Step by Step Community Guide
to Fracking
UCL Legal Action and Research for Communities Scheme
and living space project
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2
Content
Planning and permitting procedures
4-6
Opportunities for community intervention and participation
6-11
Other legal action: using nuisance law to limit the negative
impacts of fracking
10
Other methods:
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Further sources
12-13
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Community Guide to Fracking
Hydraulic fracturing or fracking involves extracting natural gas from shale (fine grained
sand made up of mud that is a mix of flakes of clay minerals and tiny fragments of other
minerals). The process involves drilling down to the shale layers in the earth. A mixture of
water, sand and chemicals is then injected at high pressure into the shale rock to create
fissures. The sand helps keep these fissures open whilst the gas is released from the rock
and into the well.
At the exploration phase, this process of fracking is for a short period and gas collected
is likely to be flared. The purpose of fracking at this stage is to ascertain how much gas is
present in the rock.
This guide outlines the legal procedures involved in fracking, and details the
opportunities for communities to intervene, challenge applications, and participate
in the licensing and decision making processes.
1. Planning and permitting procedures
Licences granting exclusive rights to oil and gas operators in a given area are issued by the
Department of Energy and Climate Change (DECC). Operators must also get the necessary
consents and planning permission before beginning any activities in an area.
When an operator wants to drill an exploration well, the procedure is as follows: 1
1.
The company begins by obtaining permission from the landowner by negotiating
access for the drilling area and the surface under which any drilling extends.
2.
The next step is to seek planning permission from the Minerals Planning Authority
(in Scotland, the planning authorities), which in most cases is the local County Council.
This falls under the Town and Country Planning Act 1990. This Act aims to ensure that
the operation does not have an unacceptable adverse impact on the natural or historical
environment or human health. The MPA will decide whether or not an Environmental
Impact Assessment (EIA) is required. This decision is made on a case-by-case basis,
1. These steps are outlined in detail in DECC’s Fracking UK Shale: Regulation and Monitoring (2014), which leads to a ‘regulatory roadmap’ at:
https://www.gov.uk/government/publications/regulatory-roadmap-onshore-oil-and-gas-exploration-in-the-uk-regulation-and-best-practice
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Community Guide to Fracking
depending on the likely significant environmental effects of the operation. The EIA is
submitted by the operator to the MPA which will be making a decision about whether to
grant planning permission.
3.
A permit to carry out exploration is required from the Environment Agency. The EA
address the environmental concerns on a site-by-site basis and issues a permit if required
under the Environmental Permitting Regulations 2010. A permit is required where fluids
containing pollutants are injected into rock formations that contain groundwater. The
company must specify the type and concentration of these pollutants in its application to
the Agency.
4.
Further permits may also be required from the Environment Agency if the activity
poses a risk of ‘mobilising natural substances that could then cause pollution’. The permit
will identify necessary limits on the activity such as requirements for monitoring and
restrictions on the chemicals used. It should not be granted where the activity poses an
unacceptable risk to the environment.
5.
The company must notify the Environment Agency of its intention to drill under
s.199 of the Water Resources Act 1991.
6.The Health and Safety Executive (HSE) needs to approve the design of the proposed
well. These are further regulations for safety of the site and the workers.
7.
DECC will check with the Environment Agency and HSE if they have objections to
drilling.
These planning and environmental permitting steps are for the exploration stage of
fracking, including initial drilling to see if the site is viable for gas production.
These steps must be repeated at each exploratory stage of the site’s development, to drill
any further wells and before the site goes into production.
Other permits will be required in this second stage of the process including a permit from
the Environment Agency for water abstraction by the operators and for the disposal of
waste water.
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Community Guide to Fracking
2. Opportunities for community intervention and
participation
The SEA Directive 2001/42/ EC requires an
environmental assessment to be carried
out for ‘plans and programmes’ which are
likely to have significant environmental
effects. This legislation is implemented in
the UK through the UK’s Environmental
Assessment of Plans and Programmes
Regulations 2004. 2 The SEA is undertaken
by a public body, in this context by
DECC, before it grants a license in a
licensing round. Regulation 5 requires an
environmental assessment where a plan
or programme is likely to have ‘significant
environmental effects’. Under Reg. 11 of
the 2004 Regulations, the responsible
authority has 28 days to bring to the
attention of the public whether it has
determined the plan or programme is or is
not likely to have significant environment
2. http://www.legislation.gov.uk/uksi/2004/1633/contents/made
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effects. When a plan or programme has
been prepared, it is made available for
consultation, which includes participation
of those people who are affected or likely
to be affected by, or have an interest in the
decisions (“public consultees”) involved
in the assessment and adoption of the
plan or programme (under Regulation
13). Overall, the plan/programme and the
results of the consultations are considered
before they are adopted. Therefore,
this provides an opportunity to express
opinions and influence decisions about
the extent and location of fracking activity
in a more general manner than is the case
with individual applications for fracking
exploration and production at a particular
site – which is the subject of Environmental
Impact Assessment (of projects).
Community Guide to Fracking
Environmental Impact Assessment (EIA)
An EIA is an assessment of the possible
impacts that a proposed project might
have on the environment. The public have
rights of participation in the environmental
assessment process.
An EIA is required under EU Directive
2011/92/EU which has been transposed
in UK legislation through the Town
and Country Planning (Environmental
Impact Assessment) Regulations 2011.
The purpose of the EIA is to consider the
environmental implications of projects
in deciding planning applications. An EIA
is not mandatory for fracking activity, so
whether an EIA is carried out is decided by
the planning authority using thresholds.
These thresholds mean that an EIA is more
likely to be undertaken for a project in an
environmentally sensitive area such as a
national park.
The most recent government guidance on environmental assessment of fracking states
the following:
“52. The minerals planning authority should carry out a screening exercise to determine
whether any proposal for onshore oil and gas extraction requires an Environmental
Impact Assessment…
53. Applications for the exploratory and appraisal phases will fall under Schedule 2 to the
Town and Country planning (Environmental Impact Assessment) Regulations 2011 if they
exceed the applicable threshold or any part of the development is to be carried out in a
sensitive area. An Environmental Impact Assessment is only required if the project is likely
to have significant environmental effects.”
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Community Guide to Fracking
Environmental Impact Assessment (EIA)...
(Department for Communities and Local
Government, Planning Practice Guidance
for Onshore Oil and Gas (July, 2013))
This guidance sets out that fracking
activities will only require an EIA where
significant environmental effects are likely.
Otherwise, such activities can proceed
without an EIA.
Whether the activity has significant
environmental effects is determined by
Schedule 3 of the Town and Country
Planning Regulations 2011. This sets out
criteria to consider, such as the location,
size, pollution and waste produced by
the activity, and the probability of certain
impacts occurring.
In making this judgment about likely
significant environmental effects, Article 6
of the Aarhus Convention (which provides
an international standard for public
participation in the decision-making
process) is relevant.
Annex I of the Convention sets out that
the public participation rights must be
complied with in cases of natural gas
extraction where the amount extracted
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exceeds 500,000 cubic metres per day.
This means that the current government
guidance does not strictly breach the
Aarhus Convention since the amount of gas
extracted at the exploration phase through
fracking is very unlikely to reach 500,000
cubic metres per day. If the activity is
likely to have a significant effect on the
environment, the guidance provides that an
EIA will be undertaken. This means that the
government’s guidance, requiring no EIA
unless significant environmental impacts
are likely, complies with the Convention.
However, the European Parliament has
recently agreed to amend its latest EIA
Directive (2011/92/EU) to require shale
oil and gas operators to carry out an EIA
for every site, regardless of size. This will
impose a stricter burden on the UK than
that set out in the Aarhus Convention
(which was intended as a minimum
standard). When these proposals come into
force, the current government guidance
will clearly be in breach of these new
requirements.
If an EIA is required, the developer will
submit an environmental statement to the
planning authority. This statement details
Community Guide to Fracking
Environmental Impact Assessment (EIA)...
at least the main environmental impacts of
the project and any mitigating measures to
reduce the significance of those impacts.
The environmental statement will be
available to the public, a right conferred
under Regulation 40, but usually with an
expensive fee. However, this can be reduced
by appealing to local MPs or obtaining a
copy at the price of photocopying the EIA,
a right granted under the Environment
Information Regulations 2004. It is not
unusual for the quality of an ES to be poor
so it is vital that the local community and
campaigning groups ask critical questions
of the applicant/operator and local
authority planners.
Permitting and Monitoring
Permitting process: The permitting
process offers the public opportunities
to be consulted and participate in
decision making and enforcement. When
the Environment Agency receives an
application for a permit it will place it on a
pubic register and publicise the application
on the EA website in order to elicit
comments about the application.
If there is significant public interest, further
measures are adopted such as advertising
the application and conducting a second
round of public consultation on any
draft decision to issue a permit. These
consultations provide forums for the
community to resists proposals to carry out
fracking which the EA has to consider.
Monitoring where a permit has
been granted: if there is a concern
about whether the conditions of the
environmental permit are being met, then
contact the EA. 3 This is reinforced by the
Environmental Permitting (England and
Wales) Regulations 2010. 4 Regulation 38
describes offences which the company
can commit such as failing to comply with
or contravening an environmental permit
condition, operating without a permit and
providing misleading information when
obtaining an environmental permit. The
penalties in Regulation 39 specify a fine or
imprisonment.
3. “Please call our National Customer Contact Centre on 08708 506506 if you are concerned whether the conditions of our environmental permit are being met at a particular site”.
4. http://www.legislation.gov.uk/ukdsi/2010/9780111491423/contents
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Community Guide to Fracking
Other legal action: using nuisance law to limit
the negative impacts of fracking
Private nuisance: Potentially, the law
of nuisance can be used to limit the
harmful activities of fracking, although
there is currently a lack of case law on this
subject. Private nuisance applies if the
property is neighbouring the fracking site.
There must be a continuous interference,
interference of the use or enjoyment of
Public Nuisance: If fracking causes a
nuisance to a community, it may be more
suitable to bring an action in public
nuisance, in cases in which it has led to a
material loss or an adverse impact on the
reasonable comfort and convenience of life.
It must be shown that a substantial class
of people are affected by the nuisance. In
land or some right over it and an unlawful/
unreasonable interference. 5 The courts
will look at a number of factors in reaching
the unreasonableness of interference.
However, the court will also consider
whether the activity is economically
important. An injunction is a possible
remedy which the courts may grant in an
action for private nuisance.
one case, pre-dating fracking, dust and
vibrations from a quarry were considered
a nuisance and an injunction was
granted. 6 Alternatively, the local authority
can be urged to bring an action under a
Statutory Provision nuisance. The impact
of the activity must constitute a nuisance
or be prejudicial to health. An injunction
is also available as a remedy in a case of
public nuisance. It is important to keep
a log book to document any changes in
the surroundings, such as water quality,
pollution and impacts upon health.
5. http://www.lawteacher.net/tort-law/lecture-notes/nuisance-lecture.php
6. Attorney General v PYA Quarries [1957] 1 All ER 894.
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Community Guide to Fracking
Other methods:
• Lobby local politicians: Case studies in France 7 and Bulgaria 8 show the importance of
local campaigning due to the pressure it creates on government to respond to public
opinion.
7. http://www.bloomberg.com/news/2013-01-23/u-k-explorer-shows-french-fracking-ban-stalls-conventional-oil.html
8. http://www.bbc.co.uk/news/world-europe-16626580
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Community Guide to Fracking
3. Further sources
Details of the Environment Agency’s procedures and considerations when receiving
applications for permits, specifically on public consultation:
http://www.environment-agency.gov.uk/static/documents/Business/Working_together_
PPS_v2.0.pdf
Mapping data illustrating current licenses and the licenses granted in the 13th Round:
https://www.gov.uk/oil-and-gas-onshore-maps-and-gis-shapefiles
The Department of Energy & Climate Change website lists useful documents, in particular,
documents listed under ‘Onshore Reports’ which details Reports by the House of
Commons DECC Select Committee on Shale Gas covering issues such as regulation and
environmental issues:
https://www.gov.uk/oil-and-gas-onshore-exploration-and-production
The Environment Agency webpage on Minimising Environmental Risk through
Regulation:
http://www.environment-agency.gov.uk/business/topics/133885.aspx and its
Guidance note for Exploratory Shale Gas Operations:
http://a0768b4a8a31e106d8b0-50dc802554eb38a24458b98ff72d550b.r19.cf3.rackcdn.
com/LIT_7284_231c35.pdf
A guidance note providing more details on an Environmental Impact Assessment
supplied by Surry County Council:
http://www.surreycc.gov.uk/__data/assets/file/0011/261776/Guidance-Note-1-EIAScreening-and-Scoping-_Jan-2012_.pdf
Friends of the Earth, Environmental Impact Assessment: A Campaigner’s Guide (FoE, 2005)
provides useful advice on judging and challenging environmental statements in the
environmental assessment process:
http://www.foe.co.uk/sites/default/files/downloads/environmental_impact_asses1.pdf
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Community Guide to Fracking
Further sources...
A video by Susan Watt (a Newsnight report) on ‘Fracking: Concerns over Gas extraction
regulations’:
http://www.bbc.co.uk/news/uk-17448428
Frack Off! Energy Action Network, a website to fight against fracking, which provides the
latest developments:
http://frack-off.org.uk/
and
FRAW (Free Range Activism Website) lists further information for research:
http://www.fraw.org.uk/publications/a-series/a01/index.shtml
There is currently a petition to stop fracking by creating a campaign on a website called
‘38 degrees’ via:
http://you.38degrees.org.uk/petitions/stop-the-shale-gas-extraction-byfracking?time=1355956091.
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ISBN 978-0-9560360-9-4
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