UK: UK Fracking: The Pursuit Of Safety

Last Updated: 19 February 2015
Article by Adam Brown

Further changes to the Infrastructure Bill have now addressed the potential problems for the UK unconventionals industry introduced by a Labour amendment two weeks ago, but the approach of Scottish and possibly Welsh Ministers is less encouraging for would-be shale developers.

Infrastructure Bill

At the last substantive debate on the Infrastructure Bill in the Commons, an amendment was inserted providing that "any hydraulic fracturing can not take place" unless 13 conditions are fulfilled.  As we pointed out in an earlier post, the drafting of this "safeguarding" provision (which can be seen here at amendment no.21) left considerable scope for doubt as to when some of these conditions would be satisfied.  Such uncertainty inevitably assists those who want to delay or obstruct fracking operations.

The House of Lords has now replaced the Commons' amendment with some much better drafted provisions (see amendment 21B here) that provide a clear and practicable route to satisfying each of the safeguarding requirements proposed by the Commons.  Although the Labour spokesman, Lord Tunnicliffe, raised a number of points of detail which he suggested had been lost in translation from the Commons' amendment to the Government's version (see column 1079 of the Hansard report), it seems possible that there will be no further changes when the Bill returns to the Commons for the next stage of the so-called ping-pong process.

In the meantime, here are ten points to note about the new clauses:

1      The new clauses insert two new sections (4A and 4B) into the Petroleum Act 1998, under which oil and gas exploration, production and development licences are granted.

2      The standard conditions of licences for onshore development (the model clauses) provide that the licensee may not commence drilling of any well or borehole without the Secretary of State's consent.  In future, any such "well consent" must contain a condition prohibiting fracking at a depth of less than 1000 metres and a condition requiring the licensee to have the Secretary of State's consent for any fracking at a depth of 1000 metres or more.

3      Under new section 4A, the Secretary of State may only issue a "hydraulic fracturing consent" if he is satisfied that 12 conditions are met.  These conditions reflect the Commons' 13 pre-conditions for permitting fracking, but they are expressed more clearly and 11 of them are accompanied by a description of the documents whose existence will be sufficient for the Secretary of State to be satisfied that the relevant condition is met – although the legislation explicitly states that he may also consider them to be satisfied without reference to such documents.

4      The 12th condition is "that a scheme is in place to provide financial or other benefit for the local area" – slightly wider than the equivalent Commons drafting.  The Commons' 13th condition was about not fracking at less than 1000 metres: this is subsumed into the well consent itself, rather than being a condition for issuing the hydraulic fracturing consent.

5      The new conditions avoid imposing the Commons' requirement to notify "residents in the area on an individual basis", substituting a requirement for the local planning authority to confirm that the applicant has self-certified its compliance with publicity requirements under the planning regime.  Baroness Verma, speaking for the Government, pointed out that it would be difficult for the Secretary of State to be satisfied that all residents had been individually notified.

6      The picture is not yet quite complete.  Draft regulations are to be laid before Parliament, by 31 July 2015, to clarify the burning issue of exactly which "protected groundwater source areas" and "other protected areas" will be off-limits to fracking.  Unless the current Government (or its successor) means to beat that deadline by a wide margin, it may be Autumn before these important details have been clarified and we know whether Greenpeace's analysis of the extent of the protected areas is unduly optimistic from an anti-fracking point of view.

7      Government has made a lot of statements and published guidance about the inter-relationship of the various different consenting regimes that apply to fracking, but new section 4A for the first time "joins the dots" between the different regimes in legislation.  So, for example, the condition on environmental impact assessment is linked to a notice from the local authority; the requirements about methane monitoring are linked to conditions in the environmental permit; and the requirement on well integrity is linked to an HSE certificate.

8      The decision to permit fracking in each case rests with the Secretary of State, but if everything is working as it should, he will issue the consent on the basis of work that is already required to be done under the existing planning and other regulatory regimes. Presumably for that reason, applications for hydraulic fracturing consents are not required to be published or consulted on.

9      A hydraulic fracturing consent may be issued subject to conditions.  Failure to comply with the conditions of a hydraulic fracturing consent, or with the prohibition on fracking at less than 1000m, could lead to revocation of the underlying licence.

10    Once the new sections are in force, the requirement to apply for and obtain a hydraulic fracturing consent before beginning to frack will apply whenever a licensee seeks a new well consent, regardless of when the licence under which the consent is sought was granted.

The provisions about hydraulic fracturing consents link to another change made to the text of the Bill as it left the Commons.  This relates to reporting by the Committee on Climate Change on the impact that greenhouse gas emissions from the use and extraction of gas from onshore sources may have on the UK's ability to meet its Climate Change Act emissions reduction targets.  When such reports are produced (on 1 April 2016 and every 5 years thereafter), the Secretary of State will be obliged either to legislate to terminate the right of use of deep level land for petroleum and deep geothermal exploitation or to produce a report explaining why he has not done so.  But if the right of use is terminated, it will only be removed in respect of projects that have not already made use of that right.

Scotland and Wales

While for the Coalition Government in Westminster, a safety-first approach to fracking may be achievable simply by means of some deft legislative drafting, the politics in Edinburgh and Cardiff are different.  Both Scottish and Welsh Ministers have recently taken a less positive stance on fracking.

The negative noises from Ministers in the devolved governments come in the context of debates about further devolution of energy-related powers and against the background of the awkward split between the oil and gas licensing regime (currently administered by the Secretary of State for all of Great Britain, but a potential candidate for further devolution, particularly in Scotland)  and the planning regime (where Welsh and Scottish Ministers are, or can be, the ultimate decision-makers).  Any unconventional development will need both a Petroleum Act licence and planning permission.

On 28 January 2015, Fergus Ewing, the Scottish Energy Minister, announced that the Scottish Government's "cautious, evidence-based approach" to fracking and its desire to hear "the voices of the communities...likely to be most affected...in a formal and structured way" meant that "it would be inappropriate to allow any planning consents in the meantime" and he announced " a moratorium on the granting of planning consents to unconventional oil and gas developments...until such time as the work I have referred to has been completed".  Scottish Ministers have also directed the Scottish Environment Protection Agency not to issue any "controlled activity regulation licences" during the moratorium (see page 17 of the report here for the full debate).

On 4 February 2015, there was a vote in the National Assembly for Wales in favour of both the devolution of energy consents and a fracking moratorium.  Discussion of fracking, ranging as far afield as New York and New South Wales, dominated the debate: the party lines on the subject in Cardiff are not the same as those in Westminster.

It seems that Welsh and Scottish Governments have made the political calculation that it is best to let England lead the way in building the UK evidence base on fracking.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
21 Sep 2017, Seminar, London, UK

Is there such a thing as "energy law"? What do "energy lawyers" do? And why should it be of interest to anyone else?

28 Sep 2017, Seminar, London, UK

On 26 July the FCA published its long-expected consultation paper on the extension of the SMCR to all FCA-authorised firms. The so-called "core regime" introduces the key concepts of regulator-approved senior managers, firm-approved certification staff and conduct rules applicable to virtually all staff.

3 Oct 2017, Conference, Zurich, Switzerland

As the founding Partner of the Europe-Iran Forum, Dentons Europe will once again support this year’s event. This compelling event which explores all Iran-related topics will take place in Zürich on 3rd and 4th October.

 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.