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Defend Lytham Response to Government Fracking Guidelines

New Planning Guidance on Shale Gas

We are indebted to Defend Lytham member Alan Tootill for this trenchant and timely analysis of the Government’s guidance issued on 19th July 2013, the day after parliament went into recess.

You can read the new guidelines here:

Link to PDF file – Department For Communities and Local Government – Planning practice guidance for onshore oil and gas

Introduction.

There had been fears that the government would, in its Growth and Infrastructure Bill, take decisions on shale gas planning applications out of local government’s hands.

This didn’t happen – for the time being at least. No doubt aware that this would have created a storm of protest, the government left the proposals out of the bill when it came out in April this year.

No doubt they were also aware, as another reason behind the decision, that central government does not have the resources to handle a flood of shale applications. We all breathed a sigh of relief, that this assault on local democracy didn’t happen. This would have been seen as particularly galling since to pander to the anti-wind lobby the government had recently given more leeway to planning authorities to refuse wind farm proposals.

Our optimism was short-lived. The government – for once – has boxed clever. They flagged up new planning guidelines for shale gas and coal bed methane, to be published before the end of the parliamentary session which ended on Thursday 18th July, but in the event published them on the 19th. No consultation was made on the new guidelines, and, in an insult to MPs, too late for any debate in Parliament.

On first reading the guidelines do not appear as bad as might have been expected. But a more careful look reveals that they constitute a serious assault on planning authority’s rights to judge shale gas applications. Effectively they have removed the authorities’ right to make decisions independent of central government policy on energy and on the environment. And it has been very clear what the government’s policies have been. To ignore environmental concerns, above all climate change and the need to cut greenhouse gas emissions. To pursue an energy policy cutting investment in renewables and sponsoring shale gas with taxpayers’ money.

The message is clear from the introduction to the Guidance:

“Oil and gas (hydrocarbons) underpin key aspects of modern society, supplying energy to power industry and heat homes, fuel for transport to carry goods and people all over the world, and raw materials to produce everyday items. Hydrocarbons remain an important part of the UK’s energy mix whilst the country transitions to low carbon energy supplies.”

and:

“Unconventional hydrocarbons are emerging as a form of energy supply, and there is a pressing need to establish – through exploratory drilling – whether or not there are sufficient recoverable quantities of unconventional hydrocarbons present to facilitate economically viable full scale production.”

The document refers to the need for planning authorities to produce mineral plans. On the face of it this gives local authorities to include wider environmental issues as part of their plans. This may seem a loophole through which mineral planning authorities can wriggle out of the later terms of the guidance, and should be used by authorities who have rigorous environmental protection in their existing plan policies. However, since new plans will require approval by central government, new plans to incorporate policies for unconventional hydrocarbons may be cut or vetoed.

Comment Summary

1. The new guidelines put National Parks, AONBS and even Sites of Special Scientific Interest at risk, in removing their protection from unconventional hydrocarbon exploration and production.

2. Decision-making on environmental grounds is largely removed from the mineral planning authority (MPA)’s ability. These grounds include seismic activity, flaring, venting, water resources including aquifers, treatment and disposal of waste including radioactive materials, air emissions, safety and well integrity. Decision-making on these issues must be left to the government agencies, primarily DECC, EA and HSE.

3. The guidance considers extraction wells to represent a short-term activity with no lasting impact. The MPA will not be able to have a say in well design or construction but is left the task of ensuring a well is abandoned. The HSE or other government agencies will have no further interest in the abandoned well. Any “aftercare” needed is limited to surface restoration or use conversion, with a suggested limit of 5 years..

4. There is no requirement for planning authorities to demand details and plans of the direction and extent of any horizontal drilling, and no mention of who should help ensure that any owners of land under which such wells might be drilled are informed, or ensure that they have given their consent for such drilling.

5. The guidance says an EIA should only be required if the planning authority considers there will be significant environmental effect. EIA should be mandatory, as it may well be soon under EU directives. But the current guidance on the one hand tells MPAs that they can not take wider environmental issues into account, yet expects them to judge on whether the effects might be significant. This is a serious flaw in the document.

6. Planning authorities may give no consideration at exploration stage to what may happen in future. Therefore no consideration may be given to the appropriateness of a site for production.

7. MPAs may not consider alternatives to oil or gas in determining applications. This specifically excludes consideration of energy policy and climate change.

8, The guidance pressurises MPAs into making approvals because of the government’s economic policy.

9. There is no requirement specified for a minimum distance between an unconventional development and areas such as housing, or SSSIs. The MPA is again urged to take the need for minerals into account before imposing any such a restriction.

10. The guidance contains a definition of hydraulic fracturing which may be of benefit in challenging whether what an operator proposes is indeed fracking:

“Hydraulic fracturing is the process of opening and/or extending existing narrow fractures or creating new ones (fractures are typically hairline in width) in gas or oil- bearing rock, which allows gas or oil to flow into wellbores to be captured.”

Significantly this includes opening EXISTING fractures. This makes eg DFIT or acid stimulation (or even acid washing) open to interpretation as hydraulic fracturing.

Detail Comments

The first storm warning comes in the advice regarding plans:

“There is normally no need to create mineral safeguarding areas specifically for extraction of hydrocarbons given the depth of the resource, the ability to utilise directional drilling and the small surface area requirements of well pads.”

This clearly puts the status of National Parks, AONBS and even Sites of Special Scientific Interest at risk and removes their special protection status.

The guidance then goes on to list the various matters covered by DECC, the EA and HSE. These include seismic activity, flaring, venting, water resources including aquifers, treatment and disposal of waste including radioactive materials, air emissions, safety and well integrity.

By this guidance the government strips the right of local authorities to judge applications on any of these issues. It is clear that any decision based on such environmental matters would fall if sent to appeal:

“In doing so the focus of the planning system should be on whether the development itself is an acceptable use of the land, and the impacts of those uses, rather than any control processes, health and safety issues or emissions themselves where these are subject to approval under other regimes. Minerals planning authorities should assume that these non-planning regimes will operate effectively.”

We know full well that these agencies can not operate effectively. In the absence of any specific regulations for unconventional onshore exploration and production, with the regulatory bodies having little experience to go by and no funding to make them capable of implementing and monitoring regulation, never mind giving detail consideration to planning applications, this is a recipe for disaster.

The guidance also says that minerals extraction is a temporary activity (even if of long duration). It assumes that once exploration or production is complete the site can return to previous or new appropriate use and everything is done and dusted. This is of course clearly not the case. Wells are forever, and forever is a long time. The guidance ignores this, and assumes it is enough to leave it to planning authorities to make sure a restoration plan for the land is implemented. This is a clear indication there will be NO ongoing monitoring of abandoned wells or their impacts if and when they fail, on water or wider environment. And curiously, although the planning authority has no say over well design and construction, guidance says “The minerals planning authority is responsible for ensuring the wells are abandoned”. If the MPA has no need now to develop knowledge of well design and construction issues this is a dangerous policy, imposing a duty on the MPA for which they will have little capability, and which confirms once a well is finished with HSE will take no further interest.

On Environmental Impact Assessment the guidance makes it clear that these are not encouraged, and should only be insisted upon when environmental effects are likely to be significant. Clearly this is against the spirit of the EU moves towards mandatory EIA, and if, as expected, the EU confirm that in a new directive the guidance will have tio change. But in any event the guidance is in conflict with itself here. MPAs can clearly not judge the requirement for an EIA unless they have considered as part of their screening method many of the issues which are handled by the regulatory bodies.

The guidance says that planning authorities may give no consideration at exploration stage to what may happen in future. Therefore no consideration may be given to the appropriateness of a site for production.

“Mineral planning authorities should not consider demand for, or consider alternatives to, oil and gas resources when determining planning applications.” This specifically bars MPAs from consideration of energy policy and climate change.

“Mineral extraction is essential to local and national economies. As stated in paragraph144 of the National Planning Policy Framework, minerals planning authorities should give great weight to the benefits of minerals extraction, including to the economy, when determining planning applications.”

Having excluded wider environmental impacts from an authority’s remit, this note renders any decision which does not take the government’s view that it is necessary on economic grounds into account liable to challenge. It is a disgraceful pressure imposed on an authority to take a decision not purely based on local, land use and environmental grounds.

There is no requirement specified for a minimum distance between an unconventional development and areas such as housing, or SSSIs. The MPA is again urged to take the need for minerals into account before imposing any such a restriction and should be able to fully justify such restriction on enviromental and other considerations.

In paragraph 73:

“Responsibility for the restoration and aftercare of hydrocarbon extraction sites lies with the operator and, in the case of default, with the landowner.”

Aftercare is described as:

“operations necessary to maintain restored land in a condition necessary for an agreed afteruse to continue.”

Whilst this could be interpreted as monitoring operations to ensure the safety of an agreed afteruse such as wildlife area or recreational area this is clearly not what the guidance has in mind, especially as they suggest an aftercare period of only 5 years.

The guidance contains a definition of hydraulic fracturing which may be of benefit in challenging whether what an operator proposes is indeed fracking:

“Hydraulic fracturing is the process of opening and/or extending existing narrow fractures or creating new ones (fractures are typically hairline in width) in gas or oil- bearing rock, which allows gas or oil to flow into wellbores to be captured.”

Significantly this includes opening EXISTING fractures. This makes eg DFIT or acid stimulation (or even acid washing) open to interpretation as hydraulic fracturing. This may be useful in claiming any community benefit, challenging planning permissions, or operator misleading statements.

The document describes fracking as designed to be a “closed loop” system, with flowback water being returned to the surface. It then goes on to say it is estimated that between 25 and 75% of fracking fluid returns to the surface. That sounds a very poorly designed closed loop system to me! Another government fracking myth.

One Response to Defend Lytham Response to Government Fracking Guidelines

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