Fracking: The events so far...
The use of the drilling technique known as hydraulic fracturing (colloquially known as fracking) as part of onshore unconventional gas exploration has begun again in England for the first time in seven years.
The process, which involves pumping water, sand and drilling fluids at high pressure into a target shale play deep underground to create and keep open narrow fissures (typically hairline in width) from which gas is then released into the wellbore and captured at the surface, is currently prohibited in Scotland and Wales. However, despite vigorous opposition from environmental groups, which has involved several unsuccessful Court challenges, neither the energy exploration companies nor the UK Government at the moment show any sign of giving in to the objectors' demand that the controversial process should also be banned in England.
The UK currently produces 44% of its gas needs from the North Sea and East Irish Sea. It imports 47% of the gas it uses from Europe and Norway with the remaining 9% being imported by tanker in the form of liquefied natural gas. The British Geographical Survey estimates that trillions of cubic feet of shale gas may be recoverable from beneath certain parts of the UK. As a result of these findings energy companies applied to the UK Government in the 13th Onshore Licensing Round held in 2008 to explore for the first time for shale gas. However, since then, despite the industry's best efforts, only one shale gas well has been fracked in the UK (Cuadrilla's Preese Hall 1 well near Blackpool), a test that had to be suspended before completion of the fracturing programme after two small induced earthquakes were recorded. This led to a yearlong moratorium being imposed on onshore fracking operations until a method to control seismic activity through the use of a real time "traffic light system" was introduced.
Fracking in practice
The planning history at the Preece Hall site demonstrates the regulatory hurdles faced by the industry. Cuadrilla were initially refused planning permission by Lancashire County Council in June 2015 but that decision was overturned over a year later on appeal. Although the Secretary of State for Communities and Local Government granted Cuadrilla planning permission in October 2016, the discharge of the last of pre-commencement conditions which he had attached to his decision letter was only finally obtained from the local planning authority in January 2018.
That, however, was not the end of Cuadrilla's legal problems. On 5 October 2018 a local resident was granted a last minute interim injunction on the grounds that the local Council had allegedly failed to put in place an emergency contingency plan for the area. Following legal debate, this argument was subsequently rejected by the High Court thereby allowing Cuadrilla to finally begin drilling at Preston New Road on 15 October 2018.
This site is currently the only one in the UK that is authorised to frack.
Public nuisance or peaceful protesting?
Following the grant of a High Court injunction prohibiting objectors from unlawfully obstructing Cuadrilla's shale gas site and the sites of their suppliers, objectors have sought to disrupt operations from further afield.
In September 2018 these "off-site" tactics led to three anti-fracking protestors being jailed for causing a public nuisance after they took part in a four-day "lorry surfing" protest near to Cuadrilla's Preston New Road site. It is believed that this is the first time in England that public nuisance as a crime at common law has been used to deter environmental protest. The campaigners, having been initially jailed for between 15 and 16 months, were subsequently released six weeks later after their sentences were quashed by the Court of Appeal on the ground that they were "manifestly excessive".
The future of fracking
In a Written Ministerial Statement issued in May 2018 the Business and Energy Secretary reminded local planning authorities that shale gas development is of "national importance" and that the UK Government expected them when determining applications for planning permission to give great weight to the benefits of mineral extraction, including to the economy. Promising results from Cuadrilla's appraisal borehole in Lancashire early this year provided the industry with a glimmer of hope. The data indicated that there was a significant reserve of gas held in the target shale rock.
Since then, however, the industry has faced a series of significant set backs.
In March anti-fracking campaigners successfully challenged the provisions in the section of the UK Government's revised National Planning Policy Framework dealing with onshore shale gas development on the grounds that the government had failed to take proper account of certain scientific information on low carbon claims as part of the review public consultation.
Then, in another blow to the industry, the UK Government's shale gas commissioner, Natasha Engel resigned in April citing her frustration at what she described as the "ridiculous" seismic limitation regulations that in her view were causing the nascent onshore shale gas industry to "wither on the vine.
With political support at Westminster continuing to be on the wane in the face of the climate change debate, it remains to be seen whether the industry's appetite to invest in onshore shale gas development will continue to hold firm the face of such growing opposition. But as one commentator recently remarked, "All it might take to turn public opinion around would be a gas supply deficit in the face of a harsh winter leading to factory closures. Time will tell".
Given the close interaction between the law and politics in this sector, the future of the fracking industry in the UK remains an interesting area to watch.
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