements are therefore still necessary to ensure robust protections for the countryside and communities, and to provide members of the public with the reassurance they need.
The speed at which the Government is rushing though the Infrastructure Bill is disgraceful. Ministers are doing the dirty work of fracking companies by denying MPs the chance to properly scrutinize the changes. This makes a mockery of public concerns about fracking and the democratic process.

Not only does this Bill defy public opinion, it denies people a voice. To allow fracking companies to drill under people’s homes and land without their permission is to ignore public interest in pursuit of the vested interests of a few.

Three quarters of the general public oppose changes to the trespass law. But their legitimate concerns over the very real environmental and health risks of fracking are falling on deaf ears in Government.

If we’re serious about avoiding catastrophic climate change, the vast majority of fossil fuels cannot be burned. This Bill should have included a ban on fracking and much more to harness the UK’s renewable energy resources instead.  The only safe and sensible thing to do with shale gas is to leave it in the ground.

[Updated with the royal assent]

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