The 'Fracking' Election
Why the 2017 UK General Election is a ground-breaking test of British environmental policy

ecolonomics no.17
Paul Mobbs, Mobbs' Environmental Investigations
June 2017

Preface

I have been researching the issue of unconventional gas and oil in the UK since 2009 – shortly after the Government's 13th On-shore Licensing Round awarded many of the petroleum exploration and production licences (PEDLs) which are being drilled around Britain right now.

Over that time the Government has steadily 'lost control' of the issue by a combination of public resistance, industry failure in the US and elsewhere, and changing economics.

Today though, the response to the inherent problems of the Government's oil and gas policy represents not only an unprecedented twist in this long saga, but also an unprecedented break in UK environmental and town planning policy.

In the context of 'Brexit' – and the potential economic challenges that it might create – this change in policy must also be seen as a warning; a bell-weather of the "shape of things to come" in future policy.

What the Conservatives propose in their election manifesto is to make the development of on-shore oil and gas, below the criteria of what constitutes a 'major' operation in The Infrastructure Act 2015, "permitted development". Operators need only inform local councils, who will have no powers to stop the development.

It's important to unpack this seemingly subtle change to understand its true impact – and why it is so significant.

Download Ecolonomics 17 – PDF version

For more detailed information about constituencies, PEDL licences, and sclable maps, go to the wonderful on-line resource created in Google Maps by Frack Free United:
https://www.frackfreeunited.org/frack-maps-and-candidate-info/

Contents:

1. It began with such enthusiasm…
2. General Election 2017 – the manifestos
3. Policy changes and the home nations
3.1. Scotland
3.2. Wales
4. The evolution of policy in England
5. The three guarantees of public safety: Licensing; Planning Permission; and Environmental Permits
5.1. On-shore licensing
5.2. Planning guidance
5.3. Environmental Regulation
5.4. Since 2010, our civil rights have been consistently curtailed by Government in favour of a small, well-connected fossil fuels lobby…
6. What is a 'frac', what is a 'mini-frac', and what isn't 'fracking' at all?
6.1. Simple question, "what is fracking?"
6.2. What is a 'mini-frac'?
6.3. What is not 'fracking'?
7. What is 'planning permission' and what is 'permitted development'?
7.1. Permitted development
7.2. Planning permission
8. Public safety and removing the need for planning permission
8.1. The guarantee of safety through planning
8.2. The fracking "super-regulator"
9. Which areas are affected by these changes?
In conclusion… this is no longer just about fracking, it's become a struggle for our long-won civil rights
This is an ideological problem
What drives this is allure of lobby groups
Don't just focus on the next week; think what happens beyond the election
Information boxes –
Box 1: The 2017 election manifestos and unconventional oil & gas policy
Box 2: Conservative Manifesto 2017
Box 3: Scottish Conservative Manifesto 2017
Map 1: UK Petroleum Exploration and Development Licences (PEDLs) extant in early 2017 and UK electoral constituencies
Box 4: DECC/DCLG restatement of the important of the planning system to regulation
Box 5: 'Fracking' and the Infrastructure Act 2015
Table 1: Median Water Use in US Unconventional Oil and Gas Fields
Box 6: 'Matrix Acidizing'
Box 7: Article 5 of the GPDO
Box 8: The 'planning system' and the Infrastructure Act section 50
Box 9: PEDL-affected constituencies in the North West and North Wales
Box 10: PEDL-affected constituencies in the North East and East Midlands
Box 11: PEDL-affected constituencies in the South East and South
Box 12: PEDL-affected constituencies in the South West and South Wales

1. It began with such enthusiasm…

Extreme Energy Intitiative

For a while it seemed as if the departure of David Cameron and George Osborne from the Government had dissipated the push for unconventional gas and oil[1] – or, as it has been colloquially (though incorrectly) labelled, "fracking".

DECC/BGS: 'The Hydrocarbon Prospectivity of Britain's Onshore Basins', October 2010

From the establishment of the Coalition Government following the General Election of 2010, on-shore oil and gas exploration[2] became the new priority of the then Department of Energy and Climate Change. Though this process was begun in 2007 with the 13th On-shore Oil and Gas Licensing Round, under the previous Labour Government, the new coalition government seized the unconventional oil and gas agenda[3] with an evangelical zeal.

New Scientist: 'How fracking caused earthquakes in the UK', Michael Marshall, 2nd November 2011

That early optimism, however, floundered: firstly, due to the Preese Hall earthquake[4] in 2011 – following Britain's first attempted high-volume hydraulic fracturing (HVHF) operation in Lancashire; and secondly, following the large-scale protests[5] against drilling at Balcombe in Sussex during 2012.

The Ecologist: 'With sub-$60 oil, fracking and tar sands losses threaten the whole financial system', 17th December 2014

The collapse of the oil price in late 2014, and the economic effects this had on unconventional oil and gas sources in 2015, took the shine off the Government's project. In the US shale companies, which had borrowed billions in order to fund their operations, were falling into debt[6]. Major investors were writing-off billions in the value of their assets. The US fracking industry largely survived on the income from Wall Street, the result of hedged oil trading[7].

The exit of David Cameron and George Osborne following the Brexit referendum, and the installation of Theresa May as Prime Minister, appeared to provide a break with this previous energy policy.

In July 2016 the Department of Energy and Climate Change[8] (DECC) was disbanded – its functions absorbed into a new, larger Department for Business, Energy and Industrial Strategy[9] (BEIS). More generally, the 'noise' on shale gas coming out of this new department faded during late 2016 – giving the impression that, perhaps, the political emphasis behind unconventional oil and gas was changing.

Irrespective of the reasons why a new general election was called, what it enables the Conservative Government to do is abandon the previous commitments on energy and environmental policy – made under the dominion of David Cameron and George Osborne. A new election, and thus a new manifesto, creates the opportunity for a different approach to energy policy.

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2. General Election 2017 – the manifestos

In the wake of the Brexit referendum[10], from the outset the election was slated as having little concern about issues such as energy, the environment, or climate change.

However, through changing our trade and legal relationships to the rest of the world, the Brexit process will in fact affect energy and the environment more than any other part of the economy. Today energy isn't just an issue of commodity trading. Energy technology is dependent upon intellectual property rights, which are in turn an issue of trade relations.

The Conservative Party: 'Forward Together', manifesto 2017
The Labour Party: 'For the Many Not the Few', manifesto 2017

The position of the major UK political parties on unconventional gas and oil can be summarised as follows (see Box 1 for extracts):

The Liberal Democrat Party: 'Change Britain's Future', manifesto 2017
The Green Party: 'The Green Guarantee', manifesto 2017

What's consistent is that the major political parties, Conservatives and UKIP excepted, view fossil fuels as the 'old' economy – one which we must move away from in order to develop a more sustainable and secure future.

UKIP, while giving qualified support to 'fracking', positions itself on the fracking issue as not as 'extreme' as the Conservative Party.

The Ecologist: 'Whitehall's fracking science failure: shale gas really is worse for climate than coal', Paul Mobbs, 24th May 2017

As noted above, a new manifesto would allow the Conservative Party to have a clean break with the policies of the previous Cameron government. Instead the Conservatives now propose hardening fossil fuels policy still further, against recent public protests, and the growing evidence of the evidential flaws in their policy[18].

Their new suggested policy framework would effectively impose "fracking" upon the public using property rights, rather than allowing an open and democratic debate over development. In addition, it would make regulation more remote from the public and independent scrutiny.

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Box 1: The 2017 election manifestos and unconventional oil & gas policy

Below are relevant extracts from the manifestos of the major UK political parties relating to unconventional oil and gas policy.

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Box 2: Conservative Manifesto 2017

Note: significant quotes have been highlighted

Future Britain funds (page 20)

People have long talked about the need to create UK sovereign wealth funds. We will now make this a central part of our long-term plan for Britain. We will create a number of such funds, known as Future Britain funds, which will hold in trust the investments of the British people, backing British infrastructure and the British economy. We anticipate early funds being created out of revenues from shale gas extraction, dormant assets, and the receipts of sale of some public assets. We will encourage pension funds with an interest in joining Future Britain funds to do so.


Natural gas from shale (page 23)

The discovery and extraction of shale gas in the United States has been a revolution. Gas prices have fallen, driving growth in the American economy and pushing down prices for consumers. The US has become less reliant on imported foreign energy and is more secure as a result. And because shale is cleaner than coal, it can also help reduce carbon emissions. We believe that shale energy has the potential to do the same thing in Britain, and could play a crucial role in rebalancing our economy.

We will therefore develop the shale industry in Britain. We will only be able to do so if we maintain public confidence in the process, if we uphold our rigorous environmental protections, and if we ensure the proceeds of the wealth generated by shale energy are shared with the communities affected.

We will legislate to change planning law for shale applications. Non-fracking drilling will be treated as permitted development, expert planning functions will be established to support local councils, and, when necessary, major shale planning decisions will be made the responsibility of the National Planning Regime.

We will set up a new Shale Environmental Regulator, which will assume the relevant functions of the Health and Safety Executive, the Environment Agency and the Department for Business, Energy and Industrial Strategy. This will provide clear governance and accountability, become a source of expertise, and allow decisions to be made fairly but swiftly.

Finally, we will change the proposed Shale Wealth Fund so a greater percentage of the tax revenues from shale gas directly benefit the communities that host the extraction sites. Where communities decide that it is right for them, we will allow payments to be made directly to local people themselves. A significant share of the remaining tax revenues will be invested for the benefit of the country at large.

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3. Policy changes and the home nations

The law and policy on unconventional gas and oil applies differently in each of the home nations.

Any discussion of what the Conservative manifesto – as quoted in Box 2 – would mean in practice requires that we address these differences first.

Note that the specific laws listed below will be explained in subsequent sections of this report. They are used here to clarify the differences between the home nations.

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3.1. Scotland

In Scotland powers over oil and gas licensing on the land were recently devolved to the Scottish Government. Town planning and environmental regulation are long-standing devolved powers.

Consequently the Infrastructure Act 2015 does not fully apply in Scotland. Key amongst the provisions which do not apply is the definition of what constitutes "fracking" under that Act. That removes one of the key loopholes on development which has been enabled under English law.

Scottish permitted development rights are also separate from English land law. Consequently changes to permitted development in England do not automatically apply in Scotland, unless the Scottish Government enacts those same powers itself.

Scottish Government: 'Onshore Oil & Gas'

Scotland currently has a moratorium[19] on unconventional oil and gas. The Scottish Parliament should vote on a complete ban later in 2017.

That said, the Scottish Conservative Manifesto[20] also makes commitments with regard to shale gas (see Box 3, below).

What's interesting here is that the Scottish Conservatives statement shows a misunderstanding of the issues. Grangemouth imports ethane gas – due to falling North Sea production – for industrial use. Not methane for energy production.

Drill or Drop: 'Thousands call for fracking ban in Scotland as consultation closes', Ruth Hayhurst, 31st May 2017

Currently Scotland has the best legal structures to control on-shore oil and gas – if only because it is not permitted. Whether that persists that will depend on how the vote goes[21] later in 2017.

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Box 3: Scottish Conservative Manifesto 2017, page 33

We won't participate in the present political posturing over unconventional gas by our opponents, especially in light of recent developments at Grangemouth, which was only saved through shale gas imports from the United States. Scotland has decades of experience in offshore drilling and hydraulic fracturing, with the best environmental safety regime in the world. With thousands of job losses across the North East, we should utilise this expertise to safely extract unconventional gas, with planning consent from local communities.

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3.2. Wales

In Wales, though planning and environmental regulation are long-standing devolved powers, powers over oil and gas licensing are not.

While the Infrastructure Act 2015 applies in Wales – and hence the legal definition of what 'fracking' is – English planning law does not apply because it is a devolved power. This creates an anomaly whereby what is considered to be 'fracking' is the same in England and Wales, but differences in the planning framework will not allow the same operation to be carried out in each country on an equal basis.

Generally Welsh planning law lags behind England – a fact which has led many Welsh politicians to call on the Welsh Assembly to create a "competitive" planning regime (i.e. less restrictive) to encourage more (arguably low quality) economic development.

Currently the General Permitted Development Order in Wales largely dates from the 1990s, and has been seldom updated.

Welsh Assembly Government: 'Clarification Letter on the national planning policies that apply for onshore unconventional gas and oil development', Minister for Housing & Regeneration

It's also important to remember there is not a moratorium on 'fracking' in Wales as there is in Scotland. The Welsh planning minister requires local authorities[22] to send any applications to the Assembly Government – which might then be called in for national determination.

Unlike Scotland, Welsh Conservatives do not have a separate manifesto for the General Election. Their 2016 Assembly Election manifesto[23] made no mention of unconventional oil and gas at all.

Therefore the situation in Wales, while not as restrictive as in England, is vague. If a developer pushed a well designed test case into the Planning Court[24], we might find that the system is thrown into greater uncertainty – if the Court ruled that the Welsh Government applies the law inconsistently.

Therefore, when considering the rest of this briefing in Wales, be aware that it requires far fewer legislative changes in Wales than in Scotland to enact the Conservative Party's proposed framework for unconventional oil and gas.

The rest of this briefing deals with the situation in England.

The full scope of the Conservative manifesto cannot be secured directly in Wales or Scotland. Elements of those policy changes are devolved powers, and could not be enacted without the co-operation of the Welsh Assembly and Scottish government.

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4. The evolution of policy in England

Marine and Petroleum Geology: 'UK shale gas – The story so far', Richard C. Selley, vol.1 no.1 pp.100-109, March 2012

As far back as 1985, proposals to develop shale gas in Britain[25] were submitted to the (then) Department of Energy. However, it wasn't until the late 2000s – due to developments in the USA – that the idea was given serious study by civil servants.

Despite the fact petroleum licences would allow fracking, at the time the UK planning and environmental regulation systems could not easily deal with this 'novel' processes.

Cabinet Office/Prime Minister's Office: 'Prime Minister's speech to CBI', 19th November 2012

Although you could stick a flag along many points in a time-line, apart from today's Conservative Party manifesto, the most significant point in the recent history of unconventional oil and gas in Britain was David Cameron's speech to the CBI[26] in 2012. That's because it clearly articulated the approach to policy which the Government has pursued on oil and gas since that point:

You know the story. The Minister stands on a platform like this and announces a plan then that plan goes through a three month consultation period there are impact assessments along the way and probably some judicial reviews to clog things up further.

By the time the machinery of government has finally wheezed into action, the moment's probably passed…

So I am determined to change this.

Here's how:

When this country was at war in the 40s, Whitehall underwent a revolution.

Normal rules were circumvented. Convention was thrown out…

Well, this country is in the economic equivalent of war today – and we need the same spirit. We need to forget about crossing every 't' and dotting every 'i' and we need to throw everything we've got at winning in this global race.

This is the direction the Government has been heading since 2010. All recent amendments to the law and official guidance make sense when viewed in the context of Cameron's 2012 speech. All the current Conservative manifesto does is push that process a little further.

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5. The three guarantees of public safety:
Licensing; Planning Permission; and Environmental Permits

Any complex, hazardous development is likely to be safer when three or four different people take a look at it. That is the position regarding most of the hazardous industries in Britain today:

To extract energy minerals from the ground requires a licence from the Crown – which usually required that certain conditions on the financial capability of the applicant be met;

All hazardous industrial processes need licences to operate – usually issued by the Health and Safety Executive – which require that certain technical requirements be met;

With the exception of many routine operations, called 'permitted development', all development on or under land requires planning permission – as part of which its impact on local communities can be considered; and

Any process which releases toxic or hazardous substances to the air, land or water, or which generates waste, requires an environmental permit from the Environment Agency – as part of which the impact upon the environment and human health must be assessed.

Let's look at how each of those has changed in the past decade.

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5.1. On-shore licensing

The first extraction of oil and gas in Britain happened more than a century ago, when the first deep geological drilling took place. There was no chance of shale oil/gas or coal-bed methane use becoming widespread as it could not compete with the dominant technologies of that time – town gas[27] production and the surface oil shale industry[28] in Scotland.

Britain nationalised all underground coal and petroleum resources in the 1930s. From then on exploitation required a licence from the Crown (the Government), and this stipulated the level of royalties to be paid, and for how long.

Legislation UK: 'Petroleum Act 1998'

Today the process of regulating licences is controlled by the Petroleum Act 1998[29]. This was amended by the Infrastructure Act 2015 to redefine what is 'fracking' (see Box 5 for details).

National Archives: '13th On-shore Oil and Gas Licensing Round'

In 2008, the 13th On-shore Oil and Gas Licensing Round[30] awarded a number of 'petroleum exploration and development licences' (PEDLs).

DECC/BGS: 'The Hydrocarbon Prospectivity of Britain's Onshore Basins', October 2010

For areas where shale gas, shale oil, tight oil and coal-bed methane were the primary target for exploration. As part of that process, in 2010, DECC and the British Geological Survey (BGS) produced a study[31] on the 'unconventional' hydrocarbon resource which might be available across Britain.

Oil and Gas Authority: '14th Onshore Licensing Round'

The 13th On-shore Round took a little over a year to complete. The 14th On-shore Round[32], which had begun in mid-2010, would not be completed until the very end of 2015. That was in part due to the failure of DECC to properly review the impacts[33] of issuing licences, which meant it had to restart the whole process, with a new strategic environmental appraisal report, at the end of 2013.

DECC/BGS: 'The Unconventional Hydrocarbon Resources of Britain's Onshore Basins – Shale Gas', December 2012
DECC/BGS: 'The Unconventional Hydrocarbon Resources Of Britain's Onshore Basins – Coalbed Methane (CBM)', December 2012

As part of the 14th Round process DECC and the BGS also produced two studies – one on shale gas/oil[34] and one on coal-bed methane[35] – to supplement the report form 2010, and to encourage investment in a new 'unconventional' on-shore industry.

These two reports show hype behind this process. As in the 13th Round in 2007, around 50% of Britain was offered up for exploration. Even so, just a few percent of the area available was finally taken-up by companies wanting to explore for oil and gas.

Map 1 shows the PEDLs which are currently valid.

Paul Mobbs/MEI: 'Fracktured Accountability – A study of political decision-making and unconventional fossil fuel interests in the Coalition Government', 2015
DeSmogblog UK: 'How a Big Oil Lobbying Network Makes Billions from Taxpayers as North Sea Wells Run Dry', Mat Hope, 28th February 2017

Apart from amendments to the Petroleum Act by the Infrastructure Act – brought into force in 2017 – the other major change has been in relation to the conditions which are applied to licences. Much of this has been the fruit of the Government's close links[36] to oil and gas lobbyists[37] in recent years.

The most significant of these changes were the result of a review by the Treasury[38] in 2013 – which recommended changes to environmental regulation too. This review also (paragraph 4.32) led to cuts in the tax payable[39] by oil and gas operators, to the extent that in 2016 the public actually paid the operators £396 million[40] to produce oil and gas.

HM Treasury: 'Investing in Britain's future' (Cm8669), June 2013
Carbon Brief: 'The North Sea oil and gas sector became a net drain on the UK's public finances for the first time in 2016, Carbon Brief analysis shows', Simon Evans, 3rd April 2017

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Map 1: UK Petroleum Exploration and Development Licences (PEDLs) extant in early 2017 – shaded blocks – and UK electoral constituencies – shown in outline

UK PEDLs map
click to download larger image

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5.2. Planning guidance

In Britain, one of the most centralized 'Western democracies', local development takes place under a rather Kafkaesque process. Local planning committees, of locally elected/accountable councillors, take decisions on local developments – with the proviso that they follow national guidelines or face expensive appeals and/or legal action by developers.

Over the last 20 years there has been a steady ratcheting-up of the controls on those local decisions through a liberalisation of planning guidance. As noted above, town planning is run separately in England, Scotland and Wales, and much of the new guidance on oil and gas applies to England only.

DCLG: 'National Planning Policy Framework', March 2012

When the Coalition Government came to power in 2010 they pledged to reduce all planning guidance to less than 100 pages. This was achieved in March 2012 when the Department for Communities and Local Government (DCLG) published the National Planning Policy Framework[41] (NPPF).

DCLG/BGS: 'Alternative fossil fuels', November 2011

The previous year DCLG and BGS had issued a more detailed 'technical guidance' on 'alternative fossil fuels'[42] – an flawed document due to is vague details of the whole gas production process and its impacts, but which at that time was the only detailed information available to local planners.

All areas should have local development plans – although with recent cuts these have become more out-of-date as reviews have stalled. The NPPF doesn't over-ride the local development plan, but it is a 'material consideration' alongside the plans.

For example, for minerals sites it is common to require a financial bond in the event of pollution, or in case of bankruptcy, to enable restoration of the site. The new NPPF states (paragraph 144):

When determining planning applications, local planning authorities should… provide for restoration and aftercare at the earliest opportunity to be carried out to high environmental standards, through the application of appropriate conditions, where necessary. Bonds or other financial guarantees to underpin planning conditions should only be sought in exceptional circumstances.

Guardian On-line: 'Big Coal's big scam – scar the land for profit, then let others pay to clean up', George Monbiot, 28th April 2015

This freed developers from having to pay or insure their sites to guarantee appropriate restoration – which has been severely abused by some minerals operators[43] in recent years.

The NPPF not only stated that 'minerals' development was not 'inappropriate' for the greenbelt, it also stated (paragraph 147):

Minerals planning authorities should also… when planning for on-shore oil and gas development, including unconventional hydrocarbons, clearly distinguish between the three phases of development (exploration, appraisal and production) and address constraints on production and processing within areas that are licensed for oil and gas exploration or production.

That, however, was not enough for the unconventional oil and gas industry's needs.

As part of the Treasury's 2013 review, planning was identified as a bottleneck for oil and gas development. The Treasury ordered (paragraph 4.33) the DCLG to produce new planning guidance.

DCLG: 'Planning practice guidance for onshore oil and gas', July 2013

They duly published the new guidance[44] a few weeks later.

In the context of the debate over the Conservative manifesto, one statement in the 2013 planning guidance is quite significant (paragraph 26):

Planning permission is one of the main regulatory requirements that operators must meet before drilling a well, for both conventional and unconventional hydrocarbons.

The NPPF guidance states (paragraph 120):

To prevent unacceptable risks from pollution and land instability, planning policies and decisions should ensure that new development is appropriate for its location. The effects (including cumulative effects) of pollution on health, the natural environment or general amenity, and the potential sensitivity of the area or proposed development to adverse effects from pollution, should be taken into account.

That statement is qualified in NPPF paragraph 122:

In doing so, local planning authorities should focus on whether the development itself is an acceptable use of the land, and the impact of the use, rather than the control of processes or emissions themselves where these are subject to approval under pollution control regimes. Local planning authorities should assume that these regimes will operate effectively.

However, the new guidance prevented local planners from considering the cumulative impacts of development (paragraph 58):

Individual applications for the exploratory phase should be considered on their own merits. They should not take account of hypothetical future activities for which consent has not yet been sought, since the further appraisal and production phases will be the subject of separate planning applications and assessments.

What issues planning authorities could consider was also narrowed by paragraph 32 of the guidance:

There exist a number of issues which are covered by other regulatory regimes and minerals planning authorities should assume that these regimes will operate effectively. Whilst these issues may be put before minerals planning authorities, they should not need to carry out their own assessment as they can rely on the assessment of other regulatory bodies.

What's also significant is that even though less damaging options to unconventional oil and gas might exist, the guidance prevents planners from considering them (paragraph 65):

Mineral planning authorities should not consider demand for, or consider alternatives to, oil and gas resources when determining planning applications. Government energy policy makes it clear that energy supplies should come from a variety of sources.

FieldFisher: 'A victory for the development of shale gas in England?', Louise Sivey and Laura Taylor, 9th January 2017

This may sound abstract, but how these documents are interpreted by judges are the reason why a number of recent legal challenges against planning permissions have failed[45].

UKOOG: 'Community Engagement Charter – Oil and Gas from Unconventional Reservoirs', June 2013

In June 2013 UK Onshore Operator's Group (UKOOG) produced its 'Community Engagement Charter'[46]. This committed operators to:

Engage with local communities, residents and other stakeholders… in advance of any operations and in advance of any application for planning permission.

This document, and the new planning guidance, was also lauded by the Business Secretary, Michael Fallon, who stated during a Commons debate[47] that:

Early community engagement by companies in the industry is essential to gaining public acceptance of and support for shale gas development. We have worked closely with the industry to encourage strong engagement that addresses local concerns. We are therefore pleased that the industry – through its trade body, the United Kingdom Onshore Operators Group – has recently collectively adopted a community engagement charter. One of its objectives is to identify and pro-actively address local issues and concerns. In addition, each operator will engage with local communities and other stakeholders, beginning in advance of any operations or any application for planning permission. For our part, the Government have a role to play in supporting public engagement by ensuring access to evidence-based information that can address the questions raised and inform public debate.

Two days later, in another debate[48], he stated:

I turn to the planning and regulatory system, which will have a high degree of local scrutiny and prior consultation, which we are setting out in guidance that we will publish very soon. That guidance will not cover every issue when considering proposals for shale gas. It must be read alongside other planning guidance and the national planning policy framework, but it will carry weight in the system. The Government have heard loud and clear what the industry and others in the community have said about the importance of clarifying that the main focus of planning should be on the surface issues – traffic, noise, visual impact and so on.

As highlighted in the planning guidance quoted earlier, and reiterated by the Business Secretary, planning permission is the key stage which allows community engagement in the development of on-shore oil and gas. Though still a Cabinet minister, it would appear that he no longer believes this.

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Box 4: DECC/DCLG restatement of the important of the planning system to regulation, August 2015

In August 2015 DECC and DCLG issued new guidelines for on-shore oil and gas development following the passage of The Infrastructure Act. It restated the primary role of the planning system in regulating on-shore oil and gas operations:

Planning

The Government is committed to ensuring that local communities are fully involved in planning decisions that affect them. We are also making the planning system faster and fairer for all those affected by new development. No one benefits from the uncertainty caused by delay. This is why we expect every planning application or appeal, large or small, to be dealt with as quickly as possible.

There is a clear expectation that local planning authorities should ensure that decisions on planning applications are made within statutory time-frames: 16 weeks where an application is subject to Environmental Impact Assessment…

To avoid unnecessary work causing delay, when determining planning applications, local planning authorities should carefully consider which issues can be left to other regulatory regimes, taking full account of the Government's planning guidance on this issue…

But we cannot be complacent. Therefore, as of today:

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5.3. Environmental Regulation

LegislationUK: 'The Environmental Permitting (England and Wales) Regulations 2010'
Environment Agency: 'Standard rules – environmental permitting'

Polluting processes are dealt with under a unified system, the Environmental Permitting Regulations[49]. Introduced in 2007, these regulations apply to all polluting processes, and implement a set of standard rules[50] to control emissions to the environment.

The difficulty was that the novel processes involved in on-shore unconventional oil and gas were not adequately covered by the regulatory framework.

As part of the Treasury's 2013 review, the Environment Agency were directed to (paragraph 4.34):

Environment Agency: 'Standard rules – environmental permitting – Onshore oil and gas exploration, and mining operation'
Wikipedia: 'Aarhus Convention'

The Environment Agency's on-shore oil and gas technical guidance[51] was finalised during 2014.

The problem with cutting the period to determine applications was that any "significant" application had to be subjected to public consultation – in order to comply with the Aarhus Convention[52].

Guardian On-line: 'Owen Paterson held urgent meeting for fracking boss, documents show', Damian Carrington, 21st March 2014

Earlier in 2014 Environment Agency chairman Lord Chris Smith had met with[53] Lord Browne – who was both chief executive of Cuadrilla Resoures and a non-executive Government trade minister – and the Environment Secretary Owen Patterson. A letter, later leaked[54] from George Osborne's office shows that around this time Osborne requested ministers make fast-tracking fracking a "personal priority", including the delivery of various "asks" from Cuadrilla.

Guardian On-line: 'George Osborne urges ministers to fast-track fracking measures in leaked letter', Damian Carrington, 26th January 2015

The Government consulted[55] on removing the need for permits for sites storing less than 200 tonnes of oil for less than 6 months, so that permits could be processed more quickly without publicity. This caused some negative publicity. While the Independent On-line reported the issue[56], the Telegraph On-line withdrew an item from its website[57] on this issue following criticism from DECC.

Independent On-line: 'Government trying to fast-track fracking without public consent', 11th June 2015

The following year the Environment Agency issued an updated guidance note on public consultation[58]since withdrawn, it would appear, without any explanation – stating that:

Although it might seem at first sight rather unnecessary to define what a 'site of high public interest' is, the fact that a site is generating a lot of public interest does not, for the purposes of this note, necessarily make it a 'site of high public interest'.

Task Force on Shale Gas
TalkFracking: 'Case study 6 – The interrelationship between the All-Party Parliamentary Group on Unconventional Gas and Oil and The Task Force on Shale Gas', March 2015

In mid-2014 Chris Smith left the Environment Agency. Shortly after he was appointed to run the industry-funded Task Force on Shale Gas[59] – which, despite its questionable credentials[60], ultimately concluded a year later that shale gas exploitation should go ahead[61] in Britain.

Today, the Environment Agency still has to consult on permit applications involving on-shore oil and gas developments. These inevitably act as a flag to local campaigners that drilling operations are imminent – allowing them to organise local resistance to the project. Despite the pain this causes, the Government would find it difficult to change publicity requirements as a result of the Aarhus Convention.

However, that could change after Brexit.

Although Britain is a signatory to the Aarhus Convention, it is not directly implemented in UK law – as, for example, the Council of Europe's European Convention on Human Rights[62] – which was implemented by the Human Rights Act 1998 (note, the CoE, like the UNECE, is not an 'EU' body).

Instead the requirement of the Aarhus Convention are implemented in the UK through EU environmental law.

Consequently, especially if there is a 'hard' Brexit, the chances are that the UK could withdraw from its obligations under the Aarhus Convention – and thus our rights to be consulted about environmental matters could be removed immediately afterwards.

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5.4. Since 2010, our civil rights have been consistently curtailed by Government in favour of a small, well-connected fossil fuels lobby…

That's a very long subtitle, but it's the easiest way to explicitly state the fact.

At the beginning of this section I outlined the "three guarantees of public safety" – licensing, planning and environmental permits. In that list I'll leave the issue of the Health and Safety Commission for the "super-regulator" discussion in section 8.2 later.

DECC/DCLG: 'Shale gas and oil policy statement by DECC and DCLG', 13th August 2015

The last time the Government comprehensively restated the policy framework[63] for on-shore oil and gas – following the passage of the Infrastructure Act (Box 4) – represented another, subtle whittling away of our rights to object: strict adherence to time-limits for considering applications was to be enforced; under-peforming councils were to be side-lined by the Government; at the same time ancillary operations, such as the drilling of monitoring boreholes, were to become permitted development.

Those powers have now become law as a result of recent amendments, empowered under the Infrastructure Act, being commenced under secondary legislation.

Objectively, certainly since David Cameron's 2012 speech, what we see is a deliberate attempt by the Government both to restrict our civil rights to be consulted on on-shore oil and gas development, and our rights to make certain arguments against it.

The ultimate guarantee has been that the requirement for planning permission has meant that local people would need to be consulted, and could object, if necessary/able, all the way to the High Court. That is what it is now proposed to abolish.

In that sense, the debate on the impacts of the Conservative manifesto on 'fracking' is not new. It can be seen as a continuation of the deliberate, planned and progressive erosion of our civil rights outlined by David Cameron in 2012.

The current proposal, to grant operations not considered 'fracking' permitted development rights, represents a large step-change in this process. To understand why, you must understand what the legal definition of 'fracking' is.

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6. What is a 'frac', what is a 'mini-frac', and what isn't 'fracking' at all?

Legislation UK: 'Infrastructure Act 2015'

The power of the Infrastructure Act 2015[64] isn't that it creates new law; it changes old laws in a co-ordinated way. This enables a general transformation of the law, often more significant than it first appears.

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6.1. Simple question, "what is fracking?"

DECC: 'What is shale gas?', August 2015

Oodles of science presentations and both for- and against-propaganda – and even DECC's own public information films[65] (which, incidentally, quite clearly states that "public consultation must take place") – will tell you that it's a process which injects water, some chemicals and sand into rocks, at high pressure, in order to liberate oil and gas.

That is NOT the definition in the Infrastructure Act.

The Infrastructure Act does not define the law. Instead it amends the Petroleum Act 1998, and it is the scope of that Act which defines what 'hydraulic fracturing' is.

Legislation UK: 'The Onshore Hydraulic Fracturing (Protected Areas) Regulations 2016'

It is this definition which is at the issue in this report (see Box 5). These amendments were passed in November 2015 in the The Onshore Hydraulic Fracturing (Protected Areas) Regulations 2016[66].

For "hydraulic fracturing", whether it is or is not 'fracking' for the purposes of the law depends upon how much fluid is used for each stage, and the total volume of the frack. Remember that the Petroleum Act controls how the PEDL licences, and the conditions or permissions which must be sought before work takes place, are controlled.

Section 4B of the Petroleum Act, while it matters to civil servants in the energy division of BEIS, doesn't matter at all to the civil servants in the town planning division of DCLG. That because, irrespective of size, 'fracking' is still classed as 'development'… at the present time.

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Box 5: 'Fracking' and the Infrastructure Act 2015

The Infrastructure Act 2015 is a complex piece of legislation, which deals with everything from privatizing roads to extinguishing footpaths.

Sections 43 to 48 were, in late 2014 and early 2015, the most controversial.

These granted 'access powers' to holders of PEDL licences to drill under people's property. Previously this would have been considered trespass under the civil law. These sections remove that liability.

The problem was that so many people focussed on the 'access rights' issue that they missed the deeper meaning of section 50 – with its misleading title, 'Onshore hydraulic fracturing: safeguards'.

Section 50 creates a new 'section '4B', which the Government lauded as a concession as it contained environmental conditions on drilling.

The problem is actually the new 'section 4B', entitled 'supplementary provision':

4B (1) "Associated hydraulic fracturing" means hydraulic fracturing of shale or strata encased in shale which –

  1. is carried out in connection with the use of the relevant well to search or bore for or get petroleum, and
  2. involves, or is expected to involve, the injection of –
    1. more than 1,000 cubic metres of fluid at each stage, or expected stage, of the hydraulic fracturing, or
    2. more than 10,000 cubic metres of fluid in total.

4B (8) These expressions have the meanings given – "hydraulic fracturing consent" has the meaning given in subsection (1)(b)

The Conservative Party's manifesto states:

Non-fracking drilling will be treated as permitted development.

So what is "not fracking?": It is any operation which doesn't meet the criteria of the new section 4B(1) of the Petroleum Act 1998.

And how many 'typical' unconventional drilling operations would NOT be covered by section 4B(1)? An analysis by Professor Stuart Haszeldine of University of Edinburgh suggests that:

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6.2. What is a 'mini-frac'?

Wikipedia: 'Hydraulic fracturing'

'Hydraulic fracturing'[67], as both the pro- and anti-propaganda articles point out, is:

"a well stimulation technique in which rock is fractured by a… 'fracking fluid' (primarily water, containing sand or other proppants suspended with the aid of thickening agents)… to create cracks in the deep-rock formations through which natural gas, petroleum, and brine will flow more freely."

As outlined in Box 5, that is not the definition which the Government adopted when drafting the Infrastructure Act.

Instead, the definition is based not upon what the process is, but how much fluid the process uses. In its propaganda the industry commonly conflates the process of hydraulic fracturing (HF) – which has been around for at least fifty years – with the high volume hydraulic fracturing (HVHF) which the industry uses for unconventional oil and gas.

By putting a specific volume of fluid in the legal definition it creates a boundary to determine whether the operation is 'fracking' or not – even though the process being carried out is the same. This is the origin of the term "mini-frac", which, in early 2015, the media and many campaign groups singularly failed to grasp in their focus on trespass rights.

The all important question is then, how much of the 'fracking' which might take place in Britain is in law, 'fracking'; and how much will be 'mini-fracs'?

Environmental Science and Technology: Water Footprint of Hydraulic Fracturing', Andrew Kondash and Avner Vengosh, vol.2 no10 pp.276-280, 2015

Table 1 shows data, from a recent research paper[68], for the median volume of recent fracking operations across a number of unconventional oil and gas fields in the USA. The 'median' figure is the value in the middle of all the data – so half of all the fracking operations will be less than that figure.

Clearly, many of those operations would, in UK law, be classed as 'mini-fracs' which did not required detailed examination under the law.

Guardian On-line: 'UK government's fracking definition 'could allow drilling without safeguards'', Damian Carrington, Wednesday 13th April 2016

According to an analysis[69], by University of Edinburgh geologist Professor Stuart Haszeldine, in England, under the Infrastructure Act:

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Table 1: Median Water Use in US Unconventional Oil and Gas Fields

(from Kondash & Vengosh, 2015)

fieldshale gasunconventional oil
Ml/wellm3/wellMl/wellm3/well
Bakken7.57500
Barnett14.414400
Eagle Ford13.7137001515000
Fayetteville2020000
Haynesville19.519500
Marcellus16.116100
Monterey-Temblor0.3300
Niobrara1.515001.31300
Permian33000
Woodford23.8238007.87800

The data above shows the variability of water consumption across different unconventional oil and gas basins in the USA.

The figures represent the ‘median’ value. That means that 50% of all the wells will be below the figure and 50% above. This helps to explain why a much higher proportion of unconventional oil wells will be permitted as a mini-frac than gas wells.

The limit under the amended Petroleum Act 1998 is 10,000 cubic metres (m3) per well.

Although the median figure for Eagle Ford oil wells is 15,000m3/well, a significant number would still qualify. In contrast the Niobrara, at 1,300m3/well, is likely to have most (but not all) of its wells meet that limit.

For gas wells the median figures are much higher, and so the wells which qualify as mini-fracs would be much lower. Again, in the Eagle Ford, though the median figure is over the limit at 13,700m3/well, is likely to have a minority of wells which could qualify as mini-fracs.

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6.3. What is not 'fracking'?

The difference between a 'frac' and a 'mini-frac' is all a matter of volume, even though they're the same technical operation. What is 'not' fracking is anything that doesn't meet the legal definition of the Petroleum Act 1998 – which potentially encompasses a lot more operations than just 'mini-fracs'.

Earthworks: 'Acidizing'

Top of the list of common non-fracking operations is matrix acidizing[70] (Box 6). This is not 'fracking' because it doesn't create fractures, it clears pore spaces. More specifically, it's designed for use in sandstone and carbonate rocks, not the 'shale' rock referred to in the drafting of the law.

Second is acid fracturing. This is a half-way matrix acidization/hydraulic fracturing operation. Acid is forced under pressure, but still not as high as that used in shale formations, or using anywhere near the volume of fluid, to force the acid deeper into the reservoir rock and open highly permeable pathways for gas or oil flow. It's still doesn't meet the legal definition as the volumes of fluid are lower, and the rocks are not 'shale'.

Sustainable Systems Research: 'Air Quality Impacts of Well Stimulation and Recommendations for the SB4 DEIR', March 2015

With either method, the emissions from the process can be damaging to the environment and human health – mainly because the risk primarily comes not from what goes down the hole, but from what the fluid mobilizes from deep under the ground. In particular, volatile organic compounds released to air[71], radioactive substances and heavy metals.

PlosOne: 'Comparison of chemical-use between hydraulic fracturing, acidizing, and routine oil and gas development', Stringfellow et al., vol.12 no.4 ref.e0175344, 19th April 2017

A recently published study[72] comparing the chemicals used in fracking and acidizing found that although the processes are distinct, they use many of the same chemicals. Therefore the environmental impacts are likely to have characteristics in common.

OilPrice: 'Does Acidizing Pose a Greater Threat to the Environment than Fracking?', Charles Kennedy, 13th August 2013

Another review[73] by campaign group in the Monterey shale area of California notes that the focus in campaign groups on 'fracking' is a distraction. That's because the rocks in that area are difficult to frack, but respond well to acidizing, and so talking about 'fracking' distracts from what the companies actually want to do.

The significance of 'non-fracking' well stimulation, primarily acidizing, is critical to certain areas where the conditions are best suited to that technology. Most prominent would be the Weald Basin, but also the 'tight' oil and gas sandstone basins, particularly in the North East of England.

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Box 6: 'Matrix Acidizing'

'Matrix acidizing' is not a new sequel in 'The Matrix' series of sci-fi/action films…

Matrix acidizing is a process of well stimulation for 'tight' wells in sandstone or carbonate rocks – not the shale rock used to source gas and oil.

In the UK, while 'fracking' might be used in most of the Bowland shale areas, matrix acidizing is more likely to be used in the sandstone Weald Basin in the South East, and perhaps the sandstone reservoirs of Yorkshire and Humberside.

While fracking 'cracks' the rock, acidizing 'burns' the rock, dissolving the calcium compounds which block the pore spaces between the sand grains of the rock 'matrix'. This allows gases and fluids to move through the 'tight' (i.e., congested pore spaces) rock more easily.

Matrix acidizing is NOT fracking – quite simply because it doesn't conform with the definition of 'associated hydraulic fracturing' under the new section 4B(1) of the Petroleum Act 1998.

It uses a lot less fluid (made-up of highly concentrated acids) than hydraulic fracturing, and does not involve the 'shale' rock referenced in section 4B(1) of the amended Petroleum Act.

In the USA hydrofluoric acid (HF)is commonly used. This is a corrosive and toxic substance, especially if it enters the environment or contaminates soil. Hydrochloric (HCl) acid is also commonly used, and while safer from a toxicological point of view, it still presents significant ecological hazards in the event of an uncontrolled release.

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7. What is 'planning permission' and what is 'permitted development'?

To understand the value of what we might be about to lose, you must first understand what it is – and how it works.

The effect of planning permission is not to take away people's property rights. Instead it requires that when land is 'developed' that they first get permission – to avoid any potential conflict with neighbouring land uses.

It is not possible for everything to have planning permission – the system would collapse!

For that reason the planning system has evolved two classes of development:

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7.1. Permitted development

There are certain "routine" operations – from the water company digging up the road, to railway companies putting up fences, to telephone companies putting up radio masts – which are classed a 'permitted development'.

Put simply, what the Conservative Party seek to do in their manifesto is class 'mini-fracs' and 'not-fracking' well stimulation operations as the same kind of development right which you use when you rebuild your garden fence.

What is or is not 'permitted' is defined in a very large statutory instrument[74], or SI, called The General Permitted Development Order[75] (GPDO).

Wikipedia: 'General Permitted Development Order'
LegislationUK: 'The Town and Country Planning (General Permitted Development) (England) Order 2015'

SIs are secondary legislation, which means they're written by government departments and pass through Parliament with only a minimum of scrutiny.

The last wholesale revision of the GPDO was in 2015[76], and it was amended in 2016. In order to enact their changes, all a newly elected Conservative Government would need to do is use secondary legislation to amend the GPDO, and a few other pieces of law, which define how the planning system works.

Each of the 19 Parts of Schedule 2 of the GPDO lists different 'classes' of development – each with certain criteria which limit the extent of the rights granted. Depending which class a development is in certain operations can be carried out as of right, without notice, while others require that the local authority be notified a minimum 21 days in advance of the work taking place.

Wikipedia: 'Article 4 Direction'

That does not mean that absolutely anything can be done without the objection of the local planning authority. When a council objects to specific GPDO operations they issue what is called an 'Article 4 direction'[77]. This is an order made under Article 4 of the GPDO which, for reasons of public protection or local environment and amenity, removes specific rights granted under the GPDO.

Part 17 of Schedule 2 of the GPDO relates to 'minerals' development. In Part 17, Class 'J' relates to seismic surveys and boreholes being drilled/ worked for less than 28 days, while Class 'K' relates to the same operations but without any time limit.

Currently Class K contains a prohibition for "the drilling of boreholes for petroleum exploration". That is why oil and gas exploration currently requires planning permission – because any oil and gas exploration are prohibited in the GPDO.

Finally, as noted above, where local councils have a problem with permitted development rights they can issue an Article 4 Direction to stop it. Local 'planning authorities' can't do that for Class K operations – it is specifically exempted.

Only 'minerals planning authorities' – usually the County Council or Unitary Borough – can remove permitted development rights under Class K of Part 17. This is done using an 'Article 5 Direction'. However it's rarely done, and in any case the Government can easily over-ride the objection if they wish (see Box 7).

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Box 7: Article 5 of the GPDO

Article 5 of the General Permitted Development Order 1995 (GPDO) allows 'minerals planning authorities' only to remove permitted development rights for Class K of Part 17.

Within 21 days of being notified the minerals planning authority must send a notice to those responsible for the works that their permitted rights have been withdrawn. At the same time they must also send notice to the Secretary of State at the Department Communities and Local Government (DCLG).

The issuing of an Article 5 Direction has to be justified using one of a number of conditions listed in Article 5(2) – please note highlighted text:

  1. the land on which the development is to be carried out is within –
    1. a National Park;
    2. an area of outstanding natural beauty;
    3. a site of archaeological interest;
    4. a site of special scientific interest; or
    5. the Broads;
  2. the development, either taken by itself or taken in conjunction with other development which is already being carried out in the area or in respect of which notification has been given under the provisions of Class K or M of Part 17 of Schedule 2 would cause serious detriment to the amenity of the area in which it is to be carried out or would adversely affect the setting of a Grade I listed building;
  3. the development would constitute a serious nuisance to the inhabitants of a nearby residential building, hospital or school; or
  4. the development would endanger aircraft using a nearby aerodrome.

Of course, having notified the DCLG, all the Government need do is use their powers under Article 5(5) to overturn the direction notice:

The Secretary of State may, at any time within a period of 28 days beginning with the date on which the direction is made, disallow the direction; and immediately upon receipt of notice in writing from the Secretary of State disallowing the direction, the mineral planning authority must give notice in writing, to the person who gave notice of the proposal, stating that the person is authorised to proceed with the development.

To a certain extent this is why local authorities are loathed to use Article 4/5 directions to stop controversial activities.

However, should the Government make unconventional oil and gas exploration/production 'permitted development', what would it say politically if all local minerals planning authorities issued Article 5 Directions? – so that Central Government would be forced to issue orders to allow 'fracking' to take place?

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7.2. Planning permission

Town and Country Planning Act 1990: 'Meaning of Development'
Wikipedia: 'Town and Country Planning Act 1990'

Section 55[78] of the Town and Country Planning Act 1990[79] states:

…"development," means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.

The reason 'permitted development' can take place is because of the exemption granted by section 57(5) of the Act:

Where by a development order or a local development order] planning permission to develop land has been granted subject to limitations, planning permission is not required for the use of that land…

Unless something is 'permitted development', it must have planning permission before it is allowed to go ahead. If not, then various powers exist to stop, control, or get the site restored – though often councils are loathd to use them as it means a lot of legal hassles.

GovUK: 'Consultation and pre-decision matters'
GovUK: 'Environmental Impact Assessment'

Once it has been determined that planning permission is required, certain things have to happen[80]:

The Town and Country Planning (Development Management Procedure) (England) Order 2015: 'Article 15'

The last of those – publicity – is where the problems lie. Where development has an EIA, or disagrees with the local plan, or affects a footpath, it must be publicised [Article 15(2) and (3)]. If it is classed as a 'major development' – which includes mineral workings or waste sites – then it must receive even more extensive publicity [Article 15(4) and (7)].

Ultimately the local guarantee of planning permission is not just that it gives local people a legal basis to object – all the way to the High Court if they are able. It also means that there is publicity, and plans and documents must be made available – making it easier to raise public awareness and contest the development locally.

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8. Public safety and removing the need for planning permission

As outlined in section 7, making oil and gas operations 'permitted development' is straightforward:

This is a highly 'political' process in Parliament:

The question is, why would MPs vote to allow this to take place?

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8.1. The guarantee of safety through planning

House of Commons Hansard: ' Draft Onshore Hydraulic Fracturing (Protected Areas) Regulations 2015', Column 1, 27th October 2015
House of Lords Hansard: ' Onshore Hydraulic Fracturing (Protected Areas) Regulations 2015', Volume 767 Column 100, 24th November 2015

What's significant here is that on so many occasions over the last five years, successive MPs and ministers have repeatedly talked about the protection and the importance of planning permission.

In the latest round of official statements – during the debates in the Commons[83] and the Lords[84] on the regulations which implemented section 50 of the Infrastructure Act, and the later debate[85] which restricted where 'fracking' could take place (see Box 8) – the integral role of the planning system as a public safeguard was repeated by ministers.

House of Commons Hansard: ' Petroleum Licensing (Exploration and Production) (Landward Areas) (Amendment) (England and Wales) Regulations 2016', Column 1, 1st March 2017

If ministers have claimed so many times that the requirement for planning permissions represents an essential protection for the public, how can they now decide to remove the need for planning permission?

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Box 8: The 'planning system' and the Infrastructure Act section 50

The new section 4B of the Petroleum Act was introduced through the Onshore Hydraulic Fracturing (Protected Areas) Regulations 2015.

During the debate on the regulations the Environment Secretary, Andrea Leadsom, stated:

As part of the licence, permission and permit procedures, the environmental impact and any risks associated with operations are assessed by regulators and through the planning system on a case-by-case basis. All oil and gas sites need permits under the Environmental Permitting (England and Wales) Regulations 2010, as well as planning permission from the relevant planning authority. The national planning policy framework and supporting practice guidance state that, in respect of minerals such as shale oil and gas, any new development should be appropriate for its location. Let me be very clear: if the risks of a proposed shale activity are deemed unacceptable, the environmental regulators will not allow that activity to go ahead, irrespective of the geographic area or the depth of the drilling.

The Onshore Hydraulic Fracturing Regulations were passed later that day.

The Petroleum Licensing (Exploration & Production) (Landward Areas) (Amendment) (England & Wales) Regulations 2016 amended the law on PEDL licences to restrict where fracking could take place.

On the 1st March 2017, BEIS minister Jesse Norman stated in the debate on the regulations:

On the points raised by my right hon. Friend the Member for Arundel and South Downs, and the hon. Member for Garston and Halewood, my right hon. Friend eloquently described the importance of drawing a distinction between conventional drilling and hydraulic fracturing. It is important that we do not get caught up in nomenclature.

The Government's intention is clear: to prohibit what we would describe as hydraulic fracking. There may be conventional, low-scale operations; they are not covered by the regulations. The purpose of the regulations is not to cover those, because there are other protections in the system that configure themselves to local circumstances, including protections in planning permission. It is important not to rule out those things that may have very beneficial local and community effects.

The Government's overall intention is clear. In particular, it is clear that small-scale operations should meet an equivalent range of safeguards to those set out in section 4 of the Petroleum Act 1998.

The Petroleum Licensing Regulations were passed later that day.

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8.2. The fracking "super-regulator"

The guarantee the Conservative manifesto appears to offer is the creation of a 'super-regulator' to guarantee the public's safety:

We will set up a new Shale Environmental Regulator, which will assume the relevant functions of the Health and Safety Executive, the Environment Agency and the Department for Business, Energy and Industrial Strategy. This will provide clear governance and accountability, become a source of expertise, and allow decisions to be made fairly but swiftly.

History suggests this ambition will fail.

Until the creation of the Environment Agency in 1996, environmental regulation was split between:

New Scientist: 'Ministers reject call for a 'British EPA'', 6th May 1989

HMIP was criticized[86] because of its closeness to Government, in particular for its lax regulation of certain industries, and its low level of inspections. It was run from a handful of small offices around Britain, and had a very close relationship with the industries it policed – but an extremely remote relationship to the public whom it was charged to protect.

New Scientist: 'HMPI and integrated pollution control', Jon Tinker, 22nd January 1976

As history repeated itself, the Environment Agency was set-up following the same criticisms of HMIP, as HMIP was set-up to replace its highly criticized predecessor, The Alkali Inspectorate[87].

What the Conservative Manifesto effectively advocates is the recreation of HMIP, specifically to look after onshore oil and gas; and just like HMIP before it, it will be closely controlled by the political priorities of Government's fossil fuel agenda.

What is also significant here is that the UK is proposing to host many more wells per pad.

Science of the Total Environment: 'An assessment of the footprint and carrying capacity of oil and gas well sites – The implications for limiting hydrocarbon reserves,' Clancy et al., 2017

Recent research[88] indicated that in the US the average pad in the Marcellus has between 2 and 4 wells per pad; in the UK Cuadrilla are proposing to have 10 wells per pad.

The fact that a 10 well pad could conceivably be operated under permitted development rights, scaling up the level of environmental impact from the site, without any local oversight of the conditions applied to its operation, should give the public great cause for concern.

DECC: 'About shale gas and hydraulic fracturing', 30th July 2013

It's a complete negation of the local protections promised[89] when the Coalition Government first began promoting shale gas in 2011/12.

Wikipedia: 'Exemptions for hydraulic fracturing under United States federal law'

There is a precedent in the history of oil and gas extraction for the policies outlines in the Conservative manifesto. These proposals are the British equivalent of the "Halliburton Exemption"[90].

In 2005, George W. Bush exempted hydraulic fracturing from a range of US environmental laws – from the Clean Air Act and the Clean Water Act to the Community Right-to-Know Act.

Merging ALL the regulatory functions for on-shore oil and gas into one regulator is not a matter of removing the industry from regulation; but rather of creating a closely controlled and more amenable 'buffer' between the industry and regulation.

Previous experience in Britain, and the example of the USA, would suggest that creating a fracking 'super-regulator is not about protecting the public from fracking. It's inherently about protecting the 'frackers' from the public.

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9. Which areas are affected by these changes?

Paul Mobbs/MEI: 'Fracktured Accountability – A study of political decision-making and unconventional fossil fuel interests', August 2015

This is a political issue. Not simply because this discussion is sparked by an election manifesto. It's because our Government is failing, and in certain ways is acting unlawfully[91], by failing in its 'duty of care' to the public.

In order to address this, politicians, of whatever party, need to understand how this issue affects their constituents.

In Britain there are currently 650 MPs, representing 650 constituencies.

Discounting Scotland and Northern Ireland, of those 650 constituencies:

Map 1 showed PEDL licences across Britain. Discounting Scotland, Boxes 9 to 12 below divide that map into four regions – also listing constituencies as well as giving a larger map.

For each region the constituencies covered by a PEDLs are listed (note, those with the '§' character are completely covered) – grouped by county or borough in order to make them easier to find.

There is also a map showing the PEDL licences as red blocks, and the constituency boundaries in outline, in each of the four regions:

Note, the following counties/unitary areas have NO constituencies covered by current PEDLs:

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Box 9: PEDL-affected constituencies in the North West and North Wales

The following is a list of Parliamentary constituencies, listed by county, which are covered by a current PEDL licence. Those with a '§' character are completely covered.

The area is shown in the map below.

PEDL-affected constituencies in the North West and North Wales
UK PEDLs map: PEDL-affected constituencies in the North West and North Wales
click to download larger image

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Box 10: PEDL-affected constituencies in the North East and East Midlands

The following is a list of Parliamentary constituencies, listed by county, which are covered by a current PEDL licence. Those with a '§' character are completely covered.

The area is shown in the map below.

PEDL-affected constituencies in the North East and East Midlands
UK PEDLs map: PEDL-affected constituencies in the North West and North Wales
click to download larger image

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Box 11: PEDL-affected constituencies in the South East and South

The following is a list of Parliamentary constituencies, listed by county, which are covered by a current PEDL licence. Those with a '§' character are completely covered.

The area is shown in the map below.

PEDL-affected constituencies in the South East and South
UK PEDLs map: PEDL-affected constituencies in the North West and North Wales
click to download larger image

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Box 12: PEDL-affected constituencies in the South West and South Wales

The following is a list of Parliamentary constituencies, listed by county, which are covered by a current PEDL licence. Those with a '§' character are completely covered.

The area is shown in the map below.

PEDL-affected constituencies in the South West and South Wales
UK PEDLs map: PEDL-affected constituencies in the North West and North Wales
click to download larger image

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In conclusion… this is no longer just about fracking, it's become a struggle for our long-won civil rights

When government's consistently break their promises, and work on behalf of minority interests – largely for their own personal aggrandisement (usually after they retire) – then that is not the fault of the politicians… it is the fault of the electorate.

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This is an ideological problem

Fracking is another issue alongside the 'big white whale' of Brexit. As Brexit has been driven by the ideological right, so has fracking – and the down-playing of climate change that it is often justified by.

The 'right' of British politics is determined, whatever the complex obstacles in front of them, to create their ideal 'free trade' post-Brexit Britain. And like Ahab in that famous tale Moby Dick, they're determined to push us all into that ideologically neo-liberal economic future, irrespective of what any nay-sayers or experts[92] might say.

Fracking is just the most notable, and public example of that trend right now. Equally we could look at some of the recent, more ecologically damaging intensive models of agriculture[93] being proposed for Britain. Or the right-wing's distaste of anything to do with climate change and climate adaptation.

As noted in this report, post-Brexit, once we lose that external check on the right-wing's power over our civil rights, it's not only 'fracking' that is likely to get special treatment. In the worst of all possible worlds, a free trade deal with the US based on the USA's trade standards, many aspects of our economic and social life could be quickly dismantled.

For example, returning to the Infrastructure Act, other parts of the Act are a stepping stone to greater privatization of public services, especially roads.

Healthcare has already, through the Health and Social Care Act 2012, been configured ready for gradual privatization – which some see as a factor in the gradual staving of funding from the NHS.

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What drives this is allure of lobby groups

Imagine you're a rich executive. A new progressive idea is likely to make life difficult, and cost you a few million of your wealth or business power.

If a bright person in a suit – who you've probably been introduced to by an acquaintance – turns up one day and says, "for a hundred thousand I could stop that happening for a few years and save you a million". What would you do?

Wikipedia: 'Doubt is Their Product'

That is the allure of lobbying for 'the one percent'. It creates a space of public doubt and uncertainty[94] where "business as usual" can continue unabated.

Fracking, if you choose to delve into the detail, is an exemplar for how the power of lobby groups in the UK politics is becoming injurious to democracy.

For example, Chris Smith: chairman of the Environment Agency; tried to fix the permitting system for fracking; before leaving to be the paid chair an "impartial", industry-backed 'Task Force on Shale Gas' think tank; which ultimately said fracking was great.

Paul Mobbs/MEI: ''Behind every picture lies a story' – statistical reality versus PR-hype within the political project of unconventional gas in Britain', Mobbsey's Musings, 25th July 2013
Paul Mobbs/MEI: 'The Frackogram 2015', March 2015

In 2012 I began mapping the lobby groups within the UK fracking debate. My first description in 2013[95] contained about 40 notable data points; my final work in 2015, also known as 'The Frackogram'[96], contained almost 2000 data points.

You could do similar diagrams for the healthcare, armaments or finance industries in Britain, linking similar groups in politics, academia and business.

Like the US, we are creating of 'pay-per-view' politicians with corporate sponsored ideas – and that is highly corrosive to our democracy.

Guardian On-line: 'Does UK's lucrative arms trade come at the cost of political repression?', Jamie Doward, 12th February 2017

Fracking is arguably not the worst offender either – it's just the most publicly visible at present. Arms sales to Saudi Arabia[97] are another good example.

Talk Fracking: 'Arrest the Cabinet', March 2015

When I produced 'The Frackogram' in 2015 it was to support my effort to 'Arrest the Cabinet'[98]. My research meant that the subsequent court case was dropped just before the trial.

This is where must focus our effort. 'Democracy' is not will of the majority; it is the protection of the individual from an overbearing state.

We must challenge the power of lobby groups and their hold over politics. The best way to do that is to highlight their existence, and their mercenary role in stifling progressive change.

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Don't just focus on the next week; think what happens beyond the election

Right now, in the absurd, pay-per-view atmosphere of the general election campaign, there can be no open and objective discussion of the issues outlined in this report.

That is in part because the major parties don't want to discuss complex issues during elections. Their focus is on short and simple sound-bites that can't be dissembled by the opposing spin-doctors.

It is also because the current media environment – especially the format of 24-hour rolling news and competing on-line pay-per-click social media – cannot handle 'complex' issues.

Do not read this report and assume it is an attempt to influence the outcome of the election – though that would certainly be welcome.

Instead think on this report as outlining the information and links required to carry forward a process after the election concludes with – as many polls and pundits have forecast – a win by the Conservative Party.

That's because, when there is time for 'real' discussion after all the current 'electoral absurdities', the newly elected MPs in those 176 constituencies affected by PEDL licences may have a greater interest in terms like 'mini-frac' and 'permitted development'.

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