UK ENVIRONMENTAL LAW ASSOCIATION – SUBMISSION TO THE WELSH
AFFAIRS COMMITTEE INQUIRY INTO SHALE GAS
Summary

The process of hydraulic fracturing in Wales and the UK needs a transparent,
cohesive and robust regulatory system to ensure the setting and maintenance
of high standards for the industry, and enable full and open consultation with
the public.

There needs to be an overarching strategy or framework for the development
of shale gas reserves.

Environmental Impact Assessments should be carried out for all shale gas
developments where hydraulic fracturing is proposed and efforts should be
made to ensure that these are appropriate and effective.

Consideration should be given to strengthening regulatory arrangements in
order to safeguard the public and their communities.

The legislation and the regulatory framework should be simplified and
consolidated to overcome the risks presented by the current complex decision
making processes and further minimise impacts on the environment and the
public.

Natural Resources Wales should ensure that it has sufficient staff with
appropriate skills and experience to regulate fracking processes in Wales
effectively.
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
There is a need for more research into the extent of exploitable reserves and
the most effective processes for accessing them, with minimum impact on the
environment and the public.

Natural Resources Wales and other regulatory bodies involved in the complex
approval process need to keep abreast of developments and work closely
with industry, policy makers and researchers.
Introduction
1. The UK Environmental Law Association aims to make the law work for a
better environment and to improve understanding and awareness of
environmental law. UKELA’s members are involved in the practice, study or
formulation of Environmental Law in the UK and the European Union. The
organisation attracts both lawyers and non-lawyers and has a broad
membership from the private and public sectors.
2. UKELA prepares advice to UK Governments with the help of its specialist
working parties, covering a range of environmental law topics. This
submission has been prepared by the Wales Working Party in consultation
with the UKELA’s Climate Change and Energy Working Party together with its
Planning Working Party.
3. UKELA’s concerns regarding fracking relate primarily to ensuring an effective,
appropriate, transparent, cohesive and robust regulatory system is in place to
ensure the health and safety of workers, and to safeguard the environment
and the public from any adverse impacts.
Overview of the Situation
4. The increasing interest in high volume hydraulic fracturing (fracking), presents
new and challenging regulatory risks, threats and opportunities particularly in
relation to ensuring sufficiently high standards for the process and full and
open consultation with the public. Although the process has been in
existence for well over 60 years and limited exploration in Wales has been
taking place over this period, there is now greater awareness of the potential
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risks associated with the hydraulic fracturing process. These risks relate to
the requirement for extensive water supplies; the generation and
management of waste water; the transparent use of fracturing fluid additives,
concentrations and volumes; fugitive methane gas emissions and the impact
on climate change of unlocking further fossil fuel supplies; induced seismicity;
and questions of scale.
5. The United States is leading the way in shale gas exploitation, although there
are considerable shale gas reserves worldwide in areas such as Central and
South America, Central Asia and China, Europe, the Middle East and Africa.
6. The main problems with the fracking experience in the US have been the fact
that the industry has not been effectively regulated or has been exempted
from regulation and that there have been insufficient resources deployed to
enforce the regulation that does exist.
7. Within the UK, the Westminster Government supports developing shale gas
reserves in order to cater for increasing energy demands whilst:

conventional offshore gas reserves are being depleted;

old nuclear power stations are being closed;

uncertainty about building new nuclear power stations remains; and

coal fired power stations are being phased out because of the impact
of their emissions on air quality..
For example, on 12 August 2013, the Prime Minister, David Cameron, stated
in the Telegraph newspaper that he thought fracking should receive public
support. Furthermore, HM Treasury in its report Investing on Britain’s Future
(Command 8669,June 2013) indicated that shale gas exploitation is important
in relation to Britain’s future prosperity and that the Government is likely to
support the process, partly through a target of the Environment Agency being
able to issue permits by February 2014 within 1-2 weeks of receipt.
8. Currently there are a number of concerns in relation to the approval
processes, which were not designed for this specific form of energy resource.
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These concerns relate to the fact that there is no overall control on
exploration; a lack of overarching environmental framework for the
development of shale gas reserves; and that there is unlikely to be a
requirement for Environmental Impact Assessments, unless fracking is taking
place from an individual site with an area of over one hectare or in an
environmentally sensitive area, even so the standard and overall quality of
EIAs, including those undertaken on a voluntary basis can vary considerably.
9. Exploration and extraction of shale gas reserves inevitably impact on local
communities who tend to be concerned about safety issues and the effects of
excess dust, noise, traffic movements and wider environmental impacts. The
UK Onshore Operators Group has developed its own Charter for Community
Engagement, which sets out minimum standards to be adhered to and
reported on in an open and transparent way. The Charter also provides for
financial benefits to be passed on to affected communities. However, this is
an industry initiative that relies on self regulation. It is primarily concerned
with the promotion of best practice in relation to involving and compensating
communities. The Charter is not intended to manage or mitigate risks so
cannot be relied upon to safeguard people and their communities from
potential adverse impacts of the fracking process.
The Legal and Regulatory Processes
10. In the view of UKELA, the key legal and regulatory matters that need to be
addressed in respect of exploitation of shale gas reserves are as follows:
(i)
The adequacy of the current legal regime.
Fracking is a controversial process as far as the general public is concerned.
Consequently, simpler, more streamlined and overt regulation could provide
the public with the reassurances it needs and thus be welcomed by industry.
There is no overall control of the process as a variety of public sector
organisations and regulators are involved and/or consulted at various stages.
The regulatory process in Wales is complex, partly due to the fact that
development of major energy projects is not a devolved function. As a result,
licenses for the exploration and development (Petroleum Exploration and
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Development Licences – PEDLs) of shale gas resources are granted by the
UK Government’s Department of Energy and Climate Change (DECC). There
are numerous pieces of legislation and regulation relevant to obtaining overall
permission to explore and exploit shale gas resources. These cover town and
country planning; water resources; environmental permitting; hazardous
waste; design and construction of wells; operation of borehole sites;
dangerous substances and explosive atmospheres; use of works equipment;
and mineral mining. Apart from obtaining PEDLs from DECC for testing for
and extraction of methane gas from shale rock, planning permission has to be
granted by local planning authorities. Natural Resources Wales and the
Health and Safety Executive are also consulted, notified and involved during
the processes. The former is concerned with pollution control and is served
notices of the proposed development, determines and issues abstraction
licences and discharge consents (and possibly flare emission permits), whilst
the latter has to agree the drilling activity. The agreement of both landowners
on the site concerned and adjacent landowners has to be obtained and, if coal
seams are affected, which is the case in many potential areas of Wales, the
Coal Authority will need to be consulted. This complex, multi-layered agency
process involves a number of risks, such as the potential for communication
failures; the loss of opportunity to develop wide expertise in fracking, and its
environmental and other impacts; the lengthy and complex decision making
process acting as a barrier to industry development; and confusion amongst
the public about where responsibility lies and how they can engage with the
process of granting approvals and permissions. Although the UK process is
more robust than that in the US, there are concerns about whether it is fit for
purpose and sufficiently robust to ensure environmental and community
impacts are minimised.
(ii)
The resourcing of the regulators and the transparency of the approval
process
The adequate resourcing of NRW, as the lead regulator in Wales, in terms of
manpower and the necessary expertise, will be essential in providing potential
developers with the confidence to explore and possibly exploit resources in
Wales. Regulation is only as good as the resources available for setting
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appropriate permitting conditions and ensuring their subsequent enforcement.
It is, therefore, important that NRW regulatory staff possess the necessary
background experience to manage the processes of fracking effectively.
For the reasons given above, the fact that the processes for granting
permissions for exploration and extraction of shale gas are so complex
(involving the application of a number of regulatory regimes) poses significant
obstacles to the development and regulation of this sector, and presents
difficulties for the public in terms of having a clear and joined up
understanding of the overall process.
Conclusion
11. The process of fracking has multi-faceted implications such as seismic activity
(although these are relatively minor); impact on water resources in terms of
abstraction and storage demands; well integrity to prevent aquifer
contamination and disposal of potentially contaminated flow back water (each
of which will require careful regulation in order to ensure preservation of the
quality of Welsh water); control of naturally occurring radioactive materials
(NORMs); and escape of methane into the atmosphere which could impact on
climate change targets.
12.The technology is evolving and major energy companies, such as Centrica,
are now investing in this area. Exploitation of shale gas seems to have the
potential benefit of bringing greater security of energy supplies, although there
is no definitive assessment of the extent of exploitable shale gas reserves in
Wales. More research is needed, therefore, and the regulators need to keep
up to date with developments, as well as playing an active role with the
industry, policy developers and the research community.
13. The exploitation of shale gas may have the capacity to contribute to the
Welsh economy, but there is still a considerable amount of technical, political,
economic, regulatory and environmental work to be done before it can be
relied upon as an economically viable energy source that can be exploited in a
sustainable way. In particular, the legal processes that apply to the process of
fracking need to be consolidated and simplified. The current system is
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complex requiring permissions and consents from a number of different
regulatory bodies. Accordingly, it is essential that regulators have adequate
resources to maintain and develop expertise in, and experience of, managing
the risks to the public and the environment that arise from exploration and
exploitation of Wales’s shale gas reserves.
19 December 2013
For enquiries:
Dr Norma Barry
UKELA Wales Coordinator
Tel: 029 20226263
Mobile: 07785 551511
Email: norma.barry@btinternet.com
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