It has for some time been the policy of the United Kingdom Government to facilitate operations to explore for and exploit shale gas by means of hydraulic fracturing, or 'fracking'. Just before the recent General Election, Royal Assent was given to the Infrastructure Act 2015 which contains significant provisions for the benefit of those proposing such operations. However, it also contains significant safeguards for landowners and the environment.
In particular, the Act contains provisions conferring a new right of access to deep-level land (land below 300 metres from the surface) for onshore petroleum operations. This right of access will also benefit conventional oil and gas operations and geothermal energy projects.
The rights of access will be subject to a scheme for payments by the industry, and the requirement for prior notification of landowners. Landowners will also be protected from liability for legal proceedings in respect of loss or damage to third parties arising from the actual or proposed exercise of the new access rights, so third parties will only be able to sue the operator in respect of such loss or damage.
The Infrastructure Act also empowers the Government to request the Committee on Climate Change to advise it on the likely impact of inshore petroleum activities on the carbon budgets established under the Climate Change Act, so as to enable it to monitor any likely increase in greenhouse gas emissions resulting from the increased use of shale gas or other petroleum.
The Act further amends the Petroleum Act 1998 to make any actual fracking operations which exceed certain thresholds subject to a consent regime, and will effectively prohibit them at a depth of less than 1,000 metres. There will also be conditions relation to the protection of certain areas of environmental value, such as national parks, and groundwater source protection zones.
During the passage of the Bill in Parliament, it incurred considerable opposition and attempts at amendment by MPs and peers concerned at the potential environmental impacts of fracking operations, partly on the basis of some US experience.
However, even before the enactment of the 2015 Act, any operations for fracking in this country would be subject to a very stringent set of regulatory controls, quite different from those which may have applied in certain parts of the United States.
Apart from the need for the petroleum licence from DECC, and planning permission from the minerals planning authority (which would involve consideration of land-use issues and associated topics such as traffic movements), any onshore petroleum operation would be subject, in England, to the jurisdiction of the Environment Agency. The Agency would ensure that all the requirements of the EU and national environmental legislation are met, in relation to such issues as water abstraction, boring and drilling operations, groundwater protection, waste management and disposal, and naturally occurring radioactive material removed from strata. Operations would be subject additionally to the jurisdiction of the HSE, not only in respect of health and safety issues but also in respect of wellhead integrity ( a role which falls to the HSE because of its North Sea experience).
Under the well operations and notification system, controls in respect of seismicity monitoring would be imposed by DECC.
This complex system of regulation appears cumbersome and unapproachable to many operators, and an industry-funded task force on shale gas has recently published an interim report proposing a new 'one stop shop' regulator to act in the place of the Environment Agency, HSE and DECC. It currently seems unlikely that the Government will agree to this, but the need might become more pressing if there were to be a substantial future increase in applications for consents. Complex or not, however, the system should address all genuine environmental concerns over fracking.
In that connection, it may be of interest to note that in respect of one environmental concern at least, impact on drinking water, a recent report from the US Environmental Protection Agency has concluded that there was little evidence of any significant impact from fracking operations on drinking water resources in the United States.
It may also be worthy of note that onshore petroleum operations have for a long time been carried on in England, in highly sensitive environmental areas, without significant adverse environmental effects, notably at Wytch Farm in Dorset. Operations have included activities quite similar to 'fracking', to achieve 'enhanced permeability' during the end-stage of petroleum recovery operations.
As is often the case where industrial activities are proposed in rural locations, environmental concerns are often used as a mask for other concerns, economic and sociological. Arguably it is the motive force of these concerns, as much as strictly environmental issues, which have led to the current moratorium on fracking operations in both Scotland and Wales.
Owing to these concerns, which are particularly likely to exercise minerals planning authorities, progress in the planning applications currently in the pipeline in Northern England is likely to be slow. However, those whose concerns are purely for the environment should be able to take considerable comfort in the regulatory controls which will be applied.