A bunch of ideologues in search of the 'Great White Whale'
of growth… and willing to take the rest of us with them
into ecological armageddon?
Written for Talk Fracking.
To download a copy of "The 'Fracking' Election" report, goto ecolonomics 17
Very few electors read manifestos, let alone debate the detail of them. That's a pity, as it might change the nature of the tired debates we see at every election.
For this week's general election, the Conservative Party's manifesto outlines a sharp break in British planning and environmental policy of a scale not seen since the 1980s.
Ostensibly their aim is to make 'fracking' require more exacting regulation.
That sounds really great in theory. In practice it depends what your legal definition of 'fracking' is.
In Britain, elections are probably the worst method by which we try to decide complex issues.
That centres on the Conservative's claim, repeated in their manifesto for this election, that fracking produces gas that is "cleaner than coal".
During the election campaign, while some media have covered the 'permitted development' issue, nearly all have missed the nuances of 'definition' behind the policy – and thus its practical implications.
For example, if government ministers systematically override local councils and regulators on fracking, imposing their will directly on the public, does making fracking permitted development really make a difference in the end? The results would be the same.
First and foremost – this is an English problem.
Scotland currently has a moratorium on unconventional oil and gas development. Wales has a bar in planning law, but can't actually control Whitehall's licensing powers.
'Fracking', more than any other current issue, shows the 'gulf of unreasonableness' that has arisen between England and the other home nations. And in the current election, those differences will become more stark if the Conservative Government is re-elected.
The real damage here is not the 'permitted development' angle.
It's how the exemptions recently enacted as part of the Infrastructure Act 2015 combine with permitted development and another, seemingly throw-away statement in the manifesto:
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.
Previous experience in Britain – especially with the discredited precursor to today's Environment Agency, Her Majesty's Inspectorate of Pollution – 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.
The policy not only relaxes planning control, it also make the regulation of unconventional oil and gas in general more remote from the public – in effect, creating an English 'Halliburton Exemption' for the on-shore industry.
After the anomalous Infrastructure Act had been passed the Government's position was that:
The Government is committed to ensuring that local communities are fully involved in planning decisions that affect them.
The Conservative manifesto appears to echo that sentiment somewhat.
However, what this all comes down to are legal definitions – again, something seldom discussed during general election campaigns.
Currently planning law states, in section 55 of the Town and Country Planning Act, that all "development" needs planning permission. The exception, granted through section 57, is where a development has been granted 'permitted development rights' by the Government nationally.
These exemptions are enacted in each home nation through the General Permitted Development Order, or 'GPDO' – which is why England differs from Wales and Scotland.
Currently the GPDO in England allows certain rights for minerals development, but excludes 'petroleum' operations.
All a new Conservative Government need do is abolish those exemptions – job done.
Even if that change is made, local minerals planning authorities could theoretically overturn permitted development rights using what's called an 'Article 5' notice.
In practice though there's little point as the Government could instantly over-ride the notice – but it would be a wonderfully political campaign tactic, forcing the government to impose drilling directly over local official objections.
What the Conservative manifesto states is:
We will legislate to change planning law for shale applications. Non-fracking drilling will be treated as permitted development.
That echoes the position of the Government, as expressed by the Business Minister, Jesse Norman, during the debate on the regulations enacting the Infrastructure Act:
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.
There's a humongous amount of information available which pretty much agrees what 'fracking' is; blasting water, sand and chemicals into rock at high pressure to release oil and gas.
That is NOT the Government's definition, introduced into law via section 50 of the Infrastructure Act. What that states is:
"Associated hydraulic fracturing" means hydraulic fracturing of shale or strata encased in shale which –
During the passage of the Infrastructure Act campaigners and the media were focussed on the debate over deep drilling access.
As with today's simplistic focus on 'permitted development', that was not where the real story was at the time – and the debate over 'trespass' worked brilliantly for the industry, allowing the government's loose definition of 'fracking' to slip through.
The problem was that by adding a volume to the definition, the Government created a situation where the same operation – 'fracking' – could legally be defined as not to constitute 'fracking' at all.
Sir Humphrey Appleby would be proud!
At the time, those of us looking at the detail started to use the term "mini-frac". That is, any fracking operation which doesn't meet that 1,000 or 10,000 cubic metre definition.
The law also talks of "fracturing of shale or strata encased in shale". There are a number of potential oil and gas recovery techniques which don't require the 'fracturing' of shale at all.
That's significant in The Weald Basin where operators are using 'matrix acidizing' – injecting acid to dissolve, not fracture the rock to recover oil. As recent research studies have shown, just because it's not 'fracking' doesn't mean that the chemicals used in acidizing are any less toxic.
A study published in 2015 looked at water consumption in well stimulation in the USA. The data shows the median figures for water consumption, and offers a sobering view of what might happen here.
In some regions a small proportion of fracked gas wells would not meet the Government's definition of fracking, while in others a much greater number would. For oil wells the water consumption is much lower, so the numbers not meeting the definition would be much higher.
This correlates to the recent analysis by the University of Edinburgh geologist, Professor Stuart Haszeldine.
In his view:
Two-fifths of gas wells across England not requiring planing permission?
Perhaps four-fifths of oil wells?
Thing is, this is not just about permitted development.
Those two-fifths/four-fifths of wells would also encounter next to no regulation when the powers of the Environment Agency have been spirited-away to the new 'super-regulator' – again, because of that loose Government definition.
For those who used to work on pollution issues before the 1990s, that's the real concern. The Conservatives are resurrecting the 'Victorian' spectre of the old HMIP and Alkali Inspectorate to govern on-shore oil and gas drilling.
In 2012 David Cameron gave a speech to the CBI. I absolutely urge you to read the core of that speech because it helps you make sense of recent Government actions.
In the speech he outlined a strategy whereby the Government was going to cut back on judicial review, reduce consultation, streamline European legislation, and restrict the 'gold-plating' of domestic legislation – and force Whitehall to cut corners in achieving that process.
Pretty much that whole agenda was completed by 2014. The machinations around 'fracking' have been an intimate part of it.
What's worse today is 'Brexit' – but again, people are not really talking about why.
At present we have certain rights to be consulted made under international obligations. The Government cannot override them.
For example, making drilling 'permitted development' removes out right to be consulted on planning locally. In fact permitted development does not require ANY local publicity at all.
However the Environment Agency must still consult the public on environmental permits – it's required by the Aarhus Convention.
A 'hard Brexit' would remove the Government's need to obey not only EU law, but also Council of Europe (CoE) and UN Economic Commission for Europe (UNECE) treaties – which require both public consultation, and access to 'environmental justice' to redress any harms caused.
When I look at fracking as a 'lobby', I see it is as part of the greater 'Brexit' concept.
An ideological campaign by those who chase economic growth like Ahab chased his white whale – and we are all just as expendable as Ahab's crew in that cause. And given the evidence we have, we know in the case of 'fracking' that this crusade is just as futile.
After eight years working on this issue, and trying to engage politicians and civil servants in a dialogue on the evidence, I now feel that any hope of 'persuasion' on 'fracking' has passed. Whitehall now works to a very different, inward-looking agenda. Now we must organize to resist what that agenda brings, should the Conservative Party win on Friday morning.