Consultation on Underground Drilling Access

Transcription

1 Consultation on Underground Drilling Access Written evidence submitted by the National Trust August 2014 Executive Summary 1. Should the Government legislate to provide underground access to gas, oil and geothermal developers below 300 metres? The National Trust does not agree that additional legislation is needed to allow access for underground drilling. Legislative change would be a disproportionate response, particularly given the lack of evidence that access rights have blocked development of shale gas. 2. If you do not believe the Government should legislate for underground access, do you have a preferred alternative solution? Existing legislation is robust for granting access for underground drilling and the system should be maintained. If the Government does legislate to provide underground access, then there should safeguards for sensitive sites, following the precedent set with additional planning guidance for national parks, the Norfolk Broads, AONBs and world heritage sites. 3. Should a payment and notification for access be administered through the voluntary scheme proposed by industry? Current arrangements should be retained but if legislation is enacted to provide access for gas, oil and geothermal developers, the payment and notification scheme needs statutory underpinning to provide assurances for landowners. 4. Other issues The National Trust is concerned that questions around future liability for problems caused by underground drilling have not been addressed. Background 1. The National Trust welcomes the opportunity to respond to Department of Energy and Climate Change s Consultation on Underground Drilling Access. 2. Our response focuses on underground access for unconventional oil and gas with a focus on shale gas. It draws on the peer reviewed research on the impacts of fracking commissioned by National Trust, RSPB and others The National Trust is Europe s largest conservation charity with over four million members and an annual turnover of more than 430 million. We currently manage over 1 Are We Fit to Frack? Hydraulic Fracturing for Shale Gas in the UK 1

2 254,000 hectares of countryside, several hundred historic houses, gardens and parks and more than 700 miles of coastline across England, Wales and Northern Ireland. 4. The National Trust exists to look after special places for ever, for everyone. With regard to land, we do this in a way which connects biodiversity benefits with people, welcoming around 200 million visits to the outdoors, coast and countryside locations managed by the National Trust. 5. The National Trust has a vision for its land that produces what we need with a low environmental impact; management that protects and safeguards natural resources nurturing and harvesting them sustainably as a good custodian - not exploiting them in a damaging way for short term gain. 6. We have 120 sites currently in areas licensed for fracking. In the next (14 th ) licensing round, 634 sites more than five times that amount will be considered for fracking. In the new licensing round, potentially 1 per cent of all land under license for fracking will be owned by the National Trust. 7. We would be concerned about the impact of access to frack under National Trust land and wider special places because it may affect our ability to conserve such land. We would also be concerned about a reputational risk to tourism in areas where fracking is happening. Question One - Should the Government legislate to provide underground access to gas, oil and geothermal developers below 300 metres? 8. Protection of people s land by the law is a fundamental cornerstone of our legal system. Interference with that principle therefore has to be carefully thought through and an appropriate balance struck. While sectors like telecommunications, electricity and water can be considered essential for the basic well-being of people, at a time when other, more sustainable, forms of energy production are available, fracking by itself is not. Therefore, it is crucial that people can make representations through the courts to adequately explore potentially complex evidence and to reach robust and fair decisions. 9. We consider the current framework well-crafted and balanced in that it enables the various competing interests involved in any access situation to be explored and then put before a judge. Any replacement or refinement of this framework needs to continue to maintain this careful balancing exercise and to enable those who object to proposed drilling and associated access to have confidence that they will be able to advocate their position adequately to an independent judge for a decision. Regulation must be fit for purpose 10. The National Trust believes that commercial shale gas exploration and extraction should only go ahead in the UK if it can be objectively demonstrated that the regulatory framework that is applied to the industry is fit for purpose and offers sufficient protection to the natural and historic environment. 11. The Government is keen to see shale gas exploration and extraction rolled out quickly but more needs to be done to satisfy these conditions, and to ensure that the government s climate change commitments are met. 2

3 12. The consultation proposals are based on the assumption that change in access will happen under a safe and responsible regulatory system. However, our view is that the present regulatory system is still unproven. Our concerns are spelt out in the Are we fit to frack? recommendations report (see Appendix). 13. We are very concerned about the Government awarding an unlimited amount of licences across such a large area of the UK, including many of our most precious places. We want to see a greater level of precaution applied and further trialling and monitoring of development in areas of less significance. 14. Until we are satisfied that a robust system of regulation is in place and the technology has been proven we believe that it is essential that a landowner can use their right to negotiate access through the courts to ensure they can avoid or mitigate localised impacts of underground drilling upon their properties. 15. We would therefore want to retain the ability to negotiate directly with a developer proposing to explore or extract oil or gas from fracking under our land. The following sections explain our particular concerns and why that ability to negotiate and, potentially, to go to court is important in delivering our statutory purpose. 16. The removal of the opportunity for a court to hear an application for access to private property raises questions of compliance with Article 6 of the European Convention on Human Rights (ECHR) in Schedule 1 to the Human Rights Act (HRA) 1998 on the right to a fair hearing. Landowners would be deprived of an opportunity to make representations about proposed activity which could affect their property. While there may be an opportunity to challenge a decision to grant a licence by way of judicial review, this would only be on the basis of unlawfulness and there would be no opportunity to challenge the merits of the decision. 17. Additionally, deprivation of the peaceful enjoyment of possessions (Article 1 Protocol 1 of the ECHR in HRA 1998 Schedule 2) must be in the public interest and proportionate. We consider that lack of evidence of recoverability of shale gas or oil at this stage (acknowledged by the consultation) renders the interference with private rights of landowners disproportionate. In addition, while the use by fracking companies may be temporary, the lasting effects could be permanent, restricting the future use of the land and effectively permanently depriving owners of their property. 18. The consultation contains no evidence of how access rights are slowing up development of the fracking industry. Neither is there any guarantee that proposed levels at which drilling is permitted will not be reduced in the future. Additionally, Government information around fracking has focussed on shale gas whereas the consultation proposes to grant rights to petroleum operators which covers a much wider basis than gas, and the Government has put forward no information in the consultation or otherwise about the extraction of shale oil for example. As the proposal is to grant access rights to a much wider range than simply shale gas and geothermal operators we submit that more information should have been supplied within the consultation on these in order to fully assess the possible impact of the proposals. Without it there is a risk that the Government may be in breach of its obligations under Article 7 of the Convention on Access to Information, Public Participation in Environmental Decision Making and Access to Justice in Environmental Matters (the Aarhus Convention ) to which the UK is a signatory, to provide the necessary information to the public in the formation of policy relating to the environment. 19. There is also a real risk that scaling up too quickly, especially in sensitive inappropriate places, would rapidly lose public credibility. This would undermine support and the 3

4 social acceptance of the technology for many years to come. Forcing landowners to accept access will only help to accelerate the loss of public support for the technology. Localised Environmental Impacts 20. As a landowner and custodian with a statutory duty to promote the permanent preservation of special places for the benefit of the nation, we have an obligation to manage these assets in a sustainable manner and have introduced policies to enable us to do so. The National Trust is concerned that the potential damage from fracking on natural environment and landscape are not adequately managed through the licencing, regulatory and planning system. 21. We are particularly concerned about the risk from underground drilling to heritage assets from seismic activity and the impact on private water supplies from pollution to ground water drilling. 22. Presently landowners have the powers to negotiate access on or under their land where potential impacts can be given a fair hearing on a case by case basis. The primary aim of this negotiation with those proposing to extract shale gas/oil is to avoid or mitigate localised impacts to our land. Given this, we would prefer to keep the current system of negotiating access rights rather than giving petroleum companies a right to access wherever the licence has granted. 23. As the consultation indicates, the Mines (Working Facilities and Support) (MWFS) Act 1966 s3(2) grants ancillary rights of access where a court considers it is expedient in the national interest. This term has been interpreted by the courts as equivalent to the greatest good for the greatest number. It is not clear, particularly at a time at which the evidence of the levels of shale gas which may be technically or economically exploited is very uncertain (as the consultation acknowledges), that fracking will always be expedient in the national interest. There are questions over the overall availability of shale gas in an area, as well as the amount of gas which could be obtained from each well. 24. It is also the case that under MWFS Act 1966 s3 there is a restriction on the court granting a right of access unless the person with the power to do so unreasonably refuses to grant the right and we submit that this would require a full consideration of the relevant facts in each case. It is questionable whether it would be considered unreasonable for an owner to refuse access in the absence of a clear understanding of the potential impacts of the process they are being asked to provide access for. For this reason, we suggest that a requirement for an Environmental Impact Assessment (EIA) at this stage in the process would considerably enhance an owner s or the court s understanding of the likely effects enabling them to reach a quicker conclusion. In addition, the Government s assumption that the courts will always grant access rights raises serious questions over the separation of powers between the executive and the judiciary. Question Two - If you do not believe the Government should legislate for underground access, do you have a preferred alternative solution? 25. As we have stated above, we do not believe that DECC has demonstrated a sufficient case for the need for the current system to be abandoned, However, if such a change was to go ahead, there should be safeguards for sensitive sites, following the precedent set with additional planning guidance on fracking in national parks, AONBs, world heritage sites and the Norfolk Broads. Other sensitive sites should include SSSIs, 4

5 other environmental protections like RAMSAR sites as well as established nature reserves. 26. This would reflect the need to take increased precaution around the impacts of underground drilling for oil and gas access and could include applying strict locational criteria to avoid significant landscapes and sensitive areas for wildlife and water resources by creating shale gas exploration and extraction exclusion zones. 27. Special conditions for designated sites should mean that petroleum companies had to continue to negotiate access on a case by case basis, provide full Environmental Impact Assessments at an early stage and use the courts as an independent decision making forum if agreement cannot be reached. We already have a system of placing locational criteria on Permitted Development rights within the planning system in conservation areas or upon listed buildings. Question Three - Should a payment and notification for access be administered through the voluntary scheme proposed by industry? 28. We do not support the voluntary basis for compensation for the right of access and think that DECC s arguments against a statutory scheme could be easily overcome. The Government is proposing to take away private rights of owners in return for a voluntary community payment from which the owner may gain no benefit. As the courts have shown, any interference by a public authority with the right to property, must strike a fair balance between the demands of the general interest of the community and the requirements to protect an individual s fundamental rights (Sporrong v Sweden (1982) 5 EHRR 35). While clearly it is important that the effect of fracking on a community is acknowledged, we suggest that the proposal fails to strike a fair balance and is insufficient compensation for the loss of a private property right. Community compensation should rightly be considered within the planning framework whereas access for drilling concerns negotiation about private rights and compensation should be dealt with on an individual case by case basis. 29. In addition, although it may be difficult to define community, the Government is proposing to legislate for a reserve power so it should be able to do so. Indeed community has been defined in other policies/legislation (eg community energy section of current Infrastructure Bill). If legislation is unable to define community it is unclear how the Government will ensure that any payment is made to a suitable group. It is also not clear whether the proposed payment is in addition to or part of the proposed community payment of 100,000 per well at the exploration stage. 30. We are opposed to the notification scheme being voluntary and suggest it should be statutory. Notification of planning applications is statutory and we are unclear why the same principles should not apply here. There may be issues around identifying all the parties with an interest in a landholding but there could be special circumstances for when this is an issue rather than a carte blanche exemption from having to notify landowners. Other issues Understanding impact - transparency, setting baselines and future liability 31. We would further like to raise the issue of liability for future problems caused by fracking. The process involves a non-natural use of land in the introduction of chemicals and possibly 80% of the water containing these chemicals remains in the 5

6 shale deposit after fracking. 2 There is clearly the possibility of permanent damage of the land on which it takes place and the long-term effects of an increased volume of fracking are still unknown. 32. If owners are to have access rights removed, one question that arises is that of liability for nuisance. Case-law has established that an owner can be liable if they brought onto land any substance which may cause damage if it escaped, if harm could reasonably be foreseen it is not necessary to demonstrate fault or negligence. In light of the dangers posed by fracking could owners find themselves open to a claim in nuisance for damage caused by fracking which they had been powerless to prevent? 33. A similar concern arises with regard to criminal liability such as for an offence under the Environmental Protection Act (EPA) 1990 ss33 and 34 for keeping waste without a licence or breach of the duty of care to prevent the escape of waste from a person s control. In addition, where would the liability lie for the remediation of contaminated land caused by fracking on an owner s land under the EPA Part IIA In the event of a fracking company going out of business would liability for clean-up fall to the owner under s78f(3). We would like to seek clarification that should the Government legislate in the manner suggested by the consultation, it would absolve a landowner from such liabilities. 34. Many shale gas operators are relatively new companies. If they become insolvent during the lifetime of a well or if a pollution incident occurs they may not have the financial standing to pay for the clean-up or restoration. 35. A review by Prof Richard Davies, of Durham University published in the journal Marine and Petroleum Geology of 2,152 wells drilled from found up to 100 orphaned wells for which no firm is responsible. 36. The long-term stability of wells and the risk of pollution are key considerations. We do not think these costs should fall to the taxpayer or to the landowner. The Environment Agency and equivalents could require a financial bond to be put in place as a condition of the environmental permit. 37. The causality of localised environmental impacts can be remarkably difficult to show once pollution has occurred. It is essential that all exploration and extraction sites benefit from good quality environmental baseline setting. Any monitoring can quickly establish change and causality. It is essential that a biodiversity baseline must be established before any activity causes disturbance including exploration drilling. This can only be assured with the statutory underpinning of a compulsory EIA at the exploration stage before any drilling takes place. Conclusion 38. Any interference with the protection of people s land by the law must be carefully thought through and an appropriate balance struck. Fracking is different from other sectors like electricity, telecommunications and water because it is not directly essential for the basic well-being of people. We consider the current legal framework is wellcrafted and balanced as it allows the various competing interests in any access situation to be explored and put before an independent judge for a decision. 2 See 6

7 39. We are concerned by the government s approach which is to reduce the burden of regulation upon the onshore oil and gas industry at a time when evidence on the availability of shale gas and oil is still uncertain. This is a disproportionate response. Continuing to streamline the regulation by changing the laws of trespass and removing a landowner s access power will further weaken the regulatory environment, risking damage to our countryside and heritage assets while also failing to secure a sustainable long-term energy solution. 40. Therefore it is essential we have the power to negotiate access on a case by case basis, ensuring all localised negative impacts are avoided or mitigated. 41. However, if the Government decides to introduce legislation which alters this position we would suggest the following: safeguards for sensitive sites; a compulsory EIA to establish baseline data at the exploration stage before any drilling takes place; a statutory scheme for community compensation; a statutory scheme for notification; legislation to absolve landowners for future liability arising from fracking; and a financial bond to be a condition of the environmental permit for each site. Appendix 1. Fit to frack report 42. The National Trust in our consultation response to the Strategic Environmental Assessment for further onshore oil and gas licensing previously called for urgent improvements to be made to the regulatory framework for shale gas extraction before any further licences are awarded. 43. Additionally, the National Trust has come together with the Angling Trust, the RSPB, the Salmon & Trout Association, the Wildfowl and Wetlands Trust and The Wildlife Trusts to reach a shared understanding of the risks posed by shale gas development in the UK. 44. This partnership produced Are we fit to frack? - Hydraulic Fracturing for Shale Gas in the UK: Examining the Evidence for Potential Environmental Impacts. This report was based on an evidence review written by the project partners and peer-reviewed by the Centre for Ecology and Hydrology (CEH). The report shows evidence of the wider impact of fracking on special places. 45. As a result from the evidence in the report the group made the following policy recommendations to DECC for a robust regulatory framework for the shale gas industry in the UK: Avoid sensitive areas for landscape, wildlife and water resources by creating shale gas extraction exclusion zones Make Environmental Impact Assessments (EIA) mandatory for shale gas extraction proposals Require shale extraction companies to pay for a world-class regulatory regime Prevent taxpayers from bearing the costs of accidental pollution Make water companies statutory consultees in the planning process Require all hydraulic fracturing operations to operate under a Groundwater Permit 7

8 Make sure the Best Available Techniques (BAT) for mine waste management are rigorously defined and regularly reviewed Ensure full transparency of the shale gas industry and its environmental impact Ensure monitoring and testing of shale gas operations is rigorous and independent Minimise and monitor methane emissions Appendix 2. Landowners managing the historic and cultural environment 46. High-volume hydraulic fracturing has been shown to induce earthquakes in the northwest of England. Although literature suggests the risks from these events are low, evidence from the Cuadrilla test site in Lancashire showed damage had occurred to, and compromised the integrity of, the well casing, designed to protect ground water from contamination. 47. Seismicity triggered by human activity (typically relating to energy development projects) is in most cases the result of change in pore fluid pressure and/or change in subsurface stress in the presence of faults with specific properties and orientations and a critical state of stress in the rocks (NAS, 2012). Seismic events of this nature are therefore often associated with activities such as mining, deep quarrying, underground fluid disposal, geothermal energy production and more recently shale gas recovery. 48. Although high-volume hydraulic fracturing for shale gas is known to cause induced seismicity, due to an increase in the fluid pressure in a fault zone, neither the means by which this happens nor its frequency and maximum magnitude are fully understood at present (Davies et al., 2013). 49. There are only three known examples of felt seismicity directly linked to hydraulic fracturing, the largest being an earthquake of magnitude 3.8 ML recorded in the Horn River Basin in Canada. 50. Van der Elst et al. (2013) recently demonstrated the sensitivity of some areas with increased human-induced seismicity in the Midwestern US to further seismic events triggered by large, remote earthquakes, which suggests the presence of critically loaded faults and potentially high fluid pressures. Sensitivity to remote triggering was most apparent in sites with a long delay between the start of injection and the onset of seismicity, and in areas where moderate magnitude earthquakes occurred within 6 20 months. The authors concluded that triggering in induced seismic zones could be an indicator that fluid injection has brought the fault system to a critical state. 51. The National Trust is concerned about the impact of low level seismic activity on venerable heritage assets. Concern about the impact on heritage assets was one of the reasons given by New York State to ban fracking in historic districts Hydraulic fracturing is a new technology and there is a poor and often contradictory evidence base regarding the causality of seismic activity associated with deep underground hydraulic fracturing. 53. There is also a poor evidence base to help us understand the impacts of low seismic vibrations on fragile historic buildings. It is possible to relate low vibration thresholds to 3 8

9 the impacts of seismic events attributed to fracking to other literature on historic interiors and vibration on the impact of building work We would want to see further research on the impact of vibration from underground drilling. This could be similar to research by Arne Johnson in the US (published in the Journal of the American Institute of Conservation) to help understand the impact of construction work, how it s impact can be monitored on collections and what acceptable levels are in order to know when objects need to be moved and stored and when they can stay in situ. 55. The National Trust has carried out some work on the effect of vibration from visitor traffic on historic building structures. A summary of it by Historic Royal Palaces is available Given this lack of evidence base, DECC should work with English Heritage to commission advice on the impact of vibrations from the full range of activities associated with shale gas exploration and extraction on heritage assets and impact of underground drilling. We would be concerned about any statutory right of access being awarded without this practical or theoretical evidence base being established. Appendix 3. Pollution impact on private water supplies 57. The National Trust is committed to the conservation of water resources for environmental and social benefit in line with the Environment Agency's policy of whole catchment management. 58. It is not practically possible to connect all NT properties to a water service provider. The National Trust therefore has a duty to raise awareness and understanding of the issues involved in private water supply. 59. There are about 50,000 private water supplies in England and Wales alone, supplying 300,000 people The Environment Agency (EA) database states that the National Trust is responsible for approximately 600 individual abstractions. 61. The exact numbers of private water supplies owned by the National Trust are not known at present as some sources may not appear on the EA abstraction database. This also includes an unknown number of sources that provide water for those supplies. 62. The Environment Agency has requested that there is an exclusion zone around public water supplies. The grounds for this exclusion should be extended to National Trust properties due to this high level of unknown private water supplies. August 2014 James Lloyd James.lloyd@nationaltrust.org.uk 4 Published in the ICOM-CC Rio de Janeiro Based on 6 people to a private water supply (DWI, 1999) 9