Fracking around with the law

The trial of 3 people accused of disrupting “lawful activity” at a Cuadrilla Resources fracking site in Lancashire last November has raised a number of interesting issues regarding the legality of the exploration for unconventional gas in the UK. Regardless of the verdict on Tuesday it is likely that these issues are not going to go away any time soon. It seems clear that the government has no intention of interfering in the ability of companies like Cuadrilla to profit from extracting fossil fuels and then swanning off and leaving local people to deal with the horrendous mess that will be left behind.

There are many sources of information on these impacts, both local and global (catastrophic climate change), but here we will examine the legal issues that have arisen from the trial. Whether you believe that the law is the word of god, handed down on stone tablets, or a load of arbitrary rules drawn up by a bunch of greedy, self-interested plutocrats, an examination of how closely (or not) authorities are sticking to the law in their “regulation” of these activities provides an insight into how this process will play out if it is allowed to continue unchecked. There are a variety of different areas where there are issues with the legality of fracking.

Licencing

In the UK mineral rights, with the exception of some granted under archaic manorial law, are the property of the crown. For onshore oil and gas extraction in the UK a Petroleum Exploration and Development Licence (PEDL) is needed which is issued by the Department of Energy and Climate Change. This licence grants permission to ‘search, bore for and get’ oil and gas within a certain area. These licences are issued under the Petroleum Act 1998 but the same wording is used as far back as the Petroleum (Production) Act 1934. This raises the interesting question of where massive slickwater hydraulic fracturing comes in. This process was unknown to the UK in 1998 and had not been invented in 1934, so it seems clear that these acts are really only intended to allow searching for petroleum (e.g. seismic survey etc.), boring for it (i.e. drilling wells) and getting petroleum out of those wells.

Test site where Project Gasbuggy used a 29 kiloton nuclear bomb to fracture shale rock in 1967

An example used in the trial was that using a nuclear bomb to fracture shale rock to extract gas, as was done a couple of times (i.e. Project Gasbuggy and Project Rulison) in the late 1960s as part of Operation Plowshare in the United States. It seems clear that putting a nuclear bomb down a well and exploding it goes well beyond the permission to ‘bore for’ petroleum conferred by the license. It is also clear that from the fact that you need an extra license to even operate seismic survey equipment (a process similar to ultrasound or sonar) slightly over the border of a license area that no one has any right to do anything relating to minerals extraction except for that explicitly granted by a licence. It is notable that the consent to drill application form (PON 4), that is required before drilling commences and is the only consent needed until either a consent to abandon the well is sought (PON 5) or the well starts producing petroleum (in which case a PON 7 notice must be submitted), requires simple information about the well to be drilled and does not mention any other activities other than drilling the well.

It is a fact that activities other than simply drilling a wellbore have been been routinely undertaken for a long time. Various activities within the wellbore, such as casing the well or acid treatments to remove material blocking pores in the surface of the rock, would arguably fall within ‘bore for’. It is debatable however whether activities which stray outside that wellbore would fall within that definition. The most common of these activities is hydraulic fracturing. Hydraulic fracturing of conventional wells appears to have been occasionally used in the UK since the 1970s. This involves relatively small amounts (thousands to tens of thousands of gallons) of fluid (usually gel or foam) to crack the rock for a small distance around the wellbore. Depending on how strictly you are interpreting ‘bore for’ this might or might not be permissible. In any event it has sneaked into at least occasional use over the last few decades and is obviously assumed to be permitted by these licences.

Enter massive slickwater hydraulic fracturing, which has so far only been (partially) completed at one well (Preese Hall-1) in the UK, resulting in a number of earthquakes. This involves hundreds or thousands of times as much fluid (millions of gallons of slickwater, which is a cocktail of water, sand and chemicals) pumped in at much higher pressures (sometimes over 10,000 pounds per square inch) to crack the rock for hundreds or thousands of feet around the well. The energy involved can approach that of the nuclear bombs used in Operation Plowshare, with tens of thousands of horsepower of pumps used for long periods time to force in the fluid. The record known frack job, in Canada, involved 417 million gallons of fluid which at a pressure of 10,000 psi would translate into an energy equivalent to about 40 kilotons of TNT. There must be a point at which the scale of an activity makes it incompatible with being just an incidental part of the drilling activity and massive slickwater hydraulic fracturing is clearly well past that point.

In fact DECC are implicitly admitting this separation between drilling and fracking by asking Cuadrilla to stop fracking while studies are carried out but allowing them to continue drilling at Banks. Note the use of the word asking here, which is all they can do since as there is no explicit consent for fracking operations they cannot withdraw it. They could potentially withdraw Cuadrilla’s consent to drill, which is what DECC and Cuadrilla are assuming gives them the implicit permission to frack, but that would stop Cuadrilla from doing anything which is not what either of them want. The assumption that this new and massively more intense process is covered under the licence to ‘bore for’ petroleum seems a huge stretch, and in fact massive slickwater hydraulic fracturing may be illegal. Clearly this state of affairs has come about through the fact that the technology has massively changed and the regulations have not kept up. It is also clear that bringing the law up to date with the technology (through new legislation) is not something DECC would want to try since it would expose the whole process to the public scrutiny they are trying desperately to avoid.

Another issue with licencing is that DECC issues licences for onshore exploration approximately every 4 years in licencing rounds where different companies can apply for licences for particular areas of the country. As a result of European Directive 2001/42/EC on the “Assessment of the Effects of Certain Plans and Programmes on the Environment” DECC are obliged to conduct a Strategic Environmental Assessment before they undertake one of these licencing rounds. No Strategic Environmental Assessment seems to be available for the 13th (last) round where Cuadrilla licence was granted but one has been published in preparation for the upcoming 14th round which is likely to begin later in the year. The only mention of the effects of shale gas extraction is one sentence: “Besides the use of larger quantities of water than other methods of gas extraction, the production and environmental management methods required to provide suitable environmental protection with regard to this activity are well established (i.e. are techniques already used to stimulate production in conventional gas development).”

It seems somewhat unlikely (though not beyond the bounds of possibility given the performance on the witness stand of Michael Hawkins, Head of Licence Administration at DECC) that DECC does not understand that massive slickwater hydraulic fracturing is radically different from the extremely limited fracking of conventional wells that has been performed so far in the UK. Similarly there is no mention of the vast difference in terms of the numbers and densities of wells drilled between conventional and unconventional gas development. It seems impossible that this one sentence could constitute an environmental assessment of unconventional gas development under the directive. If no real assessment has been performed then whole process of licensing of areas for unconventional gas development may well be illegal.

Finally it is notable that the only person who has any constraints placed on them as a result of the Climate Change Act 2008 is the Secretary of State in charge of DECC, who is the same person who is responsible for issuing these licences. The act states that there is a  “duty of the Secretary of State to ensure that the net UK carbon account for the year 2050 is at least 80% lower than the 1990 baseline”. This raises the interesting question of the legality of the granting new licences at all, and certainly those for unconventional fossil fuels. Globally “less than half the proven economically recoverable oil, gas and coal reserves can still be emitted up to 2050” without guaranteeing a temperature rise of more than 2 degrees Celsius. While little UK specific research has been done in this area it seems likely that a similar fraction would apply for the UK and therefore licencing exploration for any more conventional fossil fuels, let alone unconventional ones, would seem to be breaching the duty placed upon the Secretary of State under the act, potentially also making the whole process illegal.

Planning

The next stage after obtaining a licence is to obtain planning permission for the individual exploration sites. This is a minerals and waste matter and therefore in most cases (except in metropolitan areas) falls within the remit of the county council under the Town and County Planning Act 1990. One planning issue with the Cuadrilla sites in Lancashire is the almost total lack of any mention of the massive slickwater hydraulic fracturing process that they wish to carry out. In a ‘Testing Procedure’ section of Appendix C of the Banks application it mentions that “there may be a need to stimulate a stage that flows gas” and then goes on to talk about “pumping water under pressure into the natural fractures in the shale formation”. However in the previous paragraph they explicitly compare the planned activities to the nearby conventional well at Elswick where no massive slickwater hydraulic fracturing was performed, a deceptive comparison which is often trotted out in publicity. There is no mention of the scale or intensity of the process (millions of gallons of water under massive pressures) and in fact the application goes to great lengths to downplay this stating that the “simulation required will be none or small and therefore the number of water and sand deliveries required are expected to be few”. There is at least a case to be made that they have not described massive slickwater hydraulic fracturing in the application and therefore doing it would be a breach of planning control which while not usually a criminal offence is unlawful.

Banks site in Lancashire owned by Cuadrilla Resources where fracking seems likely to start soon

Another planning issue with the sites is that in no case was an Environmental Impact Assessment performed. While this may not be required in all cases if the site is temporary and less than a hectare in size (for this reason Cuadrilla make all their sites 0.99 hectares) it could be argued that the county council should have demanded one given the nature of the activity that was intended. The rules around EIAs are quite complex and the legality of the failure to carry out such an assessment in these cases is certainly a grey area at present. It does clearly demonstrate the level of care (or lack thereof) that is being taken in deciding these planning issues. It is also of note that the same misrepresentations about the nature of the intended fracking operations is made in the letter from Cuadrilla asking to be exempt from a Environmental Impact Assessment where they state: “The whole operation will be similar to that carried out at the Elswick gas to electric generating site.” 

Permits

When considering unconventional gas development in the UK the Environment Agency is almost totally absent. One might think that they would be taking a lead role in regulating a process that involves pumping millions of gallons of water laced with toxic chemicals into the ground but in fact this is not the case. The EA has taken the position that fracking does not need a permit on the grounds that the saline water around the Bowland shale does not constitute groundwater and there is no pathway through which the injected fracking fluid could contaminate the aquifers above. Both these positions are extremely dubious. The 1980 Groundwater Directive defines groundwater as “all water which is below the surface of the ground in the saturation zone and in direct contact with the ground or subsoil” which would include the water within the Bowland shale. Recent research from the US also suggests that water is migrating from the Marcellus Shale in Pennsylvania into shallow aquifers and if this is the case there is no reason to expect that the Bowland shale would be any different. The EA has also failed to take any steps to regulate the storage, transport and disposal of flowback fluid and produced water from these operations despite the fact that their own regulations say Cuadrilla needs a permit.

Consultation

At every stage of these decision making processes the public have been systematically excluded from knowledge of or input into the decision making process. The licensing process four years ago and the planning applications that followed happened without anyone being made aware that these decisions were being made, let alone the nature of this new and massively polluting industry. As well as violating various domestic laws this is also in contravention of the Aarhus Convention to which the UK is a signatory. This treaty places responsibility on government bodies to consult the public on the environmental effects of development and failure to do so could also be illegal.

Conclusions

The overall picture that emerges of the decision making and regulatory processes around unconventional gas development is one in which compliant regulators and an extremely PR concious industry are trying to shoe horn the new process of massive slickwater hydraulic fracturing, and unconventional gas development more generally, into working within the present legal framework designed for conventional oil and gas development. The intention has clearly been to minimise the amount of public knowledge and debate around this issue even if this means bending the law past breaking point. The industry’s PR strategy doesn’t allow any admission that the processes used in unconventional gas development are significantly different from those previously used for conventional oil and gas extraction. This approach is easy to understand since it is difficult to see how they could win a debate on changing laws and regulations to accommodate unconventional gas development as was done in the US with the various exemptions from the environmental regulations, given the negative effects that have been documented.

The government seems happy to participate in this charade of pretending to regulate the industry while devoting most of its efforts to PR spin aimed at deflecting criticism of its lack of action. It should be noted though that unconventional gas could never really be effectively regulated anyway. By its very nature, spread across large numbers of small widely distributed sites, where most of its initial effects are hidden underground and will only become apparent over time, it would be impossible for public bodies with extremely limited resources to keep tabs on it. It is always going to be intrinsically more polluting than conventional oil and gas, and more importantly it will evolve much faster than conventional extraction processes. Scrapping the bottom of the barrel gets progressively harder and so the amount of effort involved and the environmental damage caused will increase quickly. Extreme energy involves running faster and faster just to stand still and there is no possibility of it being an orderly, well regulated affair. Either you allow the destructive looting of these difficult to reach fossil fuels or you don’t.