Tuesday, 14 October 2014

Does the infrastructure bill give carte blanche to inject any substance an operator chooses?

Today's fuss is over the infrastructure bill currently going through parliament. The purpose of this bill is to reduce the amount of time spent in court arguing over subsurface access rights and trespass issues.

However, anti-fracking activists have today tried to claim that the bill is an attempt to subvert existing regulation, allowing operators to inject whatever fluid they want without any safeguards. The Guardian has some typically scaremongering coverage here.

Greenpeace are claiming that
"Ministers are effectively trying to absolve fracking firms from responsibility for whatever mess they’ll end up leaving underground"
while Friends of the Earth claim that
"The government appears to be trying to sneak through an amendment which would allow fracking firms to reinject their waste under people’s homes and businesses" 
Are they right? Of course not.

You can read the infrastructure bill amendments here. The particular line of concern is 95ZBF (1)(d):
The ways in which the right of use may be exercised include [...]
(d) passing any substance through, or putting any substance into, deep-level land or infrastructure installed in deep-level land;
At first glance, this does indeed seem suspicious - appearing as it does to allow "any substance" to be used. However, part (4) of the same clause states that:
The right of use [...]
(a) does not give a person (“R”) any power which is greater than, or different from, the power which R would have had if the right had been granted by a person legally entitled to grant it; and
(b) does not relieve a person (“R”) from any obligation or liability to which R would have been subject if the right had been granted by a person legally entitled to grant it.
So actually this bill doesn't allow you to do anything that you can't already do given a landowner's permission, and still requires you to fulfil all obligations and liabilities, such as obtaining the correct permits and planning permission.

Imagine for a minute you are a landowner in a prospective shale gas area.

Even if you gave express permission for an operator to use toxic and/or hazardous chemicals for fracking on your land, they would not be allowed to do so, because it is prohibited by the Environment Agency. This bill gives them no new additional powers to do so: the use of toxic and/or hazardous substances (or anything else the EA doesn't approve of) is still not permitted

Similarly, even if you gave someone express permission to use your land for waste fluid re-injection, they would not be allowed to do so because it is prohibited by the Environment Agency. Again, therefore this bill gives them no new additional powers to do so.

Even if you gave someone express permission to drill a well on your land, they could not do so without planning permission from the local minerals planning authority. This bill does not relieve anyone from their obligation to obtain the necessary planning permission.

In short, this bill does not change what you can and/or can't do from that which you already can or can't do in situations where the landowner has given permission to drill lateral wells underneath their land. This is the case at all the currently active sites, where landowners have given permission, such as at Cuadrilla's proposed sites.

I am not a lawyer, but this clause is fairly easy to understand. I cannot believe that the above-quoted organisations do not understand this clause, so it seems to me that they are wilfully scaremongering.

Some other amendments in the bill are also worth further examination.
95ZBC (1): A person has the right to use deep-level land in any way for the purposes
of exploiting petroleum or deep geothermal energy.
In other words, this applies only to oil/gas and geothermal extraction, and nothing else. I've already seen it suggested that this will be used as a way to sneak nuclear waste storage projects under the radar. Clearly this is not the case. I would argue that this also obviates the possibility of underground waste storage as implied by Friends of the Earth, above and beyond the points I make above: waste re-injection is not petroleum exploitation, so it is not covered by this bill.
95ZBH: (c) make provision for any contingency fund prescribed by the Secretary of State under subsection (3A).  
(3A) Regulations shall enable the Secretary of State to require the establishment of one or more contingency funds either by a single energy undertaking, or by a number of energy undertakings or by all undertakings engaged in the onshore gas and oil industry, and such a contingency fund shall be available to meet the cost of unforeseen damage to the environment or economic damage to any person or persons arising from the operation of oil or onshore gas activity.
This is something that opposition groups have called for for some time. The creation of a contingency fund such that, in the unlikely event of an accident of some kind, there is a fund of money paid into by the operators to put right any damage. This bill will now enable the Sec. State for Energy to deliver this.
95ZBM: Shale gas extraction: baseline monitoring
(1) No shale gas extraction may take place before the operator has measured the baseline levels of methane in the groundwater over a 12 month period.
(1A) Notices under subsection (1) must, in the case of shale gas extraction, include baseline levels of methane in the groundwater.
(1B) Where a notice under subsection (1) includes baseline levels of methane in the groundwater, the Agency must issue a notice under subsection (2) requiring the levels of methane in the groundwater to be measured over a 12 month period.
This clause shows that baseline groundwater monitoring will be required. This will enable the Environment Agency to see immediately if operations have caused groundwater problems, so they can be remediated. This is something that all operators have been doing anyway (methane can occur naturally, so they want to cover their on backs) and would likely be required to obtain fracking permits from DECC, but it's good to see it included on this bill as well.
95ZBN: Shale gas extraction: planning
(1) All applications for planning permission to the relevant local authority (including for sites of less than one hectare) for the purpose of extracting shale gas must include
(a) an Environmental Impact Assessment; and
(b) the well-by-well disclosure of-
     (i) the composition of any hydraulic fluid to be employed; and
     (ii) the quantity of such hydraulic fluid to be employed.
Not only does this bill not remove any planning permission requirements, it requires that an environmental impact assessment is included in the planning application. Such assessments have already been included in recent planning applications, but again it's good to see this requirement being included in this bill.

Also, note the requirement that the amount and composition of any chemicals used frack fluid must be disclosed. Again, it's often claimed that operators will use nasty chemicals and not tell us what they are or how much they use: this bill shows that they won't be allowed to do so.
95ZBP: Shale gas extraction: monitoring requirements:
(1) The Secretary of State must by regulations require operators to meet certain environmental monitoring obligations in respect of shale gas extraction.
(2) Regulations made under subsection (1) shall provide that—
(a) no shale gas extraction may take place at a site until the operator has provided the Environment Agency or Scottish Environment Protection Agency, as appropriate, with specified data about that site in respect of the preceding 12 months, and
(b) the operator must continue to provide the Environment Agency or Scottish Environment Protection Agency with specified data about a site throughout the period in which shale gas extraction takes place at that site.
(3) In subsection (2), “specified data” includes, but is not limited to, levels of methane in the groundwater, ecological studies and surface water.
This provides for further monitoring requirements during operations. Groundwater methane is usually cited as the largest concern, but this clause ensures that other aspects such as local ecology and surface water quality are monitored to the EA's satisfaction.

Surprisingly enough, the media don't seem particularly interested in these amendments, none of which could be considered a watering down of regulation. Much of the above is already covered by existing EA and planning rules etc., but it is helpful to see them incorporated into this bill as well.


  1. Great summary James. I totally agree that the outrage expressed in some quarters is unwarranted. I imagine the aim of this new clause is really there to cover all eventualities with regard to things like instrumentation, installation of casing and tubulars, cement and mechanical plugs etc - those things that are integral to the activities in question but not specifically identified in permitting and planning legislation because they pose no risk.

  2. Blackpool Resident19 October 2014 at 09:41

    I don't understand why the anti-frackers complain so bitterly that The Gazette is in hock to Cuadrilla when it's providing them with favourable coverage like this: http://www.blackpoolgazette.co.uk/news/crime/concern-at-reckless-gas-drilling-plans-1-6904192