Shale gas regulation is not “up to scratch” – High Court challenge to Lancs fracking consent


Photo: Cheryl Atkinson

The Communities Secretary, Sajid Javid, should not have approved Cuadrilla’s fracking plans because shale gas regulation was not good enough, the High Court heard this afternoon.

The argument was part of a legal challenge brought by a Lancashire resident to Mr Javid’s decision to grant permission for drilling, fracking and testing up to four shale gas wells at Preston New Road, near Blackpool.

Mr Javid’s decision, announced in October 2016, followed the recommendation of an inspector at a public inquiry and overruled the refusal of permission by Lancashire County Council.

Marc Willers QC, for the resident Gayzer Frackman, told the court in Manchester this afternoon:

“The fracking of these wells should not have been granted permission because the regulatory system was not up to scratch.”

The court heard how the Secretary of State had referred in his decision to a written ministerial statement by the then energy secretary, Amber Rudd. Presented to parliament on 16 September 2015, this said “safety and environmental protection will be ensured through responsible development and robust regulation”.

But Mr Willers told the court:

“Saying it is in the written ministerial statement doesn’t make it so.”

The inquiry inspector had concluded that the impacts on health and wellbeing could be reduced to an acceptable level. But Mr Willers said:

“We say that recommendation is irrational when you look at the evidence before the inquiry … and the absence of any tangible demonstrative evidence to the contrary.

“All she [the inspector] had was the government saying it is robust.”

Mr Willers referred to a report by the Committee on Climate Change which, he said, suggested the regulatory system was not yet robust enough to be relied upon.

“Given the evidence that showed there was no robust system in place and given the possibility that grating planning permission would give rise to demonstrable harm to public health, this should have prompted the Secretary of State and the inspector that there appeared to be gaps in the regulatory scheme.”

“You can’t have the plums and leave the duff”

The Communities Secretary was also accused of cherry-picking policy to support his decision to give consent. Mr Willers said Mr Javid had not taken account of the greenhouse gas emissions of methane produced during extended well tests. But he added:

“Perversely [the Secretary of State] took account of the benefits of commercial shale gas production – at scale or otherwise – by reference to the written ministerial statement. It doesn’t need a lawyer to understand the inequity of this approach.”

Mr Willers said:

“You can’t cherry pick the best bits of a legal judgement and leave inconvenient parts behind.

“You can’t have the plum and leave the duff”.

Planning practice guidance requires councils to decide exploration applications separately from those for production.

But Mr Willers said Cuadrilla’s application was “production in disguise” because gas would be produced during the extended flow tests carried out over three years. The gas produced is expected to be pumped directly into the grid and burned in homes and businesses.

Mr Willers said the environmental impact assessment on Cuadrilla’s application should have – but did not – take account of the greenhouse gas emissions of this gas production.

If it did not, he asked, how could the UK assess the volume of gas imports that shale gas would displace, as required by the Committee on Climate Change.

Mr Willers added that the European Court of Justice should rule on whether the Cuadrilla application and UK planning practice guidance had “offended” the EIA directive.

“A directive has been circumvented, and that failing in the system whether it resulted by mistake or by design needs to be addressed because otherwise what is going to go on at the site – whether ones calls it exploration or production – is going to result in significant greenhouse gas emissions arising from the three years of pumping the gas into the grid.”

Policy “misinterpreted and misapplied”

Earlier in today’s hearing, David Wolfe QC made the case for Preston New Road Action Group, the other party challenging the Secretary of State.

He said Mr Javid had misinterpreted or misapplied local and national planning policy in making his decision to grant planning permission.

Mr Javid had concluded that Cuadrilla’s plans complied with the Lancashire minerals policy and the National Planning Policy Framework.

But Mr Wolfe said the Secretary of State had misconstrued policy CS5 on sustainable minerals production and “failed to grapple” with the requirements of policy DM2 on protecting the environment and residents from harm.

Policy DM2 said proposals would be supported where environmental impacts causing demonstrable harm would be eliminated or reduced to acceptable levels. The policy also supported developments that made a positive contribution to the residential amenity of those living nearby

According to Mr Wolfe, the Communities Secretary had failed to give adequate reasons how this policy had been complied with

Preston New Road Action Group (PNRAG) also challenged Mr Javid over policy EP11 of the Fylde Local Plan. This policy, which deals with development in the countryside, had been cited by Lancashire County Council as a reason for refusal of planning permission in June 2015.

The council and Cuadrilla had agreed, in a statement of common ground, that this policy should be considered during the public inquiry. But Mr Wolfe said that after PNRAG had closed its case, Cuadrilla changed its position. Neither the company’s legal team nor the inspector pointed this out to PNRAG and the group did not have an opportunity to respond. Because of this, Mr Wolfe said the Secretary of State’s decision to grant planning consent was based on unfairness.

Secretary of State’s defence

In the final half hour of today’s hearing, Rupert Warren QC, for the Secretary of State, began defending his case.

Mr Warren said Mr Javid had correctly interpreted policy CS5. He said it was a strategic, rather than development management, policy and did not have tests that must be passed for a proposal to be accepted. He said policy DM2 did not say that there should be no harm to the landscape.

Mr Warren will continue his case tomorrow. The hearing is expected end on Friday.

Report from morning session, Day 1: Cuadrilla’s Lancs shale gas exploration plans were “production in disguise” – High Court told

Report from Day 2: Government lawyers defend decision to give planning consent to Cuadrilla fracking plans

44 replies »

  1. Mr Willers “The gas produced is expected to be pumped directly into the grid and burned in homes and businesses.”

    Anyone seen gas “pumped” before? Compressed yes, pumped a little difficult? Unless the gas is liquified first which it will not be.

    • Yes, it will need to be pumped, because the gas supply it will be joining will be at a certain pressure, so the gas joining it from the Cuadrilla supply will need to be ‘pumped in’ – basic engineering really

      • What kind of pump is used for natural gas (basic engineering really)? I am interested because in my industry experience it was a big no no to have any form of gas enter a pump (generally designed for fluids). Compressors are used to increase pressure of gas to match the delivery pressure and a pressure differential along the pipeline allows it to flow.

    • Regulation? What a load of nonsense.

      Self regulation. Passing the buck. Blind leading the blind. etc. etc.

      This is a communication between HSE and Cuadrilla some months after Preese Hall.

      ‘Cuadrilla were looking for some guidance on when a cement bond log was required and who was responsible for the interpretation of the logs. We advised that in a goal setting regime that it was the operator to establish the criterea for when they would run a CBL for surface,intermediate and production casings. The criteria should be documented and we could then inspect your operations against this standard. The interpretation of the logs would generally be done by the company running the tools but if there was any doubt in the interpretation then an independent competent person should be employed to give a view. This would also be in line with compliance with the requirements of the Cuadrilla well examination scheme.’

      • Unlike you I have run bond logs and was the most senior engineer in my company involved with that. The procedure there is one that would be considered normal.

        CBLs on surface casing are very unreliable. They are are not great or cut and dried on deeper casings. They are a rough and ready guide and very much open to discussion. Its a limitation of the technology and how they work. Centralisation is a key point.

        • CBLs in large diameter casing / holes are worthless. They are qualitative at best in small casings / holes and often very misleading. The more modern tools are a bit better but still not quantitative. The best methods for determining effectiveness of cement jobs is to design the job properly, simulate the job, undertake the job, compare with simulation, review any significant differences. The pump rates, pressures and returns provide the best indication plus the FIT / LOT after drilling out. This CBL to surface rubbish came from UKOOG falling over backwards to please people from DECC who didn’t know what they were talking about. So in a way, John P is correct……

      • The interpretation of well-casing cement bond logs is obviously an extremely specialist skill, requiring expertise gained from years of upstream hydrocarbon industry experience. Surely a highly trusted and completely independent expert like Mike Hill, who made a living from the industry would be ideally suited to performing this role should current industry contractors and HSE have doubts with individual interpretations of these complex geophysical surveys. Mike has made it known that he is an expert advisor to LCC, Government and the EU and advocated the application of CBLs for years and is known to have offered his professional services to Cuadrilla. This could only be a win win situation with Mike being able to reject completions or reassure the general public about the integrity and safety of the completed installations. Thank heavens someone like Mike is prepared to work in the best interest of all parties.

        • Ask Mike Hill about CBLs – if he thinks they are a good and valid tool for evaluating cement quantitatively behind larger diameter casing then he clearly has no experience with evaluating CBLs. The point I am trying to make with 30 years experience is that CBLs are not reliable tools, especially for larger casings. They are okay for finding the top of cement but not much else. USITs were better, perhaps there is something else now. The best method is a review of how the job goes. Trying to squeeze cement based on a CBL evaluation of poor / no cement fails nearly every time because there is good cement there. If he has the relevant experience he will know this only too well. On the flip side you can have a good CBL and poor cement.

          What did Mike Hill do in the industry (I honestly don’t know other than he may have worked for Schlumberger)? Why would Cuadrilla give him a job?

          • I have been involved twice trying to get my company out of trouble with squeeze jobs that didnt work, based on cement bond log data. Its a complex area and a CBL is only a guideline. There are so many issues, channelling/microannulus, etc and although it was a long time ago for me, my current contacts say its the same.
            Didnt Mike Hill did slick line? Thats not going to make you an expert on bond logs!

          • Thank you Paul and accept my apologies for being just a little bit too sarcastic regarding the opportunistic Janus Mr Hill. I share your mistrust in the evaluation of CBL jobs particularly with multi casings against moderately weak gypsiferous mudstone bedrock as at proposed Cuadrilla sites. Oh the sonic echos ringing in my head.

            Oh Ken no no no, Mike is an expert, definitely! He’s found that if he shouts it enough it makes him one.

            • Sorry I missed the sarcasm. I am too used to Mr Hill being held as the world’s leading expert in all things upstream O & G by the anti frackers. But I really do not know what his expertise was with Schlumberger – I have read slickline (Ken), electric line and seismic – was that CGG? Or was it VSP / checkshots? Probably a wireline engineer so will have run some CBLs but like most Schlumberger engineers, not interpreted them.

        • Yawn… Mike Hill an expert? Yawn again…
          In his own mind possibly. In any engineers terms, no way.

    • Ken Wilkinson wrote: “the Royal Academy of Engineering Report 2012 which made 10 recommendations. They are all in place, or continuously ongoing.”

      Either the 10 recommendations from the Royal Society and Royal Academy of Engineering review of 2012 are all in place, or if they are ‘continuously ongoing’, then they are not all in place.

  2. Same old same old Ken Wilkinson, cherrypicking an outdated (2012) report and ignoring the mounting mountain of evidence which doesn’t fit in with his pro-fracking stance. If the govt. weren’t handing over some of the monitoring to the industry itself, and the rest wasn’t under the supervision of the EA, who have an obvious conflict of interests since they have pension funds invested in Barclays, who in turn largely own fracking company Third Energy, I’d be more prepared to take Mr Wilson seriously.

    Well done Gayzer Frackman.

  3. Did Frackman’s learned counsel really summarise his argument by saying “What do we want? An EIA. When do we want it? Now”….just brilliant…let’s have him as the new Lord Chief Justice….judgement by placard, What next…..decree by Twitter….

  4. Ry-why not use facts, rather than the opposite. Third Energy are NOT a fracking company. They have been quietly extracting gas in Yorkshire for many years-NOT fracking at all. Now, with existing reserves running down they are seeking to examine a new technique (fracking) to see whether it will enable extension of the resources they already have in place.
    It is this repetition of inaccurate information that is doing your cause no good at all. The media have picked up on it already, and they will not lose their interest in it. The more you continue with that approach, the more damage you will do.

  5. So is Javid’s defense claiming the government is entitled to destroy the landscape and peoples’ lives whenever thet feel like it?

  6. If Cuadrilla’s site was an out of town Tesco, just think of all the pollution 24/7 with the locals driving their cars to fetch their shopping, the staff driving their cars to work, the delivery vehicles and the vehicles taking away the waste.

    Simples-let’s ban all supermarkets.

    • Also need to ban commuting to work by car…..although I expect the diehards have no work and have no car….

    • I have provided proof that the HSE are relying on the operator to set the standards for well integrity. The HSE will then check against that standard. Convenient for both operator and HSE.

      The comments from those who have had experience in CBL cleary shows integrity is problematic.

      The operator can choose what level of integrity is an acceptable standard. That is not ‘gold standard’ it is garbage.

      The industry has a vision of developing the largest gas field in the whole of Western Europe.

      That vision clearly includes the largest number of leaking wells in the whole of Western Europe.

      • John

        The DCR regulations, which are primarily goal setting, have been around since 1996. The move to goal setting regulations started in 1974 with the Health and Safety at Work Act. So it should be no surprise that the HS regulations, and in this case pertaining to well integrity, are goal setting. The proof in this case is a copy of the regulations.

        Having worked with the prescriptive regulation in force a the time in coal mining (Mines and Quarries Act 1954 and associated regulations), followed by the more goal setting requirements of the Offshore Safety Case Regulations 1994 and then associated regulations such as DCR and PFEER, I found the goal setting regulations were better than the prescriptive ones in improving Health and Safety.

        A good example, though not well related, would be the prescriptive SBV requirements replaced by the PFER reg 17, ‘good prospect of recovery’.

        Do you have a view on, and experience of, a regulatory model would be better for offshore and onshore UK well integrity?

      • Sorry John, there is no evidence that there are any issues in the regulatory system, except that the ‘independent well expert’ can be an employee of the drilling company.

        Its good that people with industry experience are posting. Comments by people like yourself have no real content as you appear to have no regulatory knowledge, a bias against a safe industry, and no understanding of the complex problems that engineers deal with every day.

        Leaking wells is a very minor issue. People will not have much evidence of the ‘largest gasfield in Europe’ except the great boost in the economy of the region.

        • ‘Its good that people with industry experience are posting. Comments by people like yourself have no real content as you appear to have no regulatory knowledge’

          It’s good that people with a basic understanding of the English language can read the letter between the HSE and Cuadrilla. They are now aware that the applicant sets the standard and the HSE check to that standard.

          People will rightly be concerned with these facts as, in case you forgot, Cuadrillas first small fracking operation didn’t go very well. Of course at that time they were in the dark had about cement bond logs. They also had not carried out a 3D survey before operations started. Worrying to say the least.

          The other good news is that this information has been shared with hundreds of groups across the country.

          When you combine the content of the communication between HSE and Cuadrilla with the content of the summary of the Preese Hall report your average reader will quickly surmise that allowing the operator to set the standard is definitely not a ‘Gold Standard’

          We have reports that state the production costs of UK shale would exceed the current market value.

          Where are the UK reports and source that show UK shale can be produced at a profit at today’s prices without using tax payers money to prop it up?

          • We read so much on these posts from the o&g industry that CO2 levels are falling and that is because of fracking taking over from coal.
            This report however gives a very different result.
            It would appear that CO2 levels are increasing global warming is accelerating, the oceans and the air is heating up, and the report says that is partly due to mans increasing industrialisation since the earlier peak due to the industrial revolution.
            Methane increase is registered also, and methane has a far greater effect, 80 times that of CO2 on greenhouse effects. It is known that the two gasses amongst many others that are produced by industrialisation, the chemical breakdown effects are little understood and long term effects are unclear.
            One thing is known, and that is that increased temperature in the oceans and poles will release enormous reservoirs of methane and that will lead to a rapid acceleration of the greenhouse effect to a point where the planets weather systems will flip drastically into a far more volatile system which could well spell disaster for the whole planetary ecological system.
            So why do we continue the insanity of producing more and more fossil fuels whilst simultaneously taxing renewables out of existence?
            Simple…Money…..short term profit and to hell with the future.
            Human beings call themselves intelligent, lately I see little or no evidence of that in our elected representatives. Actually, this present bunch are not elected, cuckoos more like. As for the o&g industry its full steam ahead into the ice field, after all, aren’t we unsinkable?
            It seems sanity only now remains in those who wish to preserve our ecology for our children and their children, and look how they are treated? Persecute the victims and protect the criminals, what a farce.

            Some day in the far distant future, whatever life that survived will be able to hop from very rich skull to very rich skull for miles and miles and miles, and perhaps wonder what happened to all that potential that was so easily thrown away.
            Maybe that future species will look back on humans as we do the dinosaurs and maybe think what the world would be like if we had survived, and then shudder, perhaps not, better that we did pass away, besides, there are billions more skulls to hop over yet.

  7. Interesting reading the above posts, what seems to be apparent, based upon what is said here, is that “cement jobs” meaning one assumes the vital seal between casings and the surrounding stata, are not reliable and nor is the testing of such cement jobs reliable sufficient or provable. Wasn’t that the cause of the DeepWater Horizon accident?
    What occurs to me from my far from expert knowledge of the process and its implications, much like almost everyone else on these pages, is that this disputed seal is the only thing that prevents leakage and flow back into the surrounding stata? That also applies, unless I misunderstand the convoluted terminology here, the aquifers at higher levels?
    So what appears to be being said here is that cementing is not reliable and that it is not definitively testable to be reliable one way or the other.
    The conclusion that can be drawn from that is inevitable, cement jobs are subject to failure and the testing procedure is unreliable as a guide to integrity one way or the other.
    Then what is protecting our aquifers?
    Judging by recent posts about slip shod practices, operationally doubtful planning regulations and approvals and the lesse fair attitude of the operators, I see no guaranteed protection or reliable assurance of present or future integrity of aquifers or indeed any sub strata in practice? We come back to the gold standard regulatory assurance here don’t we?
    It seems there are no assurances that are even possible to provide regulatory compliance, however little that may be?
    Perhaps this is the Achilles heel of the industry?

    • You should read the Deepwater Horizon report to see why the incident occured. There were several reasons which compunded the incident and cement on it’s own did not cause it. Cementing casing is reliable as thousands of wells have proven. If it were not there would be wells leaking oil all over the country – which there are not. The cementing design and execution needs to be fit for purpose and correct. What I am saying (and others who have worked in the industry) is that CBLs are not conclusive tools to confirm or not well integrity. However the job execution process and presuure testing are conclusive.

      The acquifers should be cased off and cemented with a separate casing and the annulus seal is tested with a FIT (formation integrity test) when the casing shoe has been drilled out. This test confirms (or not) that it is safe to drill the next hole section which may be an intermediate string or a production string depending on the geology and pressure gradient.

      You also need to consider that in shale wells which require artificial fracture stimulation to produce the risks are significantly lower because there is no natural permeability or reservoir drive in the reservoir. So when a shale well is drilled the only hydrocarbons which enter the well bore are from the volume of rock which is drilled by the drill bit. For a fluid to cross flow up a well from one formation to another there needs to be a pressure differential or there will not be any flow. How does this pressure differential arise in shale wells? Answer – it doesn’t. If there is flow back contamination it will be from surface spills.

      • This is the Deepwater Horizon final report and explains with illustrations what caused the eventual demise of the Deep Water Horizon oil rig and mentions the string of earlier accidents which seem to have had the same or similar cause.

        Click to access DHSGFinalReport-March2011-tag.pdf

        It makes interesting reading and for me at least, illustrates some of the terminology and processes involved and how the operation of the rig was inadequate to the point where 11 people died and enormous amounts of oil and gas entered the water. What isn’t detailed here is that the ‘clean up’ was equally disastrous and actually exacerbated the pollution problem, not only that BP owned the rights to the clean up chemicals and methods and hence made a killing that way.
        Worth a read if anyone has doubts about the terminology used and perhaps ask yourself if planning authorities are aware or not of the terminology, processes and implication? the link below details the amount of oil released and its consequences to wild life and the legal debacle that followed the accident, with not one person receiving jail sentences?

        This was of course an offshore deep water oil rig and the processes are scaled up considerably to the onshore version, though that in itself is not reassuring, since we are seeing regulations not being applied or enforced, operational and organizational hubris and ignorance, and worse, government complicity in mindlessly supporting the process which is being unconstitutionally enforced without the agreement of the people who will suffer for it. How long before the rush for gas sees similar shortcuts and cost cutting procedures leading to accidents? Where is the protection? Do we see one instance of regulatory presence let alone enforcement?

        That was 2010 and do we see any improvement in regulations and procedures to date with on shore oil and gas exploration?

        We are continually being told that no pollution results from the process, by which i mean all processes of the industry, and yet there are patently many hundreds of detailed examples of just that across the world, such as the Deep Water Horizon event and many previous events, a look up the internet reports and that will reveal a litany of accidents, cover ups, water air and land pollution, health and lives destroyed, and the industry hides behind its stranglehold on the governments, the media, the legal profession, the medical profession and the financial crushing of protest by non disclosure contracts and prevention of freedom of legal representation or appeal without costing a small fortune which simply means exclusion for anyone who does not have the resources of a multinational corporation.
        we will see what the present court case reveals about the effectiveness of legal application in this instance, then perhaps we shall see if that avenue is closed off as well.

          • You ignore everything else and only ask about the monetary cost?
            I wasn’t refering to the monetary costs but rather the human and animal lives and environment that were and are being destroyed by the event and later exacerbated by the disastrous clean up. BP had the only equipment and chemicals available to do that and hence simply charged themselves.


            The final cost to BP after writing off much of the fines to tax….Was $44.0 billion, the figure of $62.0 billion was a pre write off estimate.
            11 human deaths, countless animal and bird and fish deaths, humans suffered from the pollution after effects, many of them in the clean up operation, dolphins and whales still dying from the pollution and bungled clean up, some fish species are recovering numbers and naturally occurring bacteria is beginning to break down the oil residues.
            Yes nature recovers but at what cost? The wrong clean up chemicals sunk the resulting congealed oil goo out of sight but it wad observed in miles long sub surface plumes that covered the ocean floor poisoned cetaceans and fish and polluted the bottom feeding sea life which is a major part of the food chain basis for all life in the gulf.
            What is fascinating is a corporation that can afford to take a $62.0 or $44.0 billion hit and still no jail sentences for the 11 lives lost, no bankruptcy or curtailment of operations? Many countries could not survive that kind of hit! We see that corporations with that sort of clout can, and do run countries, perhaps an example of that is far closer than we think?
            Manslaughter? What about sea life and animal life slaughter? What about the gulf pollution and destruction? But of course the environment does not employ lawyers does it?
            That is why people protect and protest against the the environmental exploitation, because the environment cannot do so itself, so somebody had better do it.
            People ask, why doesn’t someone do something about it? The answer is simple, you are somebody.

            • If the US could have jailed someone from a British company for Macondo they would have done. They tried very hard but failed.

              From a technical standpoint Macondo is not relevant to a UK shale gas well.

              • Maybe they didnt try so hard, why? The working operators were mostly US citizens, what few UK staff were in charge were too clever to be implicated, they always blame the little guy, never the real culprits they would have vanished quicker than steel and human flesh can be vaporised.
                The Deepwater Horizon is very relevant, it shows what that efficient oil rig operation can go disastrously wrong, I don’t see anything in the UK onshore operations that tells me anything has improved. That, is relevant.

  8. Technicalities apart,- I can’t get my head round why the wishes of the local population and the Lancashire County Council can be overuled by some guy living ‘down south’ miles away from any potential fracking site?!

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