Legal

Climate change becomes fracking’s legal battle ground

gayzer-frackman-legal-challenge

The ministerial approval of plans for shale gas exploration in Lancashire is being challenged in the courts on climate change grounds.

The Local Government Secretary granted planning permission on 6 October 2016 for Cuadrilla’s Preston New Road site near Blackpool.

This overruled the refusal by Lancashire County Council 15 months earlier, but followed the recommendation of the inspector at a 19-day planning inquiry.

Mr Javid’s decision is now the subject of two statutory challenges.

One, brought by Gayzer Frackman, a Lancashire anti-fracking campaigner (pictured above), claims the minister failed to comply with European law on the climate change effects of shale gas. DrillOrDrop plans to report in future on the other case, brought by Preston New Road Action Group, and a further challenge on Mr Javid’s ruling on Cuadrilla’s second Lancashire site at Preston New Road.

Conflicting regulation

Mr Frackman’s case, expected to go to the High Court in the Spring, centres on when the effects of hydrocarbon production on climate change should be assessed and whether regulation can control effectively the impacts on public health. It is expected to challenge arguments often used in support of oil and gas planning applications.

According to case papers seen by DrillOrDrop, the Secretary of State (described as the 1st defendant) will argue that shale gas is consistent with the aim of the UK planning policy to support the transition to a low carbon future. His case is that the Lancashire sites represented “a positive contribution towards the reduction of carbon” and so should have been approved.

The Secretary of State has relied on the Planning Policy Guidance on minerals (PPGM) in arguing that the climate change impacts of shale gas production should not be considered at this stage because Cuadrilla sought permission only for exploration.

Paragraph 120 of PPGM states:

“Individual applications for the exploratory phase should be considered on their own merits. They should not take account of hypothetical future activities for which consent has not yet been sought, since the further appraisal and production phases will be the subject of separate planning applications and assessments.”

Mr Frackman, the claimant, is expected to argue that the Secretary of State failed to consider cumulative effects, including those of shale gas production, on climate change and public health when he made his decision. The minister may not have granted planning permission if he had not made this and other errors, the claimant has argued.

Specifically, the claimant is expected to say the failure to consider cumulative effects was contrary to the European Union Environmental Impact Assessment (EIA) Directive.

The directive requires that developers provide “a description of the likely significant effects of the proposed project”. A footnote in an annex explains:

“this description should cover the direct effects and any indirect, secondary, cumulative, short, medium and long-term, permanent, temporary, positive and negative effects of the project”.

The claimant has argued:

“For the purpose of compliance with the EIA Directive, the cumulative effects should have included the likely effects of commercial shale gas production; and the 1st Defendant [the Secretary of State] erred in law by limiting the environmental assessment to the exploration proposals for which planning permission was sought”.

Is shale gas production an indirect, secondary or cumulative effect?

The papers suggest that the Secretary of State will argue that commercial shale gas production cannot

“reasonably be considered to be an indirect, secondary or cumulative effect of the application”.

But the claimant has argued that the Secretary of State relied in granting permission on the conclusion that “the projects represent a positive contribution towards the reduction of carbon”.

“The 1st Defendant could only logically reach the conclusion that the projects represent a ‘positive contribution’ by taking into account the commercial shale gas production to which the exploration phase is designed to lead. This has to be so, because the exploratory phase of the developments will not, of itself, lead to any reduction in the carbon intensity of the UK energy supply, it will only increase greenhouse gas emissions (GHG).

“The 1st defendant cannot lawfully consider the cumulative positive impacts of a project while turning a blind eye to the cumulative negative impacts”.

End products and salami slicing

The claimant is also expected to support his case with a decision from the European Court of Justice on what should be included in environmental impact assessments.

The ruling in the 2008 case of Abraham v Region Wallone said an EIA should include impacts

“liable to result from the use and exploitation of the end product of works”.

The claimant argued that the EIA for Preston New Road should have included the impacts of the commercial exploitation of shale gas – the end-product of exploration – as well as the direct effects of exploration itself.

The Abraham case also ruled that EIAs should be carried out early as possible to identify and assess all the effects which the project may have on the environment.

According to the papers, the Secretary of State appears to have discounted the use of the Abraham ruling, arguing that it dealt only with what is known as “unlawful splitting” or “salami slicing” of development.

But the claimant has responded:

“It is a type of ‘salami slicing’ to deal with the exploration stage in a vacuum, separate from the envisaged production to which the exploration is designed to lead and as though exploration were an end in itself.

“Exploration does not take place where it is recognised that recoverable reserves of a natural resource could not be exploited for production, be it for a commercial reason or because of the unacceptable environmental impact of production”.

“The effect of separating the exploration stage for hydrocarbons from their production is to require the decision-maker to be blind to relevant information about the impact of the production stage”.

Can the impacts of production be known?

According to pre-action correspondence, the defence is likely to argue it would be impossible to assess the future impacts of commercial shale gas production.

But the claimant is expected to respond that Cuadrilla must have developed a business case for its Lancashire shale gas sites, setting out the level of production needed for the projects to be profitable.

“Otherwise it would not be possible for Cuadrilla to judge whether the data received through testing of the sites showed that the recoverable reserves would be commercially viable.”

The papers refer to a witness statement made on 8 December 2016 by Francis Egan, the chief executive of Cuadrilla. In it he stated that the company would invest more than £40.5m on exploration and testing at the Preston New Road site.

The claimant argued:

“Such investment would not otherwise be approved or justified unless Cuadrilla considered that there was at least a reasonable prospect of progressing to shale gas production.

“It would clearly be possible with sufficient certainty necessary for EIA to predict the likely GHG [greenhouse gas] emissions arising from production at such a level.”

National policy or individual decisions?

The Paris Agreement on Climate Change was reached a day before the Secretary of State announced his decision in October last year.

But according to the papers, the Secretary of State has argued that the relationship between shale gas extraction and international climate change obligations was a matter for future national policy and not for planning decisions.

In contrast, the Claimant has argued there is nothing in legislation, ministerial statements or planning policy that absolve the Secretary of State from the responsibility of considering the cumulative impacts on climate change likely to arise from granting planning permission.

Precautionary principle

The case will also challenge whether the Secretary of State applied the precautionary principle when deciding if all potential impacts on public health from the development would be effectively controlled by regulators.

In the papers, the claimant refers to the 2014 autumn statement in which the government allocated £5m to provide independent evidence to the public about the “robustness” of existing shale gas regulations.

The claimant has requested disclosure of the independent evidence. According to the papers, the Secretary of State refused, replying:

“You do not explain how this relates to your proposed grounds of challenge. It does not. As such, your request is no more than a fishing expedition”.

The Secretary of State accepted the conclusion of the planning inspector that all potential impacts on health and wellbeing associated with exploration would be reduced to an acceptable level.

But the claimant is expected to argue that Secretary of State could not

“rationally and lawfully reach the conclusion that the regulatory regime system would operate effectively so as to ensure that the proposed development would not have an unacceptable impact on public health and wellbeing”.

“Without the independent evidence, which the Government indicated in its 2014 Autumn Statement it would produce to demonstrate the robustness of the existing shale gas regulatory regime, the claimant contends that the 1st defendant had an obligation to dismiss the planning appeals or alternatively adjourn them pending the provision of such evidence.”

  • Gayzer Frackman is crowdfunding for his case on the CrowdJustice platform

85 replies »

  1. Ministers keep being shuffled around and new ones appointed to pull the wool over the eyes of the general population not following the full narrative about the governments pro fracking stance.
    It was always expected by the industry that gas abstraction via shale method would take place 2017 and I have the company statement published by Peel conglom bragging about this this circa 2010. With such arrogance was the EPA dismantled to deliver a badly staffed and appallingly fracking friendly regulatory body that is not gold standard and pours contempt upon the health safety and welfare of all of us if fracking rolls out.

    I am more alarmed now about the ”no plan” for cleaning up the highly radioactive frack waste when in fact in Yorkshire the EA has not managed to prevent even mountains of household rubbish being contracted to collect by cowboys who have been found to dump it in an old warehouse by the million ton, instead of disposing of it properly.

    This court case seems far better constructed than many others that have taken place so far, and extremely sound in analysis of the law and rulings at national, local and EU level, and will force a better examination of fracking applications and planning regulations applying to them in future hopefully.

    Good luck Gayzer and those supporting you I admire your courage, energy commitment and dedication to helping keep the lack of due diligence by authorities in public view.

  2. Here is a scientific study that also conclude a potential positive impact of shale gas exploitation in reduction of green house gas emissions and the cost of such policy.
    Newell RG and Raimi D. Implication of shale gas production on climate change-Policy Analysis. Environmental Science &Technology (2014).

    • This is misleading TW. Time and again it gets pointed that using shale gas as a (CC friendly) transition fuel is only applicable to states that are moving away from dirtier and older forms of (say) coal mining together inefficient coal power stations. That’s where it has made / is making a significant difference e.g. in some of the US states with a big history of coal mining. Shale methane extraction is a dirty, leaky business, and downstream you still get CO2 as a byproduct of combustion (albeit less than from coal gas). Meanwhile rogue methane emissions are even more bad news than CO2 for climate change.

      • Phil P. Your statement and exertions against published scientific reports have no scientific evidence to support it.
        On contrary to you claims that these findings by the authors and the CCC are misreading because it doesn’t consider methane leaks and methane is more potent GHG than CO2. Well you obviously didn’t read the article because all the reports did account for methane leaks and its potency.
        It is becoming clear to me the anti fracking method is to selectively promote the evidence that support their arguments while suppress and reject other scientific findings that do not support their science with a sweeping statement.

        • Not sure where you’re coming from here TW, I’m always exploring and comparing sources on the science. And I resent the attempt at trying to tar people like myself, conducting independent research, with the same brush as anti-frackers as if they/we are a singular tribe, mindset or method. That discloses that you are not entering into debate in an unbiased way and with this trick that your ‘side’ if I may call it that indulges in all the time. Should I just brand all as ‘frack-heads’ or similar, with your own echo or bubble chamber and alternative branch of ‘science’?

          The science is very clear on methane as a greenhouse gas whose temperature forcing properties are more powerful and immediate than CO2 . In the atmosphere as a whole it counts for one third of the overall greenhouse gas warming (and rising), CO2 being far more abundant. Water vapor surpasses both in its heat trapping potential. From Phys.org:
          “Methane is a relatively potent greenhouse gas with a high global warming potential of 72 (averaged over 20 years) or 25 (averaged over 100 years). Methane in the atmosphere is eventually oxidized, producing carbon dioxide and water. As a result, methane in the atmosphere has a half life of seven years. The abundance of methane in the Earth’s atmosphere in 1998 was 1745 parts per billion, up from 700 ppb in 1750. Methane can trap about 20 times the heat of CO2. In the same time period, CO2 increased from 278 to 365 parts per million.”

          Please show me where your CCC refers to the science of methane as a greenhouse gas, and where, as you say it does account for methane leaks and its potency. So far I’ve seen that it “finds that exploitation of shale gas on a significant scale is not compatible with UK carbon budgets, or the 2050 commitment to reduce emissions by at least 80%, unless three tests are satisfied: …”
          … So the tests, where this science kicks in, is what I’m now interested in so again I ask who is going to measure and report on those emissions.

          • … oops, triggered ‘send’ too soon. Was about to refer to your next comment – listing the tests. The debated area of emissions (from the US) is in the discrepancy between the EPAs figures, which is mostly based on what the industry tells them – around 0.8% upstream and 0.8% downstream (from initial capture and storage) – and about 2% for the overall capture & transmission system, whereas Howarth and other studies using ‘top down’ using (actual) measurement rather than ‘bottom up’ calculations. These reveal approx 2.9% upstream and similar for downstream emissions… overall, allowing for some variability, concluding that between 4 and 6% of gas is lost through the whole production/transmission chain.

  3. “The CCC’s report finds that the implications of UK shale gas exploitation for greenhouse gas emissions are subject to considerable uncertainty – from the size of any future industry to the potential emissions footprint of shale gas production. It also finds that exploitation of shale gas on a significant scale is not compatible with UK carbon budgets, or the 2050 commitment to reduce emissions by at least 80%, unless three tests are satisfied:

    1. Emissions must be strictly limited during shale gas development, production and well decommissioning. This requires tight regulation, close monitoring of emissions, and rapid action to address methane leaks.
    2. Overall gas consumption must remain in line with UK carbon budgets. The production of UK shale gas must displace imports, rather than increase gas consumption.
    3. Emissions from shale gas production must be accommodated within UK carbon budgets. Emissions from shale exploitation will need to be offset by emissions reductions in other areas of the economy to ensure UK carbon budgets are met.”
    All three tests will be monitored closely as the industry developed.
    I am not sure if Frackman have read this report by the CCC inquiry published July 2016.

  4. The critical issue is whether the LCCs Councillors made their decision against the PNR drilling proposals based on the terms of reference within Local Government’s devolved powers. They did not. Hence the Secretary of State’s ruling. End of case.

  5. Gayzer1 Thankfully- democracy is underpinned by the law. Planning Law has limits to its authority. Councillors are accountable to the limits of planning law. if they make a decision which is not in alignment with planning law then they will be overruled. The LCC legal council did warn them and the Planning Officer explained why the Councillors should have supported the application. They did not. Hence the Secretary of State’s decision.

    • Thankfully you are on the side of the Frackers.
      We shall put our case forward like we did at LCC which I have been at and involved with from day one so probably know a little more about it than you ‘the expert!’

    • Nick – re. law – I think it may be relevant here. I’ve just posted a response (to peeny) further up. As it’s a nested response it went into the ‘older comments’ part (link at bottom). There are some other recent points I’ve made too – responses to TW.

  6. Gayzer – yes I also remember you repeating the meme at the LCC that shale gas wells were really being drilled for radioactive waste disposal (which originates from another local campaigner on the Fylde). I also saw you on Russia Today repeating the same (edited by moderator,) When I challenged you at Chichester recently you denied it. Clearly you are not a reliable witness. I hope the judge agrees with me.

    • Please show me the clip.
      We deal with evidence and you will find this is why we have cost the industry so much.
      I have taken on industry and [edited by moderator] professors and they always fluff their lines when they try to sell fracking.
      You never did answer my question I asked
      When an aquifer becomes contaminated how long would it take to clear or be cleaned?

      • [Edited by moderator] How on earth do you expect anyone to explain a complex issue when you were so rude as to keep interrupting me over an over again, within seconds? As I said at Chichester, Prof Smythe was completely unscientific in stating that once a an aquifer is polluted it is polluted forever. He did not pick up on my point. There are many variables here, such as (and I am not being comprehensive here) how much pollutant entered the aquifer?, what is the pollutant? Did it enter into the saline zone, or into the potable zone? What flow regime is in the aquifer? What attentuation mechanisms are present, what remediation can be deployed, are any of the pollutants bioavailable? etc etc …. I suppose you will have to talk to an expert and have an attitude to learn?

        • Nick I hear you loud and clear you do not know, so you can’t really say that Professor Smythe is wrong! I think your dislike of him is plain to see and your support of a fracking weakens your objectivity.

          • Gayzer – I do dislike Prof Smyth, primarily because he is unproffessional & wrong and misleads the anti-frackers poviding spurious arguments that you wish to hear. Also because on his website he ridicules me and many other earth scientists – so that is the sort of person you are dealing with.. It is a pity Ruth edited my comments about your behaviour at the Chichester debate, it was an accurate account of how you behaved- she was there. Anyway, I will for the very last time – cast a pearl in your direction regarding aquifers and processes that lead to attenuation of pollutants. See https://www.eolss.net/Sample-Chapters/C07/E2-09-04-05.pdf

        • Do Portsmouth Water (or other water authorities) have reservoir simulation models of their aquifers? (Eclipse or similar). It should be simple to model the effects (flow paths, time) of any leakage from an oil or gas well into the aquifer. I assume the results of any modelling could be requested.

      • Sea water can be desalinated using electrcity made from gas – as it is all over the Middle East. Gas security provides water security in the UAE and also Omasn I believe now. And no doubt Qatar. Anywhere over there with a golf course will be desalinating water using gas. And I hate golf…..

        • So glad the Frackers have got you Nick.
          Priceless!
          So turn clean drinking water into toxic waste which creates drought and shortage of water making it more expensive.
          You then need to create energy to desalinate seawater to drink which makes a small group of Frackers and utilities companies very rich.
          I see your major is corporate economics or humanitarian exploitation.

          Still an unanswered question above Nick.
          How long does it take to clean a contaminated aquifer?
          Also how would you do it?
          How much would it cost?
          I do like grilling experts!

          • To answer your questions.
            Assume a well is leaking into an aquifer (this is the injection rate). You are producing water from some other well (drawdown). The time that it takes for the oil/gas to reach the producing well will be a factor of injection pressure, drawdown, distance, permeability (and relative permeability). The oil/gas will rise to the top of the aquifer and will be trapped in any anticlines along the flow path, so it might never reach the production well. It is impossible for me to say how long oil/gas might take to reach the production water well and therefore cause pollution. As I outlined above in another post, this is easy to model if water companies have the appropriate software. (Note that these capitalist oil companies do not like losing money and therefore the last thing they want is their precious hydrocarbons trickling away elsewhere. They therefore monitor their production wells to ensure they don’t lose any hydrocarbons.).

  7. Phillip P. I posted this link from CCC report and this study from the US before. But here it is again. Please have a read yourself. I am sure they are very educational for both of us. Both considered the effects of of methane emissions as a more potent GHG.

    https://www.theccc.org.uk/2016/07/07/exploitation-of-onshore-petroleum-requires-three-key-tests-to-be-met-ccc-says/

    Newell RG and Raimi D. Implication of shale gas production on climate change-Policy Analysis. Environmental Science &Technology (2014)

    • TW. I have looked at both and am not seeing what you are claiming. Firstly you mistook my response to the Newell/Raimi as applying to the CCC report. Then you said “all the reports did account for methane leaks and its potency” .

      So then I asked “Please show me where your CCC refers to the science of methane as a greenhouse gas, and where, as you say it does account for methane leaks and its potency”. It implies that it is accounting for it in those criteria but does not say how, or indeed how the monitoring and reporting would be carried out to reach any kind of conclusion on the matter. Nor does it discuss any details of the science and issues around methane emissions regarding how they will establish their own metrics or standards for further judgement.

      … I am very interested in how they are investigating this in terms of the science and known data which, on the basis of available information, suggests that those criteria won’t be met (despite what the industry claims of its own high standards). If there are going to be some innovations that are about revolutionise the cleanliness and safety of the whole business of shale gas fracking I would love to know how they are going to go about this.

      Hence my query – Who is going to measure and report on those emissions TW? Is it being left up to the industry (to self monitor)? the EA? and will the current EU directives on clean water and air be observed / abandoned.

      • Phil P. Please read the link report and paper again. They clearly state what claim in my post. And I believe these questions of yours have been answered before. Like most anti fracking debate you keep recycling the same questions and issues over and over again even though they are already addressed. If you want the answer again please go back on previous post. If you wamt more detail contact the EA HSE our council MP Minister BGS or UKOG. Please dont ask the same question over and over again. People don’t like to repeat themselves over and over again.

        • It’s a simple enough query (which I won’t repeat again). Perhaps you don’t understand it or are just not interested. And no, it’s not answered in the papers however I accept that the 3 criteria are clear enough, and I look forward, along with the public, to knowledge of how the monitoring and evaluation will work.

  8. I’m unsurprised to see comments from Dr Nick Riley trying to downplay the risks of the irreversible contamination of aquifers, as it’s a key point, and therefore one he’s often shown great willing to dismiss. While he commented earlier on this strand as follows – in what appears to be a fit of (mis-spelt) pique: “Gayzer – I do dislike Prof Smyth,(sic) primarily because he is unproffessional (sic) & wrong and misleads the anti-frackers poviding (sic) spurious arguments that you wish to hear. Also because on his website he ridicules me and many other earth scientists – so that is the sort of person you are dealing with…” I would personally suggest that such comments display an ungenerous and unprofessional spirit towards his fellow “earth scientists” – and he might do well to remember that Prof Smythe (with an “e”) is still the Emeritus Professor of Geophysics at Glasgow University. While Dr Riley also states the following regarding the polluting of aquifers: “I suppose you will have to talk to an expert and have an attitude to learn?” he may be interested to know that many of us have already done so and the following draft CPRE statement may be useful to him in understanding the risks of irreversible contamination (as are many that I’m in possession of) as it has been researched and authored by the hydrogeologist, Graham D. Warren, formerly of the Environment Agency for almost 30 years. I draw Dr Riley’s attention to Graham Warren’s statement as follows: “We also have to keep in mind that most instances of large-scale contamination of groundwater have to be accepted as, for all practical purposes, irreversible. The level of risk is such that there is now a consensus of independent professional opinion opposed to the practice of fracking in fault zones…. Coastal Oil and Gas are seeking Planning Permission for 3 sites near Dover where the shales are situated within the Kent coal measures, at no great depth beneath the Chalk aquifer which provides 70 to 90% of the local public water supply. The sites are also located close to a number (possibly up to 20) of water company boreholes, and contamination of just a few of these would represent a significant loss of supply capacity. Representations by CPRE have also been made with respect to Planning applications submitted by Celtique Energie for sites in Sussex at Fernhurst and Kirdford…” The entire draft statement is as follows. (NB Since submitting expoloratory applications in Kent, Coastal Oil & Gas Ltd have not only withdrawn them, they have (since 2014) relinquished every licence too. That is what we call a successful outcome here in my county. DECC/AMEC: STRATEGIC ENVIRONMENTAL ASSESSMENT FOR FURTHER ONSHORE OIL AND GAS LICENSING. JAN 2014.
    COMMENTS ON THE ENVIRONMENTAL REPORT RELATING TO SHALE GAS EXTRACTION.

    1. INTRODUCTION.

    To date, Kent CC has received 4 applications from Central Oil and Gas for temporary planning permission to carry out exploratory drilling and testing. One of these, Woodnesborough has received a conditional grant of planning permission and the remaining three applications, all sited in the Dover area (Guston, Shepherdswell and Tilmanstone), are in abeyance pending further information from the Applicant. Subject to the outcome of the exploratory drilling programme, it is expected that the Applicant will seek further permits and consents for the extraction of shale gas involving hydraulic fracturing.

    Our own researches lead us to the conclusion that the sites in question are unsuitable for development by fracking, insofar as they are all characterised by the presence of numerous geological faults, many of these associated with the coal measures of the Kent Coalfields. Expert opinion so far endorses our concerns with respect to the risk of re-activation of any of these faults and consequent creation of new pathways for the migration of gases and fracking fluids into the overlying Chalk aquifer of the N. Downs – a major water resource supplying 70 to 90% of Kent’s domestic and commercial requirements.

    For ease of reference our response to the Consultation Document takes the form of a brief outline of the Environmental Report Non-Technical Summary (NTS) and where appropriate, this includes relevant CPRE comments.

    We are very pleased to have had the opportunity to comment on the assessment and trust that our response will be received as a constructive contribution to the debate on this very sensitive issue.

    2. OUTLINE OF ENVIRONMENTAL REPORTS.

    The report by the Association of Mineral Exploration Companies (AMEC) includes Environmental Impact Assessments of options for further licensing beyond the current (13th) round for both conventional and unconventional (shale gas) developments. The following deals exclusively with shale gas exploration and extraction, and considers the implications of the assessments, with special regard to the impact on the Kent sites

    Alternative levels of development are assessed for:-

    i] Full development as proposed
    ii] Restricted further development
    iii] No further licensing beyond the current level.

    Each development option is broken-down into 6 stages and assessed under 2 scenarios corresponding to Low and High levels of activity. Table 2-7 of the NTS sets out the parameters and activity levels for each stage of the site operations as shown below, with separate impact assessments for each of 12 objectives:-

    SHALE GAS DEVELOPMENT.

    PRINCIPAL ACTIVITIES.

    Stage 1 Preparatory, including:-

    • Site selection
    • Seismic surveys
    • Securing permits

    Stage 2 Exploratory drilling and testing , including:-

    • Pad prep, road construction and baseline monitoring
    • Well design and construction
    • Hydraulic fracturing
    • Testing and flaring

    Stage 3 Production development, including:-

    • Ancillary infrastructure
    • Well completion
    • Further hydraulic fracturing
    • Pipeline connections
    • Re-fracturing

    Stage 4 Production, Operation and Maintenance, including:-

    • Gas production
    • Hydraulic re-fracturing
    • Disposal of wastes and emissions
    • Power generation, chemical use and well integrity testing

    Stage 5 Decommissioning, including:-

    • Well plugging and testing
    • Site equipment and removal
    • Environmental monitoring and well integrity testing

    Stage 6 Site restoration and hand-over, including:-

    • Pre-handover survey and inspection
    • Site restoration and reclamation.

    ASSESSMENT OBJECTIVES.

    1. Biodiversity 7. Air
    2. Population 8. Climate change
    3. Health 9. Waste
    4. Land use, geology and soils 10. Resource use
    5. Water 11. Cultural heritage
    6. Flood risk 12. Landscape

    (Ref Para 5.3 pp79 – 82)

    The impact assessment by AMEC are scored according to a scale of 5 alternative “effects” under both Low and High Activity Scenarios:-

    Significant Positive (i.e. beneficial)
    Minor Positive
    Neutral (no overall effect)
    Minor Negative
    Significant Negative (i.e. adverse)

    3. SUMMARY OF ASSESSMENTS.

    Assessments for the 3 most critical stages (2 – 4) have rated 10 of the 12 objectives as demonstrating a predominantly negative (i.e. adverse) impact, with Population rated as neutral and Flood Risk as “uncertain”. (Ref. Table 1, based on NTS Table 5.2)

    3.1 BIODIVERSITY (Page XIX)

    Concerns here relate to European Directives and impact on designated sites and habitats. Stages 2 – 4 rated as having a minor negative effect.

    3.2 POPULATION. (Page XX)

    Additional employment opportunities of 16,000 to 32,000 for Low and High Effect respectively have been forecast, depending on the ratio of skilled to unskilled posts and the availability of individuals on the labour market. The overall neutral rating also reflects the assessment of the financial contributions to the community as an economic benefit.

    CPRE Comments.

    We would question the financial contributions as economic benefits insofar as these amount to no more than compensation for the disturbance, distress and material loss incurred by the local community. It is, perhaps, also significant that no reference is made to possible future reductions in energy charges to consumers; suggesting that the developers have accepted the consensus expert opinion to the contrary.

    3.3 HEALTH AND SAFETY. (Page XXi)

    This is assessed as subject to a locally significant negative impact, but the emissions from fracking operations are regarded as “manageable if the necessary regulatory requirements are followed”.

    CPRE Comments.

    Effective management of emissions depends on the standard of well construction, including the quality of the steel casing and the integrity of the grout seals. These components are all subject to chemical attack and stress failure. Figures for the industry put the life of a well at no more than 20 years and localised damage can occur within just one or two years. The Blackpool episode is an example of fracking resulting in instantaneous casing failure and no amount of monitoring is likely to head-off similar events in the future.

    We are not reassured by the statement that “adoption of pollution control management procedures consistent with relevant regulatory controls would help to mitigate this risk”. Also “taking into account the potential scale of construction activities in particular, there could be minor negative effects on health, with the potential for the effects to be locally significant, but any such effects can be expected to be mitigated through planning controls”. In other words, there are unavoidable risks to health for local communities, and it is therefore, surprising to read the supplementary assessment (pp 91 -92) dealing with negative effects arising from well construction failures concluding with the statement that “risk of wells failing, if appropriately designed, constructed and maintained, is very small and therefore, under the current regulatory framework, no significant risk to human health from this issue is anticipated”. Unfortunately evidence from incidents recorded in US and Australia suggests otherwise (See also Water).

    3.4 LAND USE GEOLOGY AND SOILS.

    The total land-take for shale gas development is estimated at 240 to 360 ha, some of which could be significant if the land is of “high” agricultural value.

    CPRE Comments.

    The risk here is also addressed with reference to the Blackpool seismic episodes of April / May 2011 which were subsequently attributed to the re-activation of an existing fault system by fracking operations at Preese Hall. An independent review (Green et al 2012) concluded that maximum seismicity from fracking would be no greater than 3ML (“equivalent to a passing truck”)

    The European Commission report of 2012 is quoted as stating that “significant seismic effects are rare” and DECC (p93) take the view that, on the basis of prior geological surveys of stresses on the existing fracture pattern, appropriate controls are available to mitigate the risks. They are encouraged in this view by the Royal Academy of Engineering and the written ministerial statement that new controls will be implemented and enforced by DECC.
    Again, it is assumed that there will be adequate monitoring and effective planning control, but no system, however comprehensive and sophisticated can give sufficient warning of seismic disturbance or protect against damage at depth with its consequences for the community.

    3.5 WATER. (Page XXii)

    There is a stated commitment here to maximise water efficiency and to protect and enhance water quality in line with the Water Framework Directive. It is also acknowledged that the total volume of water used will be “substantial and significant”, amounting to 9 Mmᶟ for the High Activity scenario. It is assumed that supplies could be secured from water companies or by direct abstraction under licence from the Environment Agency (subject to sustainability considerations). Demand could be reduced if flow-back water is re-used or re-cycled. The consultants seem confident that the Memorandum of Understanding between the water companies and operators will ensure effective co-operation throughout the shale gas exploration and extraction stages and “minimise” any adverse effects on water resources and the environment.

    The risk of surface water contamination is considered to be low, given appropriate regulation. But the potential threat to groundwater quality is acknowledged, arising from loss of well integrity and discharge of drilling or fracking fluids or “where there are pollution pathways from the surface to a body of groundwater”, although we are again assured that “such risks could be adequately managed”. Hence the Licensing Plan is assessed as having a minor negative effect, with the potential to have a significant impact within any given sector. The significant negative effects of hydraulic fracturing are discussed further on pp 91 – 92, pointing to the potential risk of release of fracking fluids or flow back water if the cement grouting of a well is inadequate or fails under pressure. This could have implications for contamination of water supplies and public health in general. There is further acknowledgement of the risk of fracking pp 95 – 96 causing groundwater contamination by leakage of methane resulting from inadequacies in well construction or by movement of fluids through existing faults or porous rocks into adjacent aquifers. But the authors here assert that “the process has not been observed in practice and would be unlikely”.

    Water requirements for fracking are discussed on p. 94 where stages 2 to 4 are acknowledged as requiring substantial volumes: anything from 10,000 to 25,000 Mᶟ/well. For the High Activity scenario, the corresponding demand (all stages) would fall between 58 Mmᶟ and 144 Mmᶟ.
    The long term potential is uncertain but the European Commission report highlights:-

    • Reduced streamflow
    • Adverse impact on habitats and ecosystems: including degraded quality, reduced flows, temperature changes, reduced oxygen levels, sedimentation and erosion.
    • Impact on waste-water treatment operations and reduced dilution of effluent
    • A general deterioration in water quality.

    Note is also made (p. 95) of the pressures on public water resource supply zones in the South East and the (assumed) responsibility of the constituent companies to ensure that any additional demand can be accommodated in their water resource management plans. This will not be the case for the majority of companies and it is unlikely that the increased output could be sustained at times of peak PWS requirement without recourse to restrictions on a scale that would normally only be invoked under drought conditions; adding to the burden on local communities. DECC however expects effective co-operation between Water UK and the operators’ representatives (UKCOOG) as set in the Memorandum of Understanding, concerning:-

    • Baseline monitoring
    • Water Management Plans
    • Onshore shale gas plans, including forecast development levels

    The alternative of direct abstraction is also discussed but this will also be subject to licensing control by the Environment Agency and only authorised if the additional demand on the resource is sustainable; and on the basis of current resource assessments in Kent, this is unlikely.

    It is also accepted that demand for water could be substantially reduced by recycling or re-use of flow-back water but it is conceded that there is a “risk of a significant adverse effect actually occurring at the individual pad level or within any water resource zone”.

    CPRE Comments.

    The conclusion that the impact of fracking on groundwater quality has not been observed in practice and would be unlikely runs counter to the consensus of expert opinion which draws on experiences in US, Europe and Australia. And questions have arisen in Kent and Sussex (Ref Appendices) concerning the likelihood of fracking operations triggering contamination of groundwater in the Weald and N. Downs.

    Planning applications are in preparation by shale gas exploration companies for permission to drill at sites throughout the Kent and Sussex Weald and East Kent. Both regions are known to be underlain at depth by beds of shale which could prove to have potential as sources of commercial quantities of methane; but to extract the gas would entail hydraulic fracturing to break up the formation. This gives cause for concern insofar as if the fracking process is capable of breaking up the shales, it is also capable of doing the same to the overlying rock formations; creating new pathways for the flow of gases and fracking fluids into the region’s soils, surface water courses and shallow aquifers.

    Both regions also feature geological “faults”; planes of structural weakness developed along fractures in the rock formations which allow vertical or near-vertical slippage between adjacent blocks. Fracking could re-activate these (the Blackpool episode is a case in point) and create additional pathways for the migration of contaminants. This has environmental quality and public health implications for private and public water supplies, agriculture, amenity and both river and wetland habitats. We also have to keep in mind that most instances of large-scale contamination of groundwater have to be accepted as, for all practical purposes, irreversible. The level of risk is such that there is now a consensus of independent professional opinion opposed to the practice of fracking in fault zones. It is already banned in France and Germany. Coastal Oil and Gas are seeking Planning Permission for 3 sites near Dover where the shales are situated within the Kent coal measures, at no great depth beneath the Chalk aquifer which provides 70 to 90% of the local public water supply. The sites are also located close to a number (possibly up to 20) of water company boreholes, and contamination of just a few of these would represent a significant loss of supply capacity. Representations by CPRE have also been made with respect to Planning applications submitted by Celtique Energie for sites in Sussex at Fernhurst and Kirdford.

    Most, if not all of the intended planning applications are for exploratory and testing purposes to determine the location and likely yield of the shale gas beds. Assuming a satisfactory outcome, the applicant would then seek authorisation for gas extraction by fracking. The question arises however, as to the wisdom of granting planning permission for exploratory drilling at sites known to feature geological faults, given that, irrespective of the outcome, no authorisation for extraction could follow. To proceed otherwise, would be to incur an unnecessary burden on the public purse and pose a threat to the environment and the region’s increasingly vulnerable water resources; with implications for the quality of life of the affected communities.

    In the event however, that exploratory drilling comes to Kent and Sussex, effective regulation will require continuous, 24 hour, uninterrupted monitoring and supervision by the regulators to ensure full compliance with the conditions of the licences and consents. What are the chances of this, given that the Environment Agency is already under-staffed and under-resourced for its existing commitments, and is now facing further cuts? The current expedient of “self-regulation” amounts to no-regulation and we now face what can only be interpreted as active encouragement of largely un-hampered shale gas development; presumably, as a matter of national policy.

    Copies of the CPRE representations and supporting notes are included in Appendices A,B and C.

    3.6 AIR QUALITY.

    The objective here is to minimise the emission of polluting gases and particulates in accordance with European Directives. This includes emissions from plant and transport, drilling operations and fracturing; and their impact on communities, biodiversity and agriculture. The Licensing Plan is assessed as a minor cumulative negative local effect; but “any such effects can be expected to be integrated through planning and regulatory controls”.

    3.7 CLIMATE CHANGE.

    The stated objective is to minimise greenhouse gas emissions and total additional GHG rates are estimated at 0.96 MtCO₂e/annum for a maximum of 360 wells/annum. But there is a significant cumulative negative effect at stages 2 to 4 at sector level.

    3.8 WASTE MINIMISATION.

    The objective is to ‘promote’ (?) recovery, re-use and re-cycling of wastes, and to minimise environmental impact. The assessment is minor to significant negative for Low and High effects respectively at stage 2 and consistently significant negative for stages 3 and 4.
    Estimates of waste output range from 3,240 to 6,480 Mᶟ/well. At the High Activity level, waste-water rates could exceed 100 Mmᶟ for stages 2 – 4 and this would amount to a “substantial additional burden on existing wastewater treatment capacity” and could locally require provision of additional plant by the Waste Water Undertaking.

    3.9 RESOURCE USE.

    This addresses the question as to whether or not shale gas extraction would contribute to more sustainable low carbon energy use. Much depends on the final estimates of shale gas resources and this will have to await completion of the bulk of the exploratory drilling and testing phase under stage 2. A High Effect scenario could represent anything from 0.12 to 0.24 t Mᶟ (more than 6 x the 2012 level and twice the annual average).

    CPRE Comment.

    On the basis of the assessments under stages 3 and 4, the conclusion so far would be that shale gas is not likely to prove a viable component of a low carbon strategy.

    3.10 CULTURAL HERITAGE.

    The assessment includes an evaluation of the impact on historic assets, and on this basis stages 2 to 5 register a cumulative minor negative effect with uncertainty concerning localised outcomes.

    3.11 LANDSCAPE.

    With the objective of protecting and enhancing (?) landscape quality and visual amenity, it is assumed that the plan will continue to observe a minimum separation of 5 km between pad sites. But it is acknowledged that there would be a significant negative effect in National Parks and AONB areas. Under the High Effect scenario, up to 24 wells could be drilled on each pad and rigs could be on site for up to 2 years.

    Overall; a minor negative effect with potential for significant local negative.

    CPRE Comments.

    There is an additional reference on p96 to the landscape impact of pad preparation under Stages 2 & 3, asserting that there would be only minor negative effect, but adding that there would be potential for further adverse effects depending on location and rig height; the impact in such cases being ‘minimised’ by application of Best Available Technology (BAT). There will also need to be special provision for AONB and National Parks. Overall, effective control rests on regulation in line with the EIA.

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