10/11/2015
The Infrastructure Act 2015 receiving its royal assent in February this year and the issue of fracking is as contentious as ever. The Act opened up the door for shale gas exploration, allowing fracking operators to explore for petroleum or deep geothermal energy at levels below 300 metres without having to gain the consent of the landowner.
Given the fierce opposition to fracking by some sections of society, the Infrastructure Act 2015 appeared to safeguard around 40% of English land from the potential risks of the process. The Act also stated that fracking can’t take place within ‘protected groundwater source areas or ‘other protected areas’. These terms have been subsequently defined in the draft Onshore Hydraulic Fracturing (Protected Areas) Regulations 2015, leading opposition groups to accuse the Government of backing down on its pre-election promises. Under the Draft Regulations, a “protected groundwater source area” is defined as any land at a depth of less than 1,200 metres beneath a relevant surface area. A relevant surface area means any land at the surface that is either:
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Within 50 metres of a point at the surface at which water is abstracted from underground strata and is used to supply water for domestic or food production purposes; or
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Within or above a zone defined by a 50-day travel time for groundwater to reach a groundwater abstraction point that is used to supply water for domestic or food production purposes.
The explanatory memorandum to the Draft Regulations states that the above definition is intended to align with the concept of a “Source Protection Zone 1”, i.e. a groundwater area that is protected under the Environmental Permitting (England and Wales) Regulations 2010 due to its particularly sensitive nature.
‘Other protected areas” are defined in the Draft Regulations to include areas of land at a depth of less than 1,200 metres beneath:
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A National Park (as defined in the National Parks and Access to the Countryside Act 1949);
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The Broads (as defined in the Norfolk and Suffolk Broads Act 1988);
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An area of outstanding natural beauty (as defined in Part 4 of the Countryside and Rights of Way Act 2000); or
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A World Heritage Site (meaning a property appearing on the World Heritage List kept under article 11(2) of the UNESCO Convention for the Protection of the World Cultural and Natural Heritage adopted at Paris on 16 November 1972).
Controversy Over the Debating of the Draft Onshore Hydraulic Fracturing (Protected Areas) Regulations 2015
At the end of October, Ministers were accused by Greenpeace of trying to ‘sneak’ through new rules which would allow fracking underneath National Parks and areas of outstanding natural beauty. The accusation followed the decision not to debate the Rules in Parliament, but instead send them to a small, select Parliamentary committee.
Opponents of fracking state the Onshore Hydraulic Fracturing (Protected Areas) Regulations 2015 represent a complete U-turn by the Government by allowing fracking to take place below 1,200 metres in national parks, the Broads, areas of outstanding natural beauty, world heritage sites and areas that are most vulnerable to groundwater pollution. To do this, fracking companies would have to drill down and sideways from outside protected areas.
Women Do Not Understand Fracking
Another highly controversial statement about fracking hit the headlines last week when Averil Macdonald, the chairwoman of UK Onshore Oil and Gas, said that many women are concerned about fracking, yet often lack a scientific understanding of the topic.
Studies show that men are more than twice as likely to support fracking as women.
Following her comments, many women including MP Louise Haigh and celebrity Bianca Jagger have hit back at the claims saying they understood the process perfectly and were opposed to it nonetheless.
No End to the Fracking Debate
These latest developments show that despite the determination of David Cameron’s Government to support and encourage fracking, the debate is far from over the opposition remains as strong as ever. We wait with interest to see what form the new Regulations take and what, if any, new controversy they cause.
Fisher Scoggins Waters are a London based law firm who are experts in construction, manufacturing and engineering matters. If you have any questions on fracking legislation or require legal advice, please phone us on 0207 993 6960.