UK FRACKING – Legislation/Regulation

UK FRACKING – Legislation/Regulation

How it was before the Infrastructure Act 2015

 

Although far from satisfactory there was at least a planning process with full consultation and transparency?

Summary of DECC PowerPoint, issued Feb 2014 (before the Infrastructure Act 2015)

The process an operator must go through between receiving a licence to explore for Shale Gas and commencing Fracking.

ACRONYMS

DECC     Department of Energy and Climate Change – a government department

PEDL      Petroleum Exploration and Development Licence

ERA        Environmental Risk Assessment

EIA         Environmental Impact Assessment – conducted by the operator!!

MPA      Mineral Planning Authority MPA are effectively the Planning department of the County Council)

EA           Environment Agency – a non-departmental government body sponsored by DEFRA

DEFRA   Department for Environment, Food and Rural Affairs

BGS        British Geographical Survey – the BGS advises the government on Geoscience. It is partly government funded.

HSE        Health and Safety Executive – the national independent watchdog for work-related health, safety and illness

 

  • DECC issues PEDL
  • Operator does ERA involving contact with local communities
  • Pre-planning process starts with MPA and other stakeholders. This must involve a Point of Contact for the local community and a means for feedback.
  • MPA determines need for EIA (not needed for pre fracking exploration
  • EIA conducted by Operator!! (defined by MPA)
  • Operator makes initial Planning Application to MPA
  • MPA makes application public and ERA by use of the internet and local libraries
  • Operator applies for permit from the EA (may be rejected)
  • Operator agrees plan for eventual site restoration
  • MPA grants licence to remove oil/gas – Public Informed, HSE inspect
  • MPA manage the Appeals Process
  • Operator discharges planning conditions and then starts drilling – MPA inspect, Coal Authority and BGS informed and given regular data from drilling by the operator.
  • Operator gets independent examination of Well design – HSE inspects, liaising with DECC and the EA
  • Operator notifies HSE 21 days before drilling – supplying detailed information to DECC, BGS and EA about the operation
  • DECC gives final consent to drill
  • DECC needs to approve plan before Fracking commences
  • DECC consents to Fracture

 

The Infrastructure Act 2015 has changed the situation!

 

The Act is concerned with funding, planning and managing our national infrastructure and includes sections on roads, cycling and walking, housing, invasive non-native species, Planning procedures and Land registry, renewable energy and…Fracking

I believe the Act still requires that the initial planning and consultation for Fracking must be completed, and EU law requires a HRA (Habitat Regulations Assessment) to be completed but it seems that the Secretary of State has new powers to push things through the planning processes. Also the newly formed OGA (Oil and Gas Authority a sort of subset of the DECC) are there to focus the processes. And to top things off the Operators are now free to frack under private land without permission.

Also the obligation to return the land to its original condition when the Gas has been exploited has been revoked.

THE INFRASTRUCTURE ACT 2015

  1. Fracking and energy exploitation. InA 2015 provides for a new right to use land to exploit petrol or deep geothermal energy without notifying owners, which includes the right for fracking (hydraulic fracturing) under land. Previously, access to these resources was by agreement. Voluntary commitments have been made by the energy industry to notify communities of the exercise of these rights, but if the Secretary of State is not satisfied, he may introduce regulations setting up a statutory notice scheme. There are also a number of pre-conditions that must be satisfied before a well consent for fracking can be issued. The provisions allow for the drilling, boring, fracturing and alteration of deep-level land, installation of infrastructure, feasibility assessments, energy preparation and decommissioning. There is a right to leave the land in a different condition and the right to leave infrastructure or substances in the land. InA 2015 expressly removes landowners’ liability for any loss or damage attributable to the exercise of these rights by another person.

https://www.blplaw.com/expert-legal-insights/articles/infrastructure-act-2015-will-mean-practice/

One good thing to come out of the Act is that the Secretary of State for Transport will be required by law to set out a strategy for cycling and walking infrastructure and importantly the funding provided to meet it…a shame we will all be run over by tankers!

Simon Taylor October 2015

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