AN COMHCHOISTE UM
CHUMARSÁID, GNÍOMHÚ AR SON NA HAERÁIDE
AGUS COMHSHAOL
JOINT COMMITTEE ON
COMMUNICATIONS, CLIMATE ACTION
AND ENVIRONMENT
DRAFT PUBLIC CONSULTATION
ON THE
PROHIBITION OF THE EXPLORATION AND EXTRACTION
OF ONSHORE PETROLEUM BILL 2016
AND
THE EPA LED JOINT RESEARCH PROGRAMME
ON THE IMPACTS OF
HYDRAULIC FRACTURING
ON THE
ENVIRONMENT AND HUMAN HEALTH 2016
REVISED CLOSING DATE: FRIDAY 10 FEBRUARY 2017
Monday 30 January 2017
Public Consultation on UGEE
TABLE OF CONTENTS
1.
Introduction ...................................................................................................................................... 4
1.1.
Public Consultation ................................................................................................................ 4
1.2.
Themes ...................................................................................................................................... 4
1.3.
Making Submissions ............................................................................................................. 5
1.4.
Format of Submissions ........................................................................................................ 5
1.5.
Making a submission is a public process ...................................................................... 6
1.6.
Closing Date............................................................................................................................. 6
1.7.
Web site..................................................................................................................................... 6
1.8.
Queries....................................................................................................................................... 7
2.
Background ....................................................................................................................................... 8
2.1.
UGEE ........................................................................................................................................... 8
Prohibition of hydraulic fracturing or fracking – Private Members Business in the Dáil, Thursday 27th
October 2016 ..................................................................................................................................................... 8
The Bill ........................................................................................................................................................ 8
Fracking & potential environmental concerns ............................................................................. 8
Environmental Protection Agency Fracking Report ................................................................... 9
Future trends .............................................................................................................................................. 10
SWAN Report ......................................................................................................................................... 11
US EPA report ........................................................................................................................................ 11
Other countries ..................................................................................................................................... 11
Unconventional Gas Exploration & Extraction (UGEE) ................................................................................ 12
Trade Agreements ....................................................................................................................................... 14
Amendment to Motion for Second Reading (not moved) ............................................................................... 16
Theme 1: Bill .................................................................................................................................................... 17
Interpretation.............................................................................................................................................. 17
Prohibition .................................................................................................................................................. 17
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Public Consultation on UGEE
Short title .................................................................................................................................................... 17
Questions arising: ........................................................................................................................................ 18
Theme 2: Legal issues ...................................................................................................................................... 19
Questions arising: ........................................................................................................................................ 20
Theme 3: Constitutional Issues ........................................................................................................................ 21
Questions arising: ........................................................................................................................................ 22
Theme 4: North – South Issues ........................................................................................................................ 23
Questions arising: ........................................................................................................................................ 23
Theme 5: EPA report – general ........................................................................................................................ 24
Questions arising: ........................................................................................................................................ 25
Theme 6: EPA Report - Water .......................................................................................................................... 26
Groundwater, surface water and associated eco-systems ......................................................................... 26
Seismicity .................................................................................................................................................... 26
Air Quality ................................................................................................................................................... 27
Questions arising: ........................................................................................................................................ 28
Theme 7: EPA Report – Impacts and Mitigation Measures ............................................................................. 30
Questions arising: ........................................................................................................................................ 30
Theme 8: EPA Report – Regulatory Framework .............................................................................................. 31
Questions arising: ........................................................................................................................................ 31
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1. INTRODUCTION
1.1.
PUBLIC CONSULTATION
The Joint Committee is carrying out a public consultation ON THE PROHIBITION OF THE
EXPLORATION AND EXTRACTION OF ONSHORE PETROLEUM BILL 2016
AND
THE EPA LED JOINT RESEARCH PROGRAMME ON THE IMPACTS OF HYDRAULIC
FRACTURING ON THE ENVIRONMENT AND HUMAN HEALTH 2016
You are invited to read the bill, explanatory memorandum and other documents, and
consider the themes listed below.
1.2.
THEMES
Theme 1: Bill
Theme 2: Legal issues
Theme 3: Constitutional Issues
Theme 4: North – South Issues
Theme 5: EPA report – general
Theme 6: EPA report - Water

Ground Water

Surface Water

Associated Ecosystems

Seismicity

Air Quality
Theme 7 EPA report - Impacts and Mitigation Measures
Theme 8 EPA report - Regulatory Framework
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1.3.
MAKING SUBMISSIONS
Written submissions and communications should be sent by email to:
[email protected] and / or by post to:
The Clerk
Joint Committee on Communications, Climate Action and Environment
Houses of the Oireachtas
Leinster House
Kildare Street
Dublin 2
D02 XR20
Ireland
Submissions should be received not later than the closing date below.
The Committee will consider any suitable written submissions received and may decide
to invite a number of contributors to public hearings should it be considered necessary.
Submissions and communications should only be sent to the email address above and
not to individual members of the Committee.
Please note that the Clerk will ensure that all members of the Committee receive, in due
course, copies of all submissions and communications received.
1.4.
FORMAT OF SUBMISSIONS
GUIDELINES
As a general guideline, submissions should consist of:

a covering letter (email or email attachment in MS Word or equivalent);

a main submission document (email or email attachment in MS Word or
equivalent).
The covering letter should contain your name and contact details (phone number and
postal address and, if available, an email address). If the submission is on behalf of an
organisation, you should indicate your position in the organisation. If your submission is
on behalf of another organisation, please make this clear in your letter.
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DETAILS TO BE CONTAINED IN SUBMISSIONS
The main submission document should contain the following information:
1. Your name;
2. A brief introduction, for example, explaining your area of expertise;
3. Any factual information that you have to offer from which the Committee might
be able to draw conclusions, or which could be put to other parties for their
reactions;
4. Any recommendations to the Committee which should be as specific as
possible and should be summarised at the end of the document;
5. An executive summary of the main points made in the submission, if your
document is more than 10 pages long;
6. Whether you would be prepared to appear at a public session of the
committee.
1.5.
MAKING A SUBMISSION IS A PUBLIC PROCESS
The Committee is not obliged to accept your document once it has been submitted, nor
is it obliged to publish any or all of the submissions if it has received or accepted.
However, the operation of a parliament is a public process, and you should be aware
that any submissions made to a Committee may be published either as part of a
Committee report, or separately, if the Committee decides to do so.
1.6.
CLOSING DATE
The revised closing date for receipt of submissions will be Friday 10 February 2017.
Late submissions will be circulated to the committee, but there is no guarantee that they
will be taken into account when the committee is considering its report.
1.7.
WEB SITE
The committee has set up a web site for this public consultation including links to
relevant documents and the full text of committee meetings.
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1.8.
QUERIES
Should you have any queries in relation to this matter, please email:
[email protected]
or contact:

Leo Bollins, Clerk to the Committee, at 01 618 3575
or

Jack Nugent, Policy Advisor, at 01 618 3529
or

Lisa Kiely, Junior Clerk, at 01 618 4053
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2. BACKGROUND
2.1.
UGEE
PROHIBITION OF HYDRAULIC FRACTURING OR FRACKING – PRIVATE MEMBERS
BUSINESS IN THE DÁIL, THURSDAY 27TH OCTOBER 2016
Prohibition of the Exploration and Extraction of Onshore Petroleum Bill 2016
THE BILL
The Explanatory Memorandum states that the bill proposes “the prohibition of any
exploration or extraction of petroleum from rock that requires additional processes to
increase the permeability of the rock and aid in the extraction of petroleum from
lithologies, the shale rock, tight sands and coal seams.” According to the explanatory
memo this includes but is not limited to the process of hydraulic fracturing or fracking.
FRACKING & POTENTIAL ENVIRONMENTAL CONCER NS
“Hydraulic fracturing, or ‘fracking’, is a method used by drilling engineers to stimulate or
improve fluid flow from rocks in the subsurface. In brief, the technique involves pumping
a water-rich fluid into a borehole until the fluid pressure at depth causes the rock to
fracture… After the fracking job, the pressure in the well is dropped and the water
containing released natural gas flows back to the well head at the surface.” (David Healy
2012)
There has been a recent surge in the exploitation of shale gas by fracking. This is due in
part to the fact that fracking, in combination with advanced directional drilling
techniques has made it possible to economically extract oil and gas from unconventional
resources, such as shale, tight formations, and coalbeds (US EPA 2015). However, this
method may pose risks. According to Healy (2012), concerns raised in the media, and to
a much lesser extent in scientific literature, relate to potential environmental impacts
from fracking and include:

Earthquakes;

Pollution of groundwater and subsequently, potential pollution of drinking water;

Emissions of greenhouse gases including methane; and

Leakage of contaminated drilling waste fluid from storage ponds.
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ENVIRONMENTAL PROTECTION AGENCY FRACKING REPORT
In 2011, the Environmental Protection Agency (EPA) was requested by Mr. Pat Rabbitte
TD, the then Minister for Communications, Energy and Natural Resources, to
commission and coordinate the management of research in relation to the
environmental impacts of Unconventional Gas Exploration & Extraction (UGEE) (EPA
2015). The UGEE research project is funded by the EPA, the Department of
Communications, Climate Action and Environment (formerly the Department of
Communications, Energy and Natural Resources) and the Northern Ireland Environment
Agency.
In 2012 the EPA published a preliminary report on the potential environmental and
human health impacts of fracking, ‘Hydraulic Fracturing or ‘Fracking’: A Short Summary
of Current Knowledge and Potential Environmental Impacts’ (David Healy 2012).
In 2014, the EPA held a public consultation on the Terms of Reference for the UGEE
research project. In August 2014, a contract was awarded to a consortium led by CDM
Smith Ireland Limited for a 24-month research programme looking at the potential
impacts on the environment and human health from UGEE projects and operations
(including construction, operation and aftercare). The research programme comprises
five projects involving environmental field studies, such as baseline monitoring of water
and seismicity and an extensive desk-based literature review of UGEE practices
worldwide (EPA 2016). The research project is scheduled for completion by the end of
the year. Status updates are available on the EPA website here.
Regarding the UGEE research project, “no fracking will be undertaken as part of the
research programme” (EPA 2016a) and according to the Department “no decisions will
be made on any proposal for the use of hydraulic fracturing in exploration drilling as part
of an unconventional gas exploration programme, until there has been time to consider
the outcome of the research programme” (Department of Communications, Climate
Action and Environment 2016).
During the second stage debate in Dáil Éireann on 27 October on the Prohibition of the
Exploration and Extraction of Onshore Petroleum Bill 2016, the Minister for
Communications, Climate Action and Environment, Denis Naughten TD indicated his
strong view that the work of the Oireachtas Committee on Communications, Climate
Action and Environment in respect of the Bill would be considerably aided and advanced
by being able to consider the outcome of the Environmental Protection Agency led Joint
Research Programme on the Impacts of Hydraulic Fracturing on the Environment and
Human Health.
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The Report of the Environmental Protection Agency led Joint Research Programme was
published on 30 November 2016, in the following parts:

Integrated Synthesis Report

Summary Report 1: Baseline Characterisation of Groundwater, Surface Water and
Aquatic Ecosystems

Summary Report 2: Baseline Characterisation of Seismicity

Summary Report 3: Baseline Characterisation of Air Quality

Summary Report 4: Impacts and Mitigation Measures

Summary Report 5: Regulatory Framework for Environmental Protection
The full suite of documents associated with Report of the Environmental Protection
Agency led Joint Research Programme can be accessed at:
http://www.epa.ie/pubs/reports/research/ugeejointresearchprogramme/
FUTURE TRENDS
The Government (2011-2016) published its White Paper on Energy, Ireland’s transition
to a low carbon energy future in December 2015 which commits Ireland to radically
reducing our dependence on fossil fuels and also our greenhouse gas emissions by 2050.
The paper acknowledges however, that oil and gas will continue to play a role in
Ireland’s energy mix well into this century, albeit on a declining basis over time.
Ireland’s indigenous natural gas supply will play an important role in our security of
supply. It is expected that at peak production, gas from the Corrib field will provide up to
42% of our natural gas needs over the first two years of operation.
The White Paper on Energy refers to the EPA study on UGEE and states that no policy
decision on fracking will be made prior to the publication of the research findings. It
further acknowledges that any decision will be taken in the context of the aim of
reaching zero carbon emissions by 2050.
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SWAN REPORT
The Sustainable Water Network (SWAN) is an umbrella network of 26 of Ireland’s leading
environmental NGOs. On 25th October 2016 SWAN published the report, HYDRAULIC
FRACTURING ─ INTERACTIONS WITH THE WATER FRAMEWORK DIRECTIVE &
GROUNDWATER DIRECTIVE AND IMPLICATIONS FOR THE STATUS OF IRELAND’S
WATERS. The report found that fracking for shale gas is incompatible with good water
quality and recommended its prohibition in Ireland.
US EPA REPORT
Fracking is widely used in the States and is responsible for the fall in US gas prices due
to the increase in domestic gas production. However, environmental concerns have led
to some controversy.
The US Congress urged the US EPA to study the relationship between fracking and
drinking water. In 2015 the EPA published their draft report, THE ASSESSMENT OF THE
POTENTIAL IMPACTS OF HYDRAULIC FRACTURING FOR OIL AND GAS ON DRINKING
WATER RESOURCES (EXTERNAL REVIEW DRAFT). The report concluded that there
“there are above and below ground mechanisms by which hydraulic fracturing activities
have the potential to impact drinking water resources”. However, they also noted that
“We did not find evidence that these mechanisms have led to widespread, systemic
impacts on drinking water resources in the United States.” (Taken from the Executive
Summary page 6).
However, in the final version of the report, this conclusion has been removed on the
grounds that the claim “could not be quantitatively supported” by the EPA scientists
involved in the research. (New York Times, 13th December 2016).
OTHER COUNTRIES
Fracking was banned in France in 2011 in response to pressure from environmental
groups. While the previous and current UK Governments have been in favour of it,
fracking in the UK was suspended in 2011 when drilling near Blackpool caused mini
earthquakes. While the moratorium was lifted in 2012, many fracking applications have
been turned down. However, earlier this month the Government overruled a council
decision to block oil and gas company Cuadrilla carrying out test drilling in Lancashire
(Equal Times, 26 October 2016). The moratorium remains in place in Scotland and Wales
and fracking is currently banned in Northern Ireland (Belfast Telegraph, 28th September
2015).
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UNCONVENTIONAL GAS EXPLORATION & EXTRACTION (UGEE)
Ireland is a country that is rich in sedimentary rocks, such as shale. Shale, in particular,
can be exploited in such a way so as to produce natural gas. Given that the international
oil and gas markets are often unstable for various reasons, exploitation of such gas
represents an opportunity for governments to ensure that their energy needs are met,
while exploration firms are keen to find new resources to bring to the market.
Shale gas is usually exploited through a method known as hydraulic fracturing, or as it is
more commonly known, fracking. The process, essentially, involves injecting a mixture
of water, small particles known as proppant, and often chemicals down a gas or oil well
where the sheer pressure will crack apart (fracture) the rocks inside, releasing trapped
oil and gas that can flow to the surface and be captured.
A report commissioned by the Environmental Protection Agency (EPA) in 2012, which will
come under the aegis of the Department, 1 explored fracking, with particular emphasis on
the challenges presented by the process. 2 The report used information gathered in the
United States and the United Kingdom in an attempt to shed some light on the process.
The most serious environmental concern, according to the report, is that of ground water
contamination.3 The potential risk to ground water has been documented as coming from
two sources: the injected fluid (water + chemical additives) and the released natural
gas. However, the report had the following to say on the matter:
There may be an element of confusion in the media and in the wider
public understanding, between contamination incidents from coal bed
methane (or coal seam gas) fracking jobs, which occur at a relatively
shallow depth closer to the water table, and alleged incidents from shale
gas fracking, which is generally much deeper (thousands of feet or
metres below the surface) and much further from any ground water
aquifer and therefore presenting less of a risk for ground water
contamination. That said, each shale gas play is unique… 4
Minister for Communications, Climate Action and the Environment, Denis Naughten TD, Committee Debates,
Vote 29 - Communications, Energy and Natural Resources, 29th June 2016
1
Dr. Healy, D., “Hydraulic Fracturing or ‘Fracking’: A Short Summary of Current Knowledge and Potential
Environmental Impacts”
2
3
ibid, p.10
4
ibid, p.10
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Other challenges presented by the report include the issue with the use of chemical
additives, noting that in some countries fracking companies are under no legal obligation
to declare the exact composition of the mixture used (although the Irish regulatory
regime requires full disclosure of all additives to the EPA), and the issue of where to
source the vast amounts of water needed, noting that the extraction of water from small
catchments could have an impact on the ecology and hydrology of rivers in the relevant
areas.
To date, no commercial licenses for fracking have been issued by the EPA in Ireland. The
EPA awarded a contract to CDM Smith Ireland Limited in August 2014 to carry out a 24month research programme looking at the potential impacts on the environment and
human health from UGEE projects and operations. The research, intended to be
completed in two overlapping phases, involves extensive desk-based work (literature
review and assessment) by technical experts (Phase 1), as well as baseline-monitoring
of seismicity and water resources (Phase 2). The EPA had the following to say on the
prospective findings of the study:
The desk-based work (Phase 1) has now been substantially completed.
In January 2016, the EPA was requested by DCENR [Department of
Communications, Energy and Natural Resources] to pause the next
Phase of the research to allow time to review the multiple outputs of
Phase 1. Following consideration of this request by the project Steering
Committee, the Steering Committee has agreed to complete Phase 1 of
the study before any decision is made about future work. 5
As such, it is unclear when exactly the findings of the research programme will be
published, although it was originally anticipated that the programme would be completed
by July 2016.6
Members should perhaps be aware that the Joint Committee on Transport and
Communications met with the EPA to discuss the potential impacts of hydraulic
fracturing in June 2015 and again to discuss UGEE in December 2015. 7
EPA, “Statement Regarding Research Programme on Unconventional Gas Exploration and Extraction”,
February 2016, accessible at:
http://www.epa.ie/pubs/reports/research/ugeejointresearchprogramme/EPA_Statement_UGEE_JRP_040216.pd
f
5
http://www.dccae.gov.ie/natural-resources/ga-ie/Oil-Gas-Exploration-Production/Pages/HydraulicFracturing.aspx
6
Joint Committee on Transport and Communications, “Unconventional Gas Exploration and Extraction:
Environmental Protection Agency”, 2nd December 2015, Accessible at:
7
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TRADE AGREEMENTS
The committee may wish to note the potential future importance of the proposed
Transatlantic Trade Investment Partnership (TTIP) between the EU and the United States
of America and how this agreement may have an impact on issues that the Committee
may wish to consider.
The proposed Comprehensive Economic and Trade Agreement (CETA) between the EU
and Canada is another trade agreement that could have an effect on areas relevant to
this Committee.
While these trade agreements are not within the orders of reference of the committee,
the committee may wish to maintain a “watching brief” on the negotiations, and should
any aspect of either of these trade agreements fall within the competence of this
Committee, then Members may wish to issue a report should they have any observations
to make.
The committee may wish to note that in July 2014, the Joint Committee on EU affairs
submitted a political contribution to the EU institutions to voice the committee’s
observations on TTIP.
Subsequently, and building on the original political contribution of the Joint Committee
on EU Affairs, a joint political contribution to the EU institutions on aspects of TTIP as
fell within their competence in December 2015 was submitted by:

the Joint Committee on Jobs, Enterprise and Innovation,

the Joint Committee on Agriculture, Food and the Marine,

the Joint Committee on EU Affairs.
http://oireachtasdebates.oireachtas.ie/Debates%20Authoring/DebatesWebPack.nsf/committeetakes/TRJ20151
20200004?opendocument#F00100
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TTIP, CETA, and particularly the potential effects that these agreements may have on
areas such as Energy and Climate Action, are topics that Members should perhaps be
aware of. One such aspect that may be of particular interest to Members is the InvestorState Dispute Settlement (ISDS) mechanism.8
The committee noted that on Thursday, 27 October 2016 the Minister told the Dáil:
Without going into the complexities of geology or legal definitions, if the current
wording of the Bill were to become law, the spirit and intention of the Deputy’s
objective may not in fact be definitively reflected in law.
As such, it is my strong view that the work of the Joint Committee on
Communications, Climate Action and Environment would be considerably aided
and advanced by being able to consider the outcome of the shortly to be
published integrated synthesis report on the environmental impacts of fracking.
On 30 November 2016 the Minister stated in a press release regarding the EPA
report:
I have decided to refer the report to the Joint Oireachtas Committee on
Communications, Climate Action and the Environment for its consideration. I
hope this will assist at the Committee Stage debate of the proposed hydraulic
fracturing legislation to be progressed by the Oireachtas next year.
A procedural mechanism provided for in international agreements on investment. Countries sign such
agreements in order to set out ground rules when foreign companies invest on their territory, for example by
building factories. ISDS allows an investor from one country to bring a case directly against the country in
which they have invested before an arbitration tribunal. There are reports in the media that a Canadian
company is taking the United States government to court over its refusal to allow the construction of an oil
pipeline from Canada to the Unites States under the terms of the North American Free Trade Agreement
(NAFTA), and similarly, a US company is suing the Canadian government over the Quebec government’s
decision to revoke oil and gas exploration licences “located beneath the St. Laurence river”.
8
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AMENDMENT TO MOTION FOR SECOND READING (NOT MOVED):
1. To delete all words after “That” and substitute the following:
“Dáil Éireann resolves that the Bill be deemed to be read a second time on 30
June, 2017,
to allow for:
(a) the publication of the Integrated Synthesis Report prepared as part of the
Environmental Protection Agency led cross-border Joint Research Programme on
the Environmental Impacts of Unconventional Gas Exploration and Extraction;
(b) the opportunity for a public consultation on the Integrated Synthesis Report
to be undertaken and considered by the Minister for Communications, Climate
Action and Environment, while noting that no application to engage in
unconventional gas exploration has been received by the Minister, nor would any
such application, if submitted, be considered until the research programme has
concluded and there has been time to consider its findings; and
(c) scrutiny between now and then by the Joint Committee on Communications,
Climate Action and Environment and for the Committee to consider submissions
and hold hearings that have regard in particular to ensure that:
(i) the proposed Bill strikes a balanced and measured approach in relation to
protecting public health and the environment and promoting the common good;
(ii) the Committee can take full account of the Integrated Synthesis Report on the
Environmental Impacts of Unconventional Gas Exploration and Extraction and the
related public consultation;
(iii) the proposed Bill does not give rise to any unintended consequences or
adverse effects on the utilisation by the State of its natural resources or on the
State’s energy policy;
(iv) the proposed Bill takes account of scientific information and expert
knowledge on matters related to exploration and extraction; and
(v) the proposed Bill does not give rise to Constitutional or legal difficulties for the
State; and to fully discuss and explore other practical issues and consequences
that may arise as a result of the proposals.”.— An tAire Cumarsáide, Gníomhaithe
ar son na hAeráide agus
Comhshaoil.
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THEME 1: BILL
INTERPRETATION
1. In this Act—
“coal seams” means a layer or stratum of mineral coal;
“Irish onshore and Ireland’s internal waters” means all the land comprising the
Republic of Ireland and its onshore lakes, rivers and streams;
“petroleum” includes any mineral oil or relative hydrocarbon and natural gas and
other liquid or gaseous hydrocarbons and their derivatives or constituent
substances existing in its natural condition in strata which can be extracted and
refined to produce fuels including petrol, paraffin, oil, diesel, liquid natural gas or
natural gas;
“shale rock” means a fine-grained sedimentary rock that forms from the
compaction of silt and clay-size mineral particles which readily splits into thin
pieces along its laminations and which contains organic material that sometimes
breaks down to form natural gas or oil;
“tight sands” are low permeability sandstone reservoirs that produce primarily dry
natural gas. A tight gas reservoir is one that cannot be produced without
assistance from stimulation treatments to increase permeability to aid extraction.
PROHIBITION
2. Notwithstanding the provisions of any other Act of the Oireachtas, no Minister,
Agency, Planning Authority or Body acting on behalf of the State shall grant an
authorisation and/or grant of any consent, licence, permit, lease or undertaking
for the exploration or extraction of petroleum from shale rock, tight sands or coal
seams in the Irish onshore and Ireland’s internal waters.
SHORT TITLE
3. This Act may be cited as the Prohibition of the Exploration and Extraction of
Onshore Petroleum Act 2016.
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QUESTIONS ARISING:

This Bill proposes to introduce a “blanket” ban in relation to unconventional
exploration and extraction of onshore petroleum. What is the likely impact of an
absolute ban such as this? Is such a ban warranted given the available evidence?

As per section 3, the Bill, if enacted, may be cited as the Prohibition of the
Exploration and Extraction of Onshore Petroleum Act 2016. Do stakeholders have
any views on the wording of this citation?

According to the Explanatory Memorandum that accompanies this Bill, “the
purpose of this Bill is to provide for a clear an unequivocal position in relation to
the exploration and extraction of petroleum from shale rock, tight sands and coal
seams in the Irish onshore and Ireland’s internal waters.” 9 Do stakeholders feel
that the Bill establishes a clear and unequivocal position in this regard?
9
Explanatory Memorandum, Prohibition of Exploration and Extraction of Onshore Petroleum Bill 2016.
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THEME 2: LEGAL ISSUES
On 27 October 2016 the Minister for Communications, Climate Action and Environment
informed the Dáil:
Without going into the complexities of geology or legal definitions, if the current
wording of the Bill were to become law, the spirit and intention of the Deputy’s
objective may not in fact be definitively reflected in law. 10
In light of the Minister’s statement above, it is worth noting that there have been many
previous instances where the legislative intent of Acts of the Oireachtas have not been
fully realised.
Readers may wish to note the potential future importance of the proposed Transatlantic
Trade Investment Partnership (TTIP) between the EU and the United States of America
and how this agreement may have an impact an the area of Unconventional Gas
Exploration and Exploitation.
The proposed Comprehensive Economic and Trade Agreement (CETA) between the EU
and Canada is another trade agreement that could have an effect on this area.
One aspect of these agreements that may be of interest in the context of Unconventional
Gas Exploration and Exploitation is the Investor-State Dispute Settlement (ISDS)
mechanism.11
Minister for Communications, Climate Action and Environment, Denis Naughten, T.D., Minister Denis
Naughten's Prohibition of Petroleum Exploration and Extraction Bill 2016 Dáil Speech, 27 October 2016.
10
A procedural mechanism provided for in international agreements on investment. Countries sign such
agreements in order to set out ground rules when foreign companies invest on their territory, for example by
building factories. ISDS allows an investor from one country to bring a case directly against the country in
which they have invested before an arbitration tribunal.
11
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QUESTIONS ARISING:

Do stakeholders believe that there is potential for the legislative intent of this Bill
to be undermined if it is enacted with its current wording?

Do stakeholders believe that there are other potential legal issues that could arise
if the Bill is enacted with its current wording?

In the event that this Bill is enacted, is there a possibility that the State could be
exposed to litigation from companies that have already invested in
Unconventional Gas Exploration and Exploitation in Ireland, especially in the
context of the prospective free trade agreements between the EU and the United
State of America and Canada respectively?12
There are reports in the media that a Canadian company is taking the United States government to court
over its refusal to allow the construction of an oil pipeline from Canada to the Unites States under the terms of
the North American Free Trade Agreement (NAFTA), and similarly, a US company is suing the Canadian
government over the Quebec government’s decision to revoke oil and gas exploration licences relating to oil
and gas “located beneath the St. Laurence river”.
12
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Public Consultation on UGEE
THEME 3: CONSTITUTIO NAL ISSUES
Articles 26 and 27 of the Constitution provide mechanisms for challenging prospective
legislation on constitutionality grounds. While these mechanisms allow for the challenge
of potentially unconstitutional legislation on behalf of society, the State is also
answerable before the courts for wrongs committed against individuals for breach of
their constitutional or legal rights. However, while individuals can claim redress for a
breach of their constitutional rights, it is worth remembering that the Constitution itself
may only be altered following a referendum, provision for which is made in Article 46.
There are a number of these fundamental rights that are protected by the Constitution,
and there a number of others that are not specifically contained in the Constitution, but
that are recognised by the Courts nonetheless. In relation to the Prohibition of the
Exploration and Extraction of Onshore Petroleum Bill 2016 and the issue of
Unconventional Gas Exploration and Extraction in general, there are number of these
rights that may be relevant. Rights relating to property and the right to earn a livelihood
may be of relevance in the current instance.
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Public Consultation on UGEE
QUESTIONS ARISING:

Do stakeholders feel that a Bill which is in favour of/against the introduction of
Unconventional Gas Exploration and Extraction practices may be open to
challenge under either Article 26 or Article 27 of the Constitution?

In a briefing paper published on 04 January 2017, the House of Commons
appears to suggest that fracking is feasible in the United Kingdom, but there are
a number of issues that need to be addressed before this can happen. For
instance, there needs to be a determination on the legal aspects of drilling under
someone else’s property.
13
Do stakeholders have any views on a compensation
mechanism for when property rights of individuals are affected in the event that
Unconventional Gas Exploration and Exploitation practices are allowed to
proceed?

As mentioned previously, trade agreements such as TTIP and CETA provide a new
means of litigation for companies where the company’s potential profits are
adversely affected. Do stakeholders anticipate that companies/private individuals
could potentially sue the State for breach of fundamental rights in the event that
Unconventional Gas Exploration and Exploitation practices are not allowed to
proceed?
Delebarre J., Ares E. and Louise Smith, House of Commons Library, Shale Gas and Fracking: Briefing Paper,
04 January 2017, p.21
13
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Public Consultation on UGEE
THEME 4: NORTH – SOUTH ISSUES
The Northwest Carboniferous Basin, an area which is believed to have potential for shale
gas exploration, spans across the border between Ireland and Northern Ireland. It spans
an area that includes counties Cavan, Donegal, Leitrim, Mayo, Monaghan, Roscommon
and Sligo in Ireland14 and county Fermanagh in Northern Ireland.15
It is worth noting that each jurisdiction has its own Department that issues licenses in
relation to the exploitation of Natural Resources.
QUESTIONS ARISING:

Do stakeholders have any views on how a Unconventional Gas Exploration and
Exploitation operation that exists in Northern Ireland, and located in the
Northwest Carboniferous Basin, could exist where similar operations in the same
Basin, but located in Ireland, are prohibited? Is it possible to accurately identify
which resources are within the jurisdiction of Ireland, and which are within the
jurisdiction of Northern Ireland?

Is it possible that a situation could arise in a post-Brexit era where a body in
Northern Ireland could benefit from a Unconventional Gas Exploration and
Exploitation operation that may impinge on Ireland’s resources, while at the same
time, Ireland may be prevented from benefitting from the output of such an
operation due to trade restrictions etc.?
Past Minister of State at the Department of Communications, Energy and Natural Resources, Mr. Conor
Lenihan, Minister Lenihan invites applications for Onshore Petroleum Licensing Options over the Northwest
Carboniferous Basin and Clare Basin.
14
EPA, Proposed Terms of Reference for EPA/DCENR/NIEA Research Programme on Environmental Impacts of
Unconventional Gas Exploration & Extraction (UGEE), 2013, p.1.
15
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Public Consultation on UGEE
THEME 5: EPA REPORT – GENERAL
The Environmental Protection Agency (EPA) awarded a contract to CDM Smith Ireland
Limited in August 2014 to carry out a 24-month research programme looking at the
potential impacts on the environment and human health from Unconventional Gas
Exploration and Extraction (UGEE) projects and operations.
In November 2016, the EPA published an Integrated Synthesis Report and a series of
related reports (eleven in total) arising from the Joint Research Programme on
Environmental Impacts of UGEE.16
As a precursor to the consideration of the Joint Research Programme, readers may
wish to note that:
Environmental monitoring is needed before, during and after UGEE activities
(exploration drilling, hydraulic fracturing and potential production) at both
sub-regional and local scales. There are three types of environmental
monitoring which relate to the different stages of UGEE activity, as follows:

baseline monitoring conducted prior to any construction or operations, to establish
pre-existing environmental conditions;

operational monitoring conducted during construction, drilling, hydraulic
fracturing and production activities, in order to be able to identify and track
changes from the baseline and determine if such changes can be linked to a
particular activity; and

post-closure monitoring conducted after completion of gas production, well
decommissioning and site restoration, to check for potential impact in the
long term and verify that mitigation measures have been effective. 17
16
http://www.epa.ie/pubs/reports/research/ugeejointresearchprogramme/
Olsen R., Keating D., Claros C., Moe H. and Lorraine Gaston, Unconventional Gas Exploration and Extraction
(UGEE) Joint Research Programme, Summary Report 4: Impacts and Mitigation Measures, 2016, p. 14.
17
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Public Consultation on UGEE
The scope of the Joint Research Programme was developed to address two key
questions, namely:

can UGEE projects/operations be carried out in the island of Ireland while also
protecting the environment and human health; and

what is best environmental practice in relation to UGEE projects/operations? 18
In light of the questions above, the authors of the Integrated Synthesis Report concluded
that:
many of the activities associated with UGEE projects/operations could proceed
on the island of Ireland, while protecting the environment and human health.
This should be done using the best practices identified in Final and Summary
Reports 4: Impacts and Mitigation Measures and applying the current
regulations, together with a small number of additions and modifications that
should be complemented by adequate implementation and enforcement. 19
QUESTIONS ARISING:

Do stakeholders agree that there are three identifiable types of environmental
monitoring which relate to the different stages of UGEE activity, i.e. baseline
monitoring, operational monitoring and post-closure monitoring, and have these
types of monitoring been undertaken in similar projects to date?

The scope of the Joint Research Programme was developed to address two key
questions, namely:
o
can UGEE projects/operations be carried out in the island of Ireland while
also protecting the environment and human health; and
o
what is best environmental practice in relation to UGEE
projects/operations?
Do stakeholders feel that the EPA research has adequately addressed the
2 key questions as specified above?

Do stakeholders believe that UGEE projects/operations could proceed on the
island of Ireland while protecting the environment and human health, subject to
the additions and modifications specified above?
18
Hooper A., Keating D. and Roger Olson, Unconventional Gas Exploration and Extraction (UGEE) Joint
Research Programme, Integrated Synthesis Report, EPA, 2016, p. 42.
19
Ibid, p.42.
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Public Consultation on UGEE
THEME 6: EPA REPORT - WATER
GROUNDWATER, SURFACE WATER AND ASSOCIATED ECO-SYSTEMS
The EPA notes that in a regulatory context identifying and documenting volumetric
impact is relevant. They state that the ecological impact of UGEE-related abstractions
will ultimately determine whether or not an abstraction authorisation should be
granted.20
The EPA state that the bedrock aquifers in both study areas (the Northwest Caboniferous
Basin and the Clare Basin) are viable sources of water to meet demands, at least in part.
It is stated that the potential future UGEE-related abstractions would have to be
evaluated at both local and catchment levels.21
The Report acknowledges that the characterisation and knowledge of deep geological
and hydrogeological conditions represent the principal data gaps associated with both
case study areas.22
SEISMICITY
It is suggested that if best practice is applied it is unlikely that there will be any seismic
consequences to normal receptors.23 However, the EPA Report has identified the need for
detailed baseline monitoring should be an essential requirement of any future
unconventional gas exploration and extraction.24
Hooper A., Keating D. and Roger Olson, Unconventional Gas Exploration and Extraction (UGEE) Joint
Research Programme, Integrated Synthesis Report, EPA, 2016, p. 12.
20
21
Ibid, pp. x-xi.
22
Ibid, p. xi.
23
Ibid, p. xi.
24
Ibid, p. xiv.
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Public Consultation on UGEE
AIR QUALITY
The EPA recommends that further research into the potential cause-effect relationship of
UGEE activities and actual health outcomes in hazard analyses requires further
research.25 As the Report notes:
A review of seven jurisdictions where commercial UGEE operations are ongoing
found that, in all cases, a full baseline characterisation of air quality had not been
carried out prior to the commencement of operations. This has been highlighted as
an important information gap and recommendations for baseline studies and
extensive investigations into potential air quality impacts have been made in many
studies.26
25
Ibid, p. xvi.
26
Ibid, p. xvi.
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Public Consultation on UGEE
QUESTIONS ARISING:
GROUNDWATER, SURFACE WATER AND ASSOCIATED ECO-SYSTEMS

Do you agree with the EPA’s conclusion that the operators and regulators share
responsibility for the for baseline monitoring?

What if any ecological concerns do you associate with UGEE-related abstractions?

The EPA Report notes the following: “the recommended sub-regional baseline
monitoring programmes also include specifications for parameters that should be
measured, recommendations for installation of new monitoring wells, sampling of
stream sediments and monitoring of a small number of designated groundwaterdependent habitats”.27 Do you believe these considerations are suitable?

What measures should be put in place to ensure the views of local stakeholders
are taken into consideration?

What environmental reference conditions do you think should be taken into
consideration? How are different areas and their needs measured?

How would the catchment area be defined? Are the appropriate measures in place
to monitor and address the cumulative impact across catchment areas?

Do you believe that the appropriate contingency plans are in place should a
contamination event occur?

Do you believe that the appropriate measures are in place to reduce any potential
spillages associated with human error and equipment failure?

Do you believe that all potential environmental and public health concerns have
been considered and addressed by the EPA report?

How do UGEE-related abstractions fit in with the wider energy policy objectives
both in Ireland and the EU?
Hooper A., Keating D. and Roger Olson, Unconventional Gas Exploration and Extraction (UGEE) Joint
Research Programme, Integrated Synthesis Report, EPA, 2016, p. xi.
27
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SEISMICITY

Do you agree with the recommendation of the EPA given that the dearth of data
means that robust forecasts of the main parameters are not possible?
AIR QUALITY

The EPA recommends that further research into the potential cause-effect
relationship of UGEE activities and actual health outcomes in hazard analyses
requires further research.28 Do you agree that further research should be
conducted in this area?

Given the fact that long term emissions can occur after completion through leaks
from capped wells what do you think is an appropriate time-frame for any
potential research in this area?
Hooper A., Keating D. and Roger Olson, Unconventional Gas Exploration and Extraction (UGEE) Joint
Research Programme, Integrated Synthesis Report, EPA, 2016, p. xvi.
28
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Public Consultation on UGEE
THEME 7: EPA REPORT – IMPACTS AND MITIGATION MEASURES
The Report notes that surface chemical spills and leaks would be likely to occur and
operators must be prepared with appropriate responses and mitigation measures.29
In addition the Report also notes that fluids associated with drilling and hydraulic
fracturing operations, together with natural gas constituents that are present or
released, represent potential sources of groundwater contamination if these migrate to
the near-surface environment via natural, induced or artificial pathways. 30
The EPA Report highlights the following issue: accidental spills of flowback and produced
water can be expected from UGEE-related activities and, although the overall risk of
impact from transport-related spills of flowback31 and produced water is considered to be
low, these could result in an environmental impact. 32
The Report notes that “one of the main areas where uncertainties are liable to remain
relates to the quantification of long-term greenhouse gas emissions”.33
QUESTIONS ARISING:

How would you suggest that the actions of the operator be monitored to ensure
that the appropriate responses and mitigation measures are put in place?

What measures do you believe should be put in place to avoid any potential
sources of groundwater contamination?

How should the risk of groundwater contamination be assessed?

Given that the report notes that the risk is low should measures be put in place to
assess the potential environmental impact of accidental and transport related
spills of flowback?

Do you believe that there should be a ban on UGEE-related activities until more
information is available?

The Report notes that “one of the main areas where uncertainties are liable to
remain relates to the quantification of long-term greenhouse gas emissions”.34 Is
this something of concern to you and/or your organisation?
Hooper A., Keating D. and Roger Olson, Unconventional Gas Exploration and Extraction (UGEE) Joint
Research Programme, Integrated Synthesis Report, EPA, 2016, p. xvii.
29
30
Ibid, p. xvii.
Flowback is a water based solution that flows back to the surface during and after the completion of
hydraulic fracturing.
31
32
Ibid, p. xvii.
33
Ibid, p. xvii.
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THEME 8: EPA REPORT – REGULATORY FRAMEWORK
The European Commission is currently reviewing the scope of the Best Available
Techniques (BAT) Reference Document (BREF) regarding the Mining Waste Directive and
is also considering the development of a BREF that focuses on hydrocarbon exploration
and production that would encompass UGEE.35
A selection of countries and states in the United States of America were identified for
review and five were selected, in consultation with the steering committee, for detailed
assessment. This assessment examined Denmark, Germany, the UK and the states of
Pennsylvania and Colorado, identifying their regulatory approach and specific
requirements through the project’s life cycle, together with a comparative analysis of the
approaches.36
QUESTIONS ARISING:

Do you believe that UGEE-related abstractions should be delayed until the
findings of The European Commission’s Report have been published?
34
Ibid, p. xvii.
Hooper A., Keating D. and Roger Olson, Unconventional Gas Exploration and Extraction (UGEE) Joint
Research Programme, Integrated Synthesis Report, EPA, 2016, p. xix.
35
36
Ibid, p. xix.
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