Regulation

Government’s double U-turn makes fracking rules even more complicated

Picture by David Burr

Picture by David Burr

When is a frack not a frack? And why are some protected areas more protected than others? This post looks at the inconsistencies of some of the rules on fracking.

The government changed its mind again on Wednesday about banning fracking from the surface of England’s most important natural areas.

Tucked away in a long government webpage was a link to a six-week on consultation on “Surface Development Restrictions”. More plainly, this was about plans to exclude fracking from the surface of some wildlife sites.

They include Sites of Special Scientific Interest, where the government said it would ban fracking (January 2015), then said it wouldn’t (July 2015) and this week said it would.

The latest announcement, low-key though it was, makes the labyrinthine rules covering fracking more complex and introduces new inconsistencies. Here are a few of them.

Surface versus underground

If the government’s proposals are adopted, oil and gas companies cannot drill a well to be fracked from the surface of National Parks, Areas of Outstanding Natural Beauty, SSSIs, internationally important wetlands (Ramsar sites), European designated Special Protection Areas and Special Areas of Conservation, and World Heritage Sites.

But companies can frack under any of these areas as long as the rigs are located outside.

The RSPB said this wasn’t sensible. And Hannah Martin, a campaigner with Greenpeace, said:

“Some of England’s special scenery and nature reserves could still be ringed by fracking rigs bringing light, air, water and noise pollution to areas that should be completely protected. This seems like a statement designed simply to mollify concerned backbenchers but lacking the substance to actually protect the countryside from fracking pollution.”

1,200 meters or 1,000 meters?

Fracking can take place underneath National Parks, Areas of Outstanding Natural Beauty and World Heritage Sites at depths of 1,200 meters or more.

Under SSSIs and the other wildlife sites fracking can take places at depths of 1,000 meters.

No one in government has explained what difference 200 meters makes.

Laws, conditions and policy statements

The depth that fracking can take place under protected areas is set out in legislation. The details are in The Infrastructure Act 2015, which amends the Petroleum Act 1998, along with secondary legislation in the still draft Hydraulic Fracturing regulations 2015.

The ban on fracking operations from the surface of protected areas will, if government plans are approved, be a condition in a drilling company’s Petroleum Exploration and Development Licence. But this is just for new licences.

For existing licences, the government will issue a policy statement. This, according to the proposals, will indicate that

“The Secretary of State [presumably of Energy and Climate Change] is not minded to grant consent for any programme which includes ‘associated hydraulic fracturing’, as defined in 4B(1) of the Petroleum Act 1998, from new or existing wells that have been drilled at the surface in specified protected areas”.

“Not minded” doesn’t seem the same as a ban.

Conventional versus unconventional

The bans on fracking from the surface of protected areas and the restrictions of the depths at which fracking can take place apply only to ‘associated hydraulic fracturing’.

They do not apply to drilling for conventional oil and gas, which do not use fracking. They also do not apply to unconventional oil and gas operation, such as the extraction of coal bed methane, if they don’t use high volume hydraulic fracturing.

What is ‘associated hydraulic fracturing’?

The Petroleum Act, as amended by the Infrastructure Act, defines this by the use of fluid used in the hydraulic fracturing of shale. Under the acts something is fracking if it uses:

(1) “More than 1,000 cubic metres of fluid at each stage, or expected stage, of the hydraulic fracturing, or

(ii) More than 10,000 cubic metres of fluid in total.”

So if a company proposes to use slightly less than these volumes is it ‘associated hydraulic fracturing’? And does that mean the restrictions don’t apply? That’s not clear. When asked, the Energy Minister, Andrea Leadsom, said she couldn’t answer because she didn’t have the definition with her.

When asked what would happen if fracking companies tried to get round the law, Mrs Leadsom said:

“That absolutely would not be in anyone’s interests to play games like that. That would be an appalling thing to do. I would absolutely not permit that sort of game-playing to happen. There will be a very clear definition.”

“It won’t be the case that you can simply flout the rules by having a litre or two less of water. That will not be the case I can assure you of that.”

England versus the rest of the UK

This week’s announcement applies only to England. The government plans to devolve the licensing of onshore oil and gas to Scotland and Wales.

In January, the Scottish Government announced a moratorium on all planning consents for unconventional oil and gas extraction, including fracking. It was widened to include underground coal gasification last month but there’s uncertainty about whether exploratory drilling will be permitted in the meantime.

The Welsh Assembly voted in February for a moratorium on fracking through the planning system. And in August the UK government announced it would not issue onshore licences for oil and gas exploration in Wales.

In September, Northern Ireland’s environment minister included a presumption against unconventional hydrocarbon extraction in the Strategic Planning Policy Statement, a new guide for the planning system. The guide did not include a moratorium or ban and it set no timescale for how long the presumption would apply.

Licences, permissions, permits, approvals

To drill a well onshore in England, an oil and gas must get permissions from several local and national government agencies.

  • A Petroleum and Exploratory Development Licence (PEDL) from the Oil and Gas Authority which gives an exclusive right to drill but not permission.
  • Planning permission from the local minerals authority, usually a county council, unitary authority or National Park authority
  • Environmental permits from the Environment Agency, usually covering impacts on groundwater, waste disposal and industrial air emissions, and possibly permits for water abstraction and discharge.
  • Consents from the Health and Safety Executive on the well design and construction and drilling operations.
  • Well consent from the Oil and Gas Authority

In 2012, the Royal Society and Royal Academy of Engineering recommended in a report the co-ordination of these organisations with one taking the lead.

Three years later, the Task Force on Shale Gas, which is investigating fracking, recommended a new bespoke regulator for onshore underground energy. It said:

“It is our belief that not only will this new regulator be able to command more public confidence, its specific remit will allow it to develop expertise and skills required to ensure that it is able to execute its duties effectively.”

The Task Force, which is funded by the industry but says it is independent, proposed that the new regulator should be jointly accountable to the Departments of Environment and Energy and have “the public and environmental impact at the heart of its remit”.

In a report released in March this year it called on the government elected in May to legislate as soon as possible to establish a new regulator.

So far the government has announced no plans to do so and there are no signs that the regulation of onshore oil and gas will get any easier to follow.

1 reply »

  1. This is an excellent piece, many thanks.
    On a slightly different point, planned changes to legal costs protection in environmental cases will hobble citizens from being able to challenge decisions made by the tangle of councils, authorities, agencies, regulators, executives and government departments involved in fracking permits, licences, approvals, best practice guidelines, oversight, enforcement, monitoring and criminal prosecution.
    Claimants seeking judicial review will be exposed to higher costs to bring an action and can be vulnerable to far higher costs if the action fails. At the same time the liability of defendants will be reduced.
    Looking at the list of consultees it seems that a law firm or association may provide this blog with an analysis of the changes that may be useful to lay people. The proposals appear to run counter to the Aarhus Convention which protects citizen rights. The Aarhus Convention came in to being following environmental accidents such as the Seveso disaster of 1976.

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