Step by Step Community Guide to Fracking - UCL Legal Action and Research for Communities Scheme and living space project
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Step by Step Community Guide
to Fracking
UCL Legal Action and Research for Communities Scheme
and living space project
12
Content
Planning and permitting procedures 4-6
Opportunities for community intervention and participation 6-11
Other legal action: using nuisance law to limit the negative 10
impacts of fracking
Other methods: 11
Further sources 12-13
3Community Guide to Fracking
Hydraulic fracturing or fracking involves extracting natural gas from shale (fine grained
sand made up of mud that is a mix of flakes of clay minerals and tiny fragments of other
minerals). The process involves drilling down to the shale layers in the earth. A mixture of
water, sand and chemicals is then injected at high pressure into the shale rock to create
fissures. The sand helps keep these fissures open whilst the gas is released from the rock
and into the well.
At the exploration phase, this process of fracking is for a short period and gas collected
is likely to be flared. The purpose of fracking at this stage is to ascertain how much gas is
present in the rock.
This guide outlines the legal procedures involved in fracking, and details the
opportunities for communities to intervene, challenge applications, and participate
in the licensing and decision making processes.
1. Planning and permitting procedures
Licences granting exclusive rights to oil and gas operators in a given area are issued by the
Department of Energy and Climate Change (DECC). Operators must also get the necessary
consents and planning permission before beginning any activities in an area.
When an operator wants to drill an exploration well, the procedure is as follows: 1
1. The company begins by obtaining permission from the landowner by negotiating
access for the drilling area and the surface under which any drilling extends.
2. The next step is to seek planning permission from the Minerals Planning Authority
(in Scotland, the planning authorities), which in most cases is the local County Council.
This falls under the Town and Country Planning Act 1990. This Act aims to ensure that
the operation does not have an unacceptable adverse impact on the natural or historical
environment or human health. The MPA will decide whether or not an Environmental
Impact Assessment (EIA) is required. This decision is made on a case-by-case basis,
1. These steps are outlined in detail in DECC’s Fracking UK Shale: Regulation and Monitoring (2014), which leads to a ‘regulatory roadmap’ at:
https://www.gov.uk/government/publications/regulatory-roadmap-onshore-oil-and-gas-exploration-in-the-uk-regulation-and-best-practice
4Community Guide to Fracking
depending on the likely significant environmental effects of the operation. The EIA is
submitted by the operator to the MPA which will be making a decision about whether to
grant planning permission.
3. A permit to carry out exploration is required from the Environment Agency. The EA
address the environmental concerns on a site-by-site basis and issues a permit if required
under the Environmental Permitting Regulations 2010. A permit is required where fluids
containing pollutants are injected into rock formations that contain groundwater. The
company must specify the type and concentration of these pollutants in its application to
the Agency.
4. Further permits may also be required from the Environment Agency if the activity
poses a risk of ‘mobilising natural substances that could then cause pollution’. The permit
will identify necessary limits on the activity such as requirements for monitoring and
restrictions on the chemicals used. It should not be granted where the activity poses an
unacceptable risk to the environment.
5. The company must notify the Environment Agency of its intention to drill under
s.199 of the Water Resources Act 1991.
6. The Health and Safety Executive (HSE) needs to approve the design of the proposed
well. These are further regulations for safety of the site and the workers.
7. DECC will check with the Environment Agency and HSE if they have objections to
drilling.
These planning and environmental permitting steps are for the exploration stage of
fracking, including initial drilling to see if the site is viable for gas production.
These steps must be repeated at each exploratory stage of the site’s development, to drill
any further wells and before the site goes into production.
Other permits will be required in this second stage of the process including a permit from
the Environment Agency for water abstraction by the operators and for the disposal of
waste water.
5Community Guide to Fracking
2. Opportunities for community intervention and
participation
The SEA Directive 2001/42/ EC requires an effects. When a plan or programme has
environmental assessment to be carried been prepared, it is made available for
out for ‘plans and programmes’ which are consultation, which includes participation
likely to have significant environmental of those people who are affected or likely
effects. This legislation is implemented in to be affected by, or have an interest in the
the UK through the UK’s Environmental decisions (“public consultees”) involved
Assessment of Plans and Programmes in the assessment and adoption of the
Regulations 2004. 2 The SEA is undertaken plan or programme (under Regulation
by a public body, in this context by 13). Overall, the plan/programme and the
DECC, before it grants a license in a results of the consultations are considered
licensing round. Regulation 5 requires an before they are adopted. Therefore,
environmental assessment where a plan this provides an opportunity to express
or programme is likely to have ‘significant opinions and influence decisions about
environmental effects’. Under Reg. 11 of the extent and location of fracking activity
the 2004 Regulations, the responsible in a more general manner than is the case
authority has 28 days to bring to the with individual applications for fracking
attention of the public whether it has exploration and production at a particular
determined the plan or programme is or is site – which is the subject of Environmental
not likely to have significant environment Impact Assessment (of projects).
2. http://www.legislation.gov.uk/uksi/2004/1633/contents/made
6Community Guide to Fracking
Environmental Impact Assessment (EIA)
An EIA is an assessment of the possible The purpose of the EIA is to consider the
impacts that a proposed project might environmental implications of projects
have on the environment. The public have in deciding planning applications. An EIA
rights of participation in the environmental is not mandatory for fracking activity, so
assessment process. whether an EIA is carried out is decided by
the planning authority using thresholds.
An EIA is required under EU Directive These thresholds mean that an EIA is more
2011/92/EU which has been transposed likely to be undertaken for a project in an
in UK legislation through the Town environmentally sensitive area such as a
and Country Planning (Environmental national park.
Impact Assessment) Regulations 2011.
The most recent government guidance on environmental assessment of fracking states
the following:
“52. The minerals planning authority should carry out a screening exercise to determine
whether any proposal for onshore oil and gas extraction requires an Environmental
Impact Assessment…
53. Applications for the exploratory and appraisal phases will fall under Schedule 2 to the
Town and Country planning (Environmental Impact Assessment) Regulations 2011 if they
exceed the applicable threshold or any part of the development is to be carried out in a
sensitive area. An Environmental Impact Assessment is only required if the project is likely
to have significant environmental effects.”
7Community Guide to Fracking
Environmental Impact Assessment (EIA)...
(Department for Communities and Local exceeds 500,000 cubic metres per day.
Government, Planning Practice Guidance
for Onshore Oil and Gas (July, 2013)) This means that the current government
guidance does not strictly breach the
This guidance sets out that fracking Aarhus Convention since the amount of gas
activities will only require an EIA where extracted at the exploration phase through
significant environmental effects are likely. fracking is very unlikely to reach 500,000
Otherwise, such activities can proceed cubic metres per day. If the activity is
without an EIA. likely to have a significant effect on the
environment, the guidance provides that an
Whether the activity has significant EIA will be undertaken. This means that the
environmental effects is determined by government’s guidance, requiring no EIA
Schedule 3 of the Town and Country unless significant environmental impacts
Planning Regulations 2011. This sets out are likely, complies with the Convention.
criteria to consider, such as the location, However, the European Parliament has
size, pollution and waste produced by recently agreed to amend its latest EIA
the activity, and the probability of certain Directive (2011/92/EU) to require shale
impacts occurring. oil and gas operators to carry out an EIA
for every site, regardless of size. This will
In making this judgment about likely impose a stricter burden on the UK than
significant environmental effects, Article 6 that set out in the Aarhus Convention
of the Aarhus Convention (which provides (which was intended as a minimum
an international standard for public standard). When these proposals come into
participation in the decision-making force, the current government guidance
process) is relevant. will clearly be in breach of these new
requirements.
Annex I of the Convention sets out that
the public participation rights must be If an EIA is required, the developer will
complied with in cases of natural gas submit an environmental statement to the
extraction where the amount extracted planning authority. This statement details
8Community Guide to Fracking
Environmental Impact Assessment (EIA)...
at least the main environmental impacts of a right granted under the Environment
the project and any mitigating measures to Information Regulations 2004. It is not
reduce the significance of those impacts. unusual for the quality of an ES to be poor
The environmental statement will be so it is vital that the local community and
available to the public, a right conferred campaigning groups ask critical questions
under Regulation 40, but usually with an of the applicant/operator and local
expensive fee. However, this can be reduced authority planners.
by appealing to local MPs or obtaining a
copy at the price of photocopying the EIA,
Permitting and Monitoring
Permitting process: The permitting fracking which the EA has to consider.
process offers the public opportunities
to be consulted and participate in Monitoring where a permit has
decision making and enforcement. When been granted: if there is a concern
the Environment Agency receives an about whether the conditions of the
application for a permit it will place it on a environmental permit are being met, then
pubic register and publicise the application contact the EA. 3 This is reinforced by the
on the EA website in order to elicit Environmental Permitting (England and
comments about the application. Wales) Regulations 2010. 4 Regulation 38
describes offences which the company
If there is significant public interest, further can commit such as failing to comply with
measures are adopted such as advertising or contravening an environmental permit
the application and conducting a second condition, operating without a permit and
round of public consultation on any providing misleading information when
draft decision to issue a permit. These obtaining an environmental permit. The
consultations provide forums for the penalties in Regulation 39 specify a fine or
community to resists proposals to carry out imprisonment.
3. “Please call our National Customer Contact Centre on 08708 506506 if you are concerned whether the conditions of our environmental permit are being met at a particular site”.
4. http://www.legislation.gov.uk/ukdsi/2010/9780111491423/contents
9Community Guide to Fracking
Other legal action: using nuisance law to limit
the negative impacts of fracking
Private nuisance: Potentially, the law Public Nuisance: If fracking causes a
of nuisance can be used to limit the nuisance to a community, it may be more
harmful activities of fracking, although suitable to bring an action in public
there is currently a lack of case law on this nuisance, in cases in which it has led to a
subject. Private nuisance applies if the material loss or an adverse impact on the
property is neighbouring the fracking site. reasonable comfort and convenience of life.
There must be a continuous interference, It must be shown that a substantial class
interference of the use or enjoyment of of people are affected by the nuisance. In
land or some right over it and an unlawful/ one case, pre-dating fracking, dust and
unreasonable interference. 5 The courts vibrations from a quarry were considered
will look at a number of factors in reaching a nuisance and an injunction was
the unreasonableness of interference. granted. 6 Alternatively, the local authority
However, the court will also consider can be urged to bring an action under a
whether the activity is economically Statutory Provision nuisance. The impact
important. An injunction is a possible of the activity must constitute a nuisance
remedy which the courts may grant in an or be prejudicial to health. An injunction
action for private nuisance. is also available as a remedy in a case of
public nuisance. It is important to keep
a log book to document any changes in
the surroundings, such as water quality,
pollution and impacts upon health.
5. http://www.lawteacher.net/tort-law/lecture-notes/nuisance-lecture.php
6. Attorney General v PYA Quarries [1957] 1 All ER 894.
10Community Guide to Fracking
Other methods:
• Lobby local politicians: Case studies in France 7 and Bulgaria 8 show the importance of
local campaigning due to the pressure it creates on government to respond to public
opinion.
7. http://www.bloomberg.com/news/2013-01-23/u-k-explorer-shows-french-fracking-ban-stalls-conventional-oil.html
8. http://www.bbc.co.uk/news/world-europe-16626580
11Community Guide to Fracking 3. Further sources Details of the Environment Agency’s procedures and considerations when receiving applications for permits, specifically on public consultation: http://www.environment-agency.gov.uk/static/documents/Business/Working_together_ PPS_v2.0.pdf Mapping data illustrating current licenses and the licenses granted in the 13th Round: https://www.gov.uk/oil-and-gas-onshore-maps-and-gis-shapefiles The Department of Energy & Climate Change website lists useful documents, in particular, documents listed under ‘Onshore Reports’ which details Reports by the House of Commons DECC Select Committee on Shale Gas covering issues such as regulation and environmental issues: https://www.gov.uk/oil-and-gas-onshore-exploration-and-production The Environment Agency webpage on Minimising Environmental Risk through Regulation: http://www.environment-agency.gov.uk/business/topics/133885.aspx and its Guidance note for Exploratory Shale Gas Operations: http://a0768b4a8a31e106d8b0-50dc802554eb38a24458b98ff72d550b.r19.cf3.rackcdn. com/LIT_7284_231c35.pdf A guidance note providing more details on an Environmental Impact Assessment supplied by Surry County Council: http://www.surreycc.gov.uk/__data/assets/file/0011/261776/Guidance-Note-1-EIA- Screening-and-Scoping-_Jan-2012_.pdf Friends of the Earth, Environmental Impact Assessment: A Campaigner’s Guide (FoE, 2005) provides useful advice on judging and challenging environmental statements in the environmental assessment process: http://www.foe.co.uk/sites/default/files/downloads/environmental_impact_asses1.pdf 12
Community Guide to Fracking
Further sources...
A video by Susan Watt (a Newsnight report) on ‘Fracking: Concerns over Gas extraction
regulations’:
http://www.bbc.co.uk/news/uk-17448428
Frack Off! Energy Action Network, a website to fight against fracking, which provides the
latest developments:
http://frack-off.org.uk/
and
FRAW (Free Range Activism Website) lists further information for research:
http://www.fraw.org.uk/publications/a-series/a01/index.shtml
There is currently a petition to stop fracking by creating a campaign on a website called
‘38 degrees’ via:
http://you.38degrees.org.uk/petitions/stop-the-shale-gas-extraction-by-
fracking?time=1355956091.
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ISBN 978-0-9560360-9-4 16
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