Fracking the UK Shale Gas Sector Regulatory Regime - OGEL

Oil, Gas & Energy Law Intelligence www.ogel.org ISSN : Issue : Published :

1875-418X Vol. 12 - issue 3 June 2014

Fracking the UK's Shale Gas Regulatory Regime

by Y. Abul-Failat

This paper is part of the OGEL special: "The Governance of Unconventional Gas Development Outside the United States of America" prepared by:

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Fracking the UK’s Shale Gas Regulatory Regime — Yanal Abul Failat* The production of oil and natural gas from shale formations is becoming a trend, and many countries with technically and economically recoverable unconventional resources are endeavouring to explore how shale formations may benefit the economy and achieve energy security. The trajectory of shale gas development in the UK is highly supported by the government; in the Gas Generation Strategy Paper published by the UK government on 5 December 2013, it is recognised that the shale gas production would decrease reliance on imports and thus enhance the UK’s energy security.1 Moreover, the UK Institute of Directors report on UK Shale Gas Potential explains that in the UK there is a potential of production peaking at around 1.13 trillion cubic feet (“tcf”) and a sector that could support around 70,000 jobs and secure net benefit to the Treasury in tax revenues. On this basis, there has been a growing interest in the benefits of exploring the UK’s shale gas but a combination of technical challenges faced in shale gas operations, a stern opposition by environmentalists and concerns on the adequacy of the legal framework have slowed the progress of the emerging UK shale industry.

Introduction

The UK's newfound interest in the shale industry and in employing hydraulic fracturing is not unprecedented.2 Onshore exploration and production can be traced back to circa 1850 and since the 1950s approximately 200 wells were hydraulically fractured both onshore and offshore.3 The first onshore hydraulic operations for extracting shale gas in the UK were conducted in 1991 and 1992 in West Sussex and Cheshire respectively.4 Interestingly enough, the operations were so indigenous to the UK that the main active component in the fracturing

1

DECC, 'Gas Generation Strategy' (2012) Presented to Parliament by the Secretary of State for Energy and

Climate Change by Command of Her Majesty, Cm 8407; available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/65654/7165-gas-generationstrategy.pdf accessed on 21 January 2014.

2

UKOOG, 'UK Onshore Oil and Gas in the UK’ (2013) H2; available at:

http://www.ukoog.org.uk/elements/pdfs/UKOOG%20Onshore%20Oil%20and%20Gas%20in%20the%20UK.pd f accessed 22 January 2014.

3

Ibid.

4

Shale Gas Europe, 'The UK's Oil and Gas Industry’ (Shale Gas Europe 2013); available at: www.shalegas-

europe.eu/en/index.php/news-room/blog/entry/the-uk-s-onshore-oil-and-gas-industry accessed 22 January 2014.

1

fluid used was Marmite!5 The fact is nonetheless, that until recently, exploring for shale gas was not financially viable and conventional resources were preferred as they require simpler technology and less cost to produce. With the rise of the shale gas sector in the UK, this paper aims to outline and explain the planning and permitting regime to which shale gas exploratory activities are subject to. It will first provide a brief background on the sector in the UK, then it will discuss the legal framework regulating it and conclude with remarks on the regime.

The Reserves In the UK, The viability of the available volume of shale rock is yet to be known. The Parliament Office of Science and Technology states that “there are currently no official reserve estimates... the UK reserves could be anywhere from zero to substantial.”6 Yet, a variety of estimates have been published. In 2010, the British Geological Survey (“BGS”) estimated that the UK potential reserves are approximately 5.3tcf. 7 In 2011, Cuadrilla estimated an approximate 20tcf of recoverable shale gas in UK basins of Bowland and West Lancashire.8 The US Energy Information Administration in 2013 estimated that the UK holds 26tcf of shale gas and 26 million barrels of shale oil reflecting the prospective resources within Carboniferous and Jurassic age shale formations.

5

Michael Quentin Morton, 'Unlocking the Earth: a Short History of Hydraulic Fracturing' (2013) 10 (6) Geo

ExPro 86, 90.

6

Parliamentary Office of Science and Technology, 'UK Shale Gas Potential' (July 2013); available at:

www.parliament.uk/documents/post/ShaleGas_POSTbox.pdf accessed on 24 January 2014.

7

DECC, 'The Unconventional Hydrocarbon Resources of Britain's Onshore Basins – Shale Gas’ (2012) 10;

available at: https://www.og.decc.gov.uk/UKpromote/onshore_paper/UK_onshore_shalegas.pdf accessed 24 January 2014.

8

DECC (n 1 ) 54.

2

Figure 1: British onshore oil and gas production

Source: ARI

3

However, these calculations do not take into account risked reserves nor do they stipulate the proportion that can be economically produced.9 This is particularly true when taking into consideration that an appropriate estimate of recoverable gas requires several wells to be drilled followed by testing of the production characteristics for a long time. The Department of Energy and Climate Change (“DECC”) explains that production properties differ by location and rock formation and thus resource estimates “have been subject to frequent and dramatic changes.”10 Only the profitability of the shale gas however, is able to determine the value of the total shale gas volume in the UK. Howard Rogers of the Oxford Institute of Energy Studies explains that the profitability of the UK shale may well need a 2-3 years exploration programme and that realistically it may need 50 to 100 wells to be drilled.11 The reserves however are promising, the Bowland Shale’s thickness for instance, shows potential for profit even at a cost base initially expected to be higher than in the US.12 This is why in countries where the shale sector is more developed, estimates are more consistent and accurate. This reflects on the world's total technically recoverable shale oil and shale gas resources which are estimated by the US Energy Information Administration to be 345 billion barrels and 7,795tcf respectively.13

Figure 2: Technically Recoverable Shale Gas Estimates

Source: EIA

9

Ibid.

10

Ibid, 55.

11

Howard Rogers (2014) The Gap Between Aspiration and Reality. The Shale Gas Forum, HAC Armoury

London, 18 March 2014 (Notes taken by Yanal Abul Failat).

12

Ibid.

13

Technically recoverable "represents the volumes of oil and natural gas that could be produced with current

technology, regardless of oil and natural gas prices and production costs: Energy Information Administration, 'Technically Recoverable Shale Oil and Shale Gas Resources: An Assessment of 137 Shale Formations in 41 Countries outside the United States’ (2013) 10; available at: www.eia.gov/analysis/studies/worldshalegas/pdf/fullreport.pdf accessed 21 January 2014.

4

The Moratorium When looking at the media, it is clear that there is an international and national discourse on the nature of shale formations, its effects on the environment and its regulation. When the UK expressed its interest in shale gas production a strong opposition on fracking brought the idea to investigation. This was triggered by YouTube videos of flaming taps, scrutiny by environmentalists and of course the induced seismicity experienced in Lancashire in 2011.14 The BGS has found that the seismicity was the result of shale gas fracking in the Poulton-leFylde operated by Cuadrilla. The consequence was a temporary suspension of all shale gas fracking operations in the UK until the moratorium was lifted by Edward Davey in his ministerial statement to the parliament published by DECC on 13 December 2013.15 In the ministerial statement, it was stated that after careful review of the scientific and engineering evidence on shale gas extraction conducted by the Royal Academy of Engineering and the Royal Society, DECC has concluded that the potential risks associated with such production can be mitigated by the available controls.16 This supported by the Executive agency of the Department of Health that has explained that potential risks to public health associated with shale gas activities are rather low and that any such risks arise from operational failures and or negligent on-site management. 17 It was further stated that “the risks can be managed effectively if operational best practices are implanted and enforced through regulations.”18 The Legal Framework At present, in the UK there is no legislation dedicated to the exploration and production of shale gas but the existing extensive onshore oil and gas regime is being used to regulate such

14

Mark Brierley, 'The Future of Shale Gas in the UK' (NewStatesman 2014); available at:

http://www.newstatesman.com/business/2014/01/future-shale-gas-uk accessed 21 January 2014; BGS (n Error!

Bookmark not defined.).

15

DECC, 'Written Statement by Edward Davey: Exploration for Shale Gas' (2012); available at:

https://www.gov.uk/government/speeches/written-ministerial-statement-by-edward-davey-exploration-forshale-gas accessed 21 January 2014.

16

Ibid.

17

Executive Agency of the Department of Health, ‘Review of the Potential Public Health Impacts of Exposures

to Chemical and Radioactive Pollutants as a Result of Shale Gas Extraction’ (2013) Draft for Comment, iii ; available at: http://www.hpa.org.uk/webc/HPAwebFile/HPAweb_C/1317140158707 23 January 2014.

18

Royal Society and the Royal Academy of Engineering, 'Shale Gas Extraction in the UK: a review of hydraulic

fracturing’ (June 2012) 4; available at: https://royalsociety.org/~/media/Royal_Society_Content/policy/projects/shale-gas/2012-06-28-Shale-gas.pdf accessed 18 March 2014.

5

activities. The moratorium on fracking was lifted on this basis; DECC explains that the existing regime is robust enough to ensure the industry’s application of good practice throughout its exploratory operations.19 In DECC’s words:

So far as the UK is concerned...the industry has a good record, and...there are already in place robust regulatory controls on all oil and gas activities...the existing regulatory framework already provides the means to ensure that the industry does apply good practice throughout its operations; and that it will do so consistently. But we are taking further steps to reinforce the regime.20

The existing regime generally requires oil and gas companies to secure a licence from DECC, this is currently complemented by a series of permits and consents that must first obtained before DECC authorises any exploratory activities. The government has published a roadmap outlining the process that must be undertaken before operators commence exploration and production of shale gas.21

The UK’s regulatory framework is highly regarded internationally but in the context of shale gas exploration is found to be complex and the industry is concerned about its efficiency and its applicability in practice as the planning and permitting responsibilities are divided between various regulatory institutions including: 

DECC



The Environmental Regulator (EA, NRW and SEPA)



The Mineral Planning Authority



The Health and Safety Executive



The Coal Authority



The British Geological Survey

19

DECC (n 15).

20

DECC (n 15).

21

See annex 1; UKOOG, ‘Fact Sheet: Onshore Oil and Gas Regulation’ (2014)

http://www.ukoog.org.uk/images/ukoog/pdfs/fact%20sheets/regulation.pdf accessed 11 February 2014.

6

Figure 3: Planning and Permitting Regime

Source: DECC 7

The Licence In the UK, an operator that intends to explore and produce shale gas must first obtain a Petroleum Exploration and Development Licence (“PEDL”) as the right to search and bore for and get petroleum is vested in the Crown under the Petroleum Act 1998.22 PEDLs are not specific to shale gas and do not grant a permission to drill but rather provide the licensee with exclusivity in relation to hydrocarbons whether conventional or unconventional within a particular acreage. This exclusive right is transferred by the Secretary of State to a company or a group of companies typically operating under a Joint Operating Agreement.23 PEDLs typically entail an initial exploration term of 6 years, a second development term of 5 years and a third production term of 20 years that brings about mandatory relinquishment of 50% of the licensed acreage at its end.24 Such licences are granted via competitive rounds; the 14th licensing round will be held in 2014 covering exploration for both conventional and unconventional oil and gas. 25 In assessing an application for a licence and operatorship, DECC will take into consideration the financial standing and technical competence of the applicant as well as any insurance coverage available.26

As exploration for shale gas is at its early stages in the UK, the term ‘shale gas well’ is still not well defined. Even so, below is a list of wells that have been drilled and were planned to drill into or through strata regarded as prospective for shale gas despite the primary purpose of the well.27

22

The Petroleum Act 1998, s.2.

23

Ibid, s.3; Birgitte Jensen and Yanal Abul Failat, ‘Oil and Gas Joint Operating Agreements – Default

Provisions, a Dilemma by Default’ (2013) 5 OGEL 4, www.ogel.org (OGEL, ISSN 1875-418X).

24

DECC, ‘Oil and Gas: Petroleum Licensing Guidance’ (Government Official Site, 4 December 2012); available

at: https://www.gov.uk/oil-and-gas-petroleum-licensing-guidance#types-of-licence accessed 10 February 2014.

25

DECC, 'Preparing for the 14th Round of Onshore Oil and Gas Licenses' (DECC, 18 December 2013);

available at :< blog.decc.gov.uk/2013/12/17/preparing-for-the-14th-round-of-onshore-oil-and-gas-licences/> accessed 10 February 2014.

26

DECC (n 24).

27

Email from DECC to Yanal Abul Failat on 19 February 2014.

8

Figure 4: PEDLs drilled regarded as prospective for shale gas

Source: DECC 9

The above licence holders are mostly small explorers that have been leading the sector.

Nevertheless, an interest is maturing amongst the international oil majors such as Total who has in January 2014 acquired 40% percentage interest in PEDLs 139 and 140. Until now Total who has invested $50 million in shale gas so far, has stated that they will participate in the upcoming 14th licensing round and will consider further farm-ins into existing licenses.28 DECC confirms that there are other companies that are in the process of drilling or making plans to do so on other sites in order to explore the potential of shale gas.29 From the table above, it is only Cuadrilla Resources that used fracking for shale gas on the Preese Hall site in Lancashire; DECC confirms that as of 18 February 2014 it has not received any further applications to frack for shale gas at that stage.30 Poyry expects a stable yet a small number of companies applying for licences annually until 2019 which will be followed by a rapid growth during the production era where it is expected that 100 wells will need permitting annually thereafter until 2024.31

Under the current regime, even if an operator holds a PEDL, they will still require to undertake certain steps and acquire other approvals before DECC’s final well consent is granted. The PEDLs do not grant licensees any exemption from other regulatory requirements to conduct shale gas exploration and production activities and operators must ensure that they obtain access rights from landowners and a chain of permits and permissions from governmental institutions that were designed to reinforce the existing legal framework; it is unlikely that consent to commence drilling will be given by DECC without obtaining the following.

The Landowners?

If the drilling of a well entails horizontal drilling that will cross the boundary of a private property, the operator must ensure from the outset that consent from the landowner(s) is

28

Guy Chazan, Big Fish a Game changer for UK Shale Tiddlers’ (Financial

Times, 16 January 2014) 17.

29

Ibid.

30

Ibid.

31

Poyry, ‘Macroeconomic Effect of European Shale Gas Production (November 2013) Where are we Now?’

(2014) 7; available at: http://www.fraw.org.uk/files/extreme/poyry_2014.pdf accessed on 23 February 2014.

10

obtained; otherwise, the drilling would constitute a trespass. In Star Energy Weald Basin Limited and another v Bocardo SA (“Bocardo”),32 the court unanimously decided that: 

the owners title extends down to the strata, between 800ft and 2,800ft, through which Star Energy’s wells, casing and tubing pass unless there has been a conveyance, at common law, statue or someone else;33



an owner who holds the paper title has prima facie right to possess not only the strata below but also the subsurface strata;34 and



that the right to search and bore for petroleum granted under a licence cannot bind a landowner who was not party to the licence.35

The latter point is supplemented by s.9 (2) of the Petroleum Act 1998 that reads: Nothing in this Act shall be construed as conferring, or as enabling the [Secretary of State] to confer, on any person, whether acting on behalf of His Majesty or not, any right which he does not enjoy apart from this Act to enter on or interfere with Land.36

Therefore, an operator who is seeking access to an area should at first instance seek to negotiate consent with the landowner(s). If unsuccessful, the licence holders can seek to acquire ancillary rights under the Petroleum Act 1998 if the landowner unreasonably refuses to reach an agreement or demand unreasonable terms. 37 The court may grant the licence holder all necessary ancillary rights and easements including the right to access the land and sink boreholes in order to search and extract shale gas,38 if it is satisfied that it is expedient in the national interest.39 Such a grant would entitle the landowner to compensation under statute;40 nevertheless, in Bocardo the Supreme Court rejected the argument that the statutory principles on compensation entitled the landowner to the equivalent of a royalty in exchange of access

32

[2010] UKSC 35.

33

Ibid, paragraphs 27 – 28.

34

Ibid paragraph 31.

35

Ibid paragraph 32.

36

Petroleum Act 1998, s.9 (2).

37

Ibid, s.7 (1); Mines (Working Facilities and Support) Act 1966, s.3 (2).

38

Petroleum Act 1998, s.7 (3) (a).

39

Mines (Working Facilities and Support) Act 1966, s.3 (1).

40

Petroleum Act 1998 s. 7 (4) (b).

11

rights. 41 When assessing the compensation, the court referred to two relevant provisions, namely, s.8(2) of the Mines (Working Facilities) Act 1966 which provides that compensation is assessed “on the basis of what would be fair and reasonable between a willing grantor and a willing grantee” and s.3(2)(b) of the Petroleum Act 1934 which provides an additional allowance of at least 10% which shall be made upon a compulsory; this is now mirrored in s.7(4)(b) of the Petroleum Act 1998. The court also quoted Lord Nichols in saying that “the pressing need for an acquiring authority for land as part of a scheme was to be disregarded in assessing the land’s value for the purposes of compensation”; this is referred to as the Pointe Gourde principle. 42 Accordingly, in the Court of Appeal, an award of damages of £1000 was upheld.43

As the current framework stands, although shale companies may enjoy nominal compensation, the reality is that this approach may render projects unviable. The UK Onshore Operators Group (“UKOOG”) has estimated that in cases where an agreement is not reached between a developer and a landowner, the Petroleum Act 1998 compulsory process would take 18 – 24 months.44 This clearly does not mirror the process in the US where land owners own the minerals in their land and achieve higher financial or economic return when granting companies any rights of access and or ownership. Further, Calum Stacey highlighted the UKOOG summary of the procedure emphasising its inadequacy in terms of time consumption and project viability, namely: (a) Determine the expected well path, allowing for margins of error should the well deviate from its planned path; (b) Identify the landownership under which the well is expected to pass; (c) Enter into negotiations with the landowner with a view to obtaining the necessary grant of rights to drill under their land; (d) If the landowners are too numerous, refuse the grant or demands unreasonable terms, apply to the Minister (DECC) for ancillary rights;

41

Terence Daintith, Finders Keepers? How the Law of Capture Shaped the World Oil Industry (Routledge 2010)

324.

42

Waters v Welsh Development Agency [2004] UKHL 19, 64 - 65.

43

Bocardo (n 32), paragraph 92.

44

Calum Stacey, ‘Case Comment: Bocardo SA v Star Energy UK Onshore Ltd and another’ (2011) 2 (1)

Aberdeen University Law Review 124, 134.

12

(e) The Minister will review the case, including consultation with the landowners and, unless he considers that a prima facie case is not made out, refer the matter to the Court; and (f) The Court will set a date and hear the case and, if it is satisfied that the requirements of the legislation are complied with the in the case of the applicant licence holder, grant the compulsory purchase right.45

The Environmental Risk Assessment An Environmental Risk Assessment (“ERA”) may be requested by DECC for review in order to grant final consent for drilling. The need for an ERA is determined by the relevant Minerals Planning Authority (“MPA”) who will determine this by undergoing a screening exercise under European law; most or all proposals which involve fracking will require an EIA.46 In its report of 2012, the Royal Society provides that such an assessment should be compulsory for all shale gas operations and must be assessed across all the stages of such project, namely from exploration to disposal.47 At the moment though, the ERA focuses on the exploration phase of shale gas activities and covers baseline monitoring; water acquisition; chemical mixing; borehole integrity; well injection; flow back fluid management including residual material left in the well; gas management; offsite disposal or reuse and well decommissioning. 48 Further, if it is shown that any European protected species or habitats may be affected by shale gas exploration, an assessment under the Habitats Directive is also required,49 an obligation which was implemented into national legislation through the Conservation (Natural Habitats) Regulations 1994.

The Environmental Impact Assessment In supplement of the results of the ERA, an Environmental Impact Assessment (“EIA”) is usually required. An EIA is mandatory for projects which fall within the applicable

45

Ibid.

46

UKOOG, 'Who is Responsible for What?' (UKOOG, 2014); available at: www.ukoog.org.uk/knowledge-

base/regulation/who-is-responsible-for-what accessed 11 February 2014.

47

Royal Society and Royal Society of Engineering (n 18) 5.

48

Environment Agency, ‘An Environmental Risk Assessment for Shale Gas Exploratory Operations in England’

(2013) Version 1, 4; available at: http://a0768b4a8a31e106d8b050dc802554eb38a24458b98ff72d550b.r19.cf3.rackcdn.com/LIT_8474_fbb1d4.pdf accessed 12 February 2014.

49

Council Directive 92/43/EEC.

13

thresholds and criteria of Schedules 2(d) and 3 (extractive industry) to the Town and Country Planning (Environmental Impact Assessment) Regulations 2011. The objective of EIAs is to establish the possible effects of developments involving fracking on the environment and to ensure that these effects are considered and mitigated before any shale gas project is allowed to go ahead.50 Operators are advised to contact the MPA for an initial screening opinion to determine whether an EIA is required.51 If one is required then an Environmental Statement should be submitted to the MPA as part of the planning application process.52

The Planning Application Before any drilling starts, planning permission is an approval that an operator must obtain from the relevant MPA; either the county council in England or the planning authority in Scotland and Wales.53 The planning regime complements the other regulatory regimes and as expressed in the National Planning Policy it aims to assess the appropriateness of the activities for their location and any risks to health, natural environment and general amenity. 54 In assessing an application for a planning permission economic, social and environmental factors such as noise associated with the operation, dust, air quality, traffic, and other effects on the landscape will be taken into account.55 Separate planning permissions are required for each phase of shale gas extraction, nonetheless, the Town and Country Planning (General Permitted Development) Order 1995 provides that there may be a deemed consent that follows initial seismic work.56 These applications, which are assessed on a caseby-case basis, will also be subject to the consultation of the Environment Agency and the

50

Energy and Climate Change Committee, Shale Gas: Fifth Report of Session 2010-2012 (Stationary Office

2011) 23.

51

Environment Agency, ‘Onshore Oil and Gas Exploratory Operations: a technical guidance (2013) Consultation

Draft, 8; available at: https://consult.environment-agency.gov.uk/portal/ho/climate/oil/gas?pointId=2582509 accessed 22 March 2014.

52

Ibid.

53

DECC, 'Fracking UK Shale: Planning Permission and Communities (2014) 4; available at:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/283832/Planning_v3.pdf accessed 24 March 2014.

54

DECC, 'Planning Practice Guidance for Onshore oil and Gas’ (2013) 7; available at:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/224238/Planning_practice_guida nce_for_onshore_oil_and_gas.pdf accessed 24 March 2014.

55 56

Ibid.

Town and Country Planning (General Permitted Development) Order 1995, Part 2, Schedule 2.

14

local communities.57 The application and any other information that is material to it will be published and available for the inspection of members of the public who are encouraged to engage and comment on the proposed activities.58

The Environmental Permits Onshore oil and gas exploratory activities, whether for conventional or unconventional hydrocarbons, require bespoke permits depending on the techniques used for exploration and the geology of the site.59 These must be obtained from either the Environment Agency or the Scottish Environment Protection Agency (“SEPA”) for activities in England and Wales and Scotland respectively. As a first step in obtaining these permits, an operator who intends to “construct or extend a boring for the purpose of searching for or extracting minerals” must first serve a notice to the Environment Agency. 60 Then they must apply for the relevant environmental permits in accordance with the Environmental Permitting (England and Wales) Regulations 2010 (“EPR 2010”) including environmental permits for: 

Mining waste operation involving the “management of extractive waste, whether or not involving a mining waste facility.”61 The Environment Agency explains that any mining waste activities forming part of shale gas exploration will require this environmental permit if the aim is to establish the existence, the characteristics and the quality of the hydrocarbons reserves of economic value.62



Water discharge activity including the “discharge or entry to inland freshwaters, coastal waters or relevant territorial water of any (i) poisonous, noxious or polluting matter, (ii) waste matter, or (iii) trade effluent or sewage effluent.”63

57

DECC (n 53).

58

DECC, 'Developing Onshore shale Gas and Oil - Facts about Fracking' (2013) 8; available at:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/265972/Developing_Onshore_Sh ale_Gas_and_Oil__Facts_about_Fracking_131213.pdf accessed 04 March 2014.

59

Environment Agency, ‘Unconventional Gas Permits’ (EA, 2014) available at: http://www.environment-

agency.gov.uk/business/topics/134508.aspx accessed 18 February 2014.

60

The Water Resources Act 1991, s.199.

61

The Environmental Permitting (England and Wales) Regulations 2010 (“EPR 2010”), Schedule 20, paragraph

2(1).

62

Environment Agency (n 51) 17.

63

EPR 2010, Schedule 21.

15



Groundwater activity or in other words, “the discharge of a pollutant that results in the direct input of that pollutant to groundwater activity.”64



Naturally Occurring Radioactive Material (“NORM”) industrial activity; fracking for shale will involve the production of natural gas which is listed such an activity under the EPR 2010. Therefore, shale gas activities post the exploration phase will be subject to this permit.65



Any flaring with a capacity of more than 10 tonnes of natural gas per day.66

Further, water abstraction from groundwater and surface water may trigger the need for further consents if the abstraction is anticipated to exceed 20m3 per day of water. In such a case, an application to the Environment Agency must be made to acquire an abstraction licence.67 If the abstraction is expected to affect groundwater then groundwater investigation consent is required to cover the construction and test pumping a borehole before an application for an abstraction licence is actually made.68 An operator may also be subject to flood defence consent if the relevant site for exploration activities is in, over or under a watercourse which is part of a main river.69

The Health and Safety Executive Notification Operators who have plans to drilling a shale gas well must, 21 days before any such plans,70 notify the Health and Safety Executive (“HSE”) which monitors and promotes the adoption of safe working practices by operators. Its goal is to reduce risks to workers and the public as far as reasonably practicable via two specific regulations, namely the Borehole Sites and Operations Regulations 1995 (“BSOR”) and the Offshore Installations and Wells (Design and Construction etc) Regulations 1996 (“DCR”). The former mainly deals with the manner in which risks are managed on site and the latter is more concerned with well integrity and

64 65

EPR 2010, Schedule 22, paragraph 3.

Ibid, Schedule 23; Environment Agency, ‘Guidance Note: regulation of Exploratory Shale Gas Operations

(2013) 3; available at: http://www.groundwateruk.org/downloads/EA_ShaleGasRegulation.pdf accessed 12 February 2014.

66

The Environmental Permitting (England and Wales) (Amendment) Regulations 2013, Regulation 35.

67

The Water Resources Act, s.24.

68

Ibid, s.32.

69

Ibid, s.109.

70

The Offshore Installations Safety Case Regulations 2005, Regulation 7(1).

16

control applying through the entire life cycle of shale gas wells. Both regulations ensure that the operator reports to the HSE with key information on a weekly basis throughout the various stages of the relevant activities so it can properly assess the extent of risk control and mitigation taken by the operators.71

The Well Examination Scheme One of features of the DCR is that it requires the operator to prepare and implement arrangements for an independent well examination (“Well Examination Scheme”) that entails a complete examination of well design and construction.’ 72 Regulation 18 of the DCR provides that the Well Examination Scheme must be held by independent and competent persons who are also required to prepare and write reports and recommendations, with the assistance of the well-operators, so that the well is designed, constructed and maintained in a condition that “so far as is reasonably practicable, there can be no unplanned escape of fluids from the well; and risks to the health and safety of persons from it or anything in it, or in strata to which it is connected are as low as is reasonably practicable.” 73 The Well Examination Scheme must also consider well design aspects such as groundwater and aquifer isolation, fracture containment, induced seismicity risks, fracturing and flow-back testing programmes and operations.74 In addition, the Well Examination Scheme should also include examinations of decommissioning designs and operations.75

The Coal Authority Permission The Coal Authority which was established by the Coal Industry Act 1994 has the right to “holding, managing and disposing of interests and rights in or in relation to the unworked coal.”76 Accordingly, an operator who intends to explore for shale gas in or through an area that intersect, disturb or enter the Coal Authority’s interest must request a written permission

71

HSE, ‘Shale Gas’ (HSE, 2014); available at: http://www.hse.gov.uk/shale-gas/about.htm accessed 01 April

2014.

72

The Offshore Installations and Wells (Design and Construction, etc.) Regulations 1996, Regulation 18 (1).

73

Ibid, Regulation 18(2).

74

UKOOG, 'UK Onshore Shale Gas Well Guidelines' (1 February 2013) 24; available at:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/185935/UKOOGShaleGasWellG uidelines.pdf accessed 28 February 2014.

75

Ibid.

76

The Coal Industry Act 1994, s.1.

17

from it.77 The Coal Authority will mainly base its decision on the results of desk top studies undertaken to evaluate the impact of such activities on its interests.78 The Well Consent When the chain of permits and actions are completed and obtained, the operator must inform the BGS of their intent to commence drilling and proceed to obtain the final well or fracking consent from DECC. The consent will be assessed and scrutinised on a case by case basis and will only be granted when DECC is satisfied that all other consents and permits are in place.79 Moreover, DECC will consider whether; the operator proposes efficient use of the relevant shale reserves; whether there is a need to impose limits on flaring and whether; a fracturing plan is needed to tackle to any seismicity risk.80 Timescales of the Planning and Permitting Process The planning and permitting process has no defined timescales, in fact DECC’s regulatory roadmap expressly states that the “roadmap does not define timescales for the planning and permitting process or individual steps within it.”81 Indicative timescales are established by the relevant regulatory authorities. As per the Parliamentary Economic Affairs Committee the table below highlights such indicative timescales.

Stage

Length of Time DECC

Issue of PEDL

Gained via licensing rounds

ERA

No indication given Local Authorities

Planning permissions

21 day consultation

EIA

13 – 16 weeks Environmental Agency

Notice of intention to drill

Served, 1 Month before drilling

Environmental permits

13 – 26 weeks

Health and Safety Executive Notice of intention to drill

Served 21 days prior to drilling

Figure 5: Timescales of the planning and permitting regime

Source: House of Lords

77

Coal Authority, 'Permits for Intersecting Disturbing or Entering Coal' (2013); available at:

coal.decc.gov.uk/en/coal/cms/services/permits/permits.aspx accessed on 11 February 2014.

78

Coal Authority, ‘Annual Report and Accounts 2012 – 2013 (2013) 13; available at:

http://coal.decc.gov.uk/assets/coal/publicationsandinformation/transparency-foi/7607-coal-authority-annualreport-and-accounts-for-2012.pdf accessed 11 February 2014.

79

DECC, ‘Fracking UK shale regulation and monitoring’ (DECC 2014) 3; available at:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/283834/Regulation_v3.pdf accessed 10 March 2014.

80

UKOOG (n 46).

81

Parliamentary Economic Affairs Committee, ‘The Economic Impact on UK Energy Policy of Shale Gas and

Oil (2014) 3rd Report of Session 2013 – 2014 published 8 May 2014, 73 – 75; available at: www.publications.parliament.uk/pa/ld201314/ldselect/ldeconaf/172/172.pdf accessed 8 May 2014

18

The Guidelines The above statutory framework is supplemented by the UK Onshore Shale Gas Well Guidelines (“Guidelines”) that were produced by a high level workgroup that included: operating and service companies, DECC (and the UKOOG), the HSE, the EA and SEPA.82 The Guidelines relate to aspects of exploration and appraisal and contain industry best practices; Guidelines for production and storage phases will follow. The guidelines are not mandatory and a joint venture may adopt an alternative approach to managing well integrity, fracturing operations or environmental management; conversely, adopting them will ensure that companies can demonstrate that they have adhered to all relevant regulations that apply to shale gas operations.83 The Guidelines are subdivided to the following: 

Well Integrity Guidelines;



Guidelines for the suspensions and Abandonment of Wells;



Guidelines on Qualification of Materials for the Suspension and Abandonment of Wells;



Guidelines for Well Operators on Well Examination;



Guidelines for Well Operators on Competency of Well Examiners; and



Guidelines on Competency for Wells Personnel.84

Operators who are members of the UKOOG, the representative body of the UK onshore oil and gas industry, sign up to the UKOOG Community Charter (“Charter”) which promotes open and transparent communication between the industry, stakeholder groups and the relevant communities.85 Amongst the Charter’s central objectives is ensuring that there is a continuous point of contact for local communities and engagement between them and the industry, communities are crucial for the success of a shale gas company’s drilling approvals

82

UKOOG (n 74).

83

UKOOG (n 74).

84

Stacey (n 44).

85

UKOOG, ‘Community Engagement Charter on Oil and Gas from Unconventional Reservoirs’ (July 2013)

(“Charter”); available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/256360/Publication_UKOOG_co mmunityengagementcharterversion6.pdf accessed 15 April 2014. UKOOG, ‘How to engage with Shale/Gas Hydraulic Fracturing Planning and Permitting’ (UKOOG, 13 January 2014); available at: http://www.ukoog.org.uk/about-ukoog/press-releases/66-how-to-engage-with-shale-gas-hydraulic-fracturingplanning-and-permitting accessed 15 April 2014.

19

process and are able to engage and influence the following: Pre-Application Consultation; ERA; Pre-Planning notices; Planning Authority Consultation; the EIA; and Environmental Permitting.86

Under the Charter, UKOOG members commit to pay £100,000 to local communities that host their operations during the exploration stage and to provide a 1% share of proceeds at the production stage to the local community.87 Moreover, operators are expected to publish an annual industry report to prove how the charter has been met and will be subject to regular review as the industry develops.88

Conclusions In the UK, the exploration and production of shale gas is still in its formative years and its continuous development is capable of changing the UK’s energy and environmental and socioeconomic landscape. On the premise that shale gas has positive aspects of potential shale gas production and that there is sufficient control to mitigate any risk, the government is eager to explore the sector to achieve energy security, economic growth, job creation and tax revenues. The government is already committed to incentivising oil and gas companies to invest in the sector; a new tax allowance is being introduced for oil and gas companies, (operating in shale) by reducing the tax rate on a portion of a company’s profits from 62% to 30% of 75% of their capital expenditure.89 Moreover, the Parliamentary Economic Affairs Committee recommended that shale development should be recognised as a national priority and that a new committee of the Cabinet, chaired by the Chancellor, should be established to ensure the UK’s commitment to “go all out for shale.”

From a regulatory point of view, the statutory legal framework and the consenting regime certainly provide legislative coverage but not necessarily legal adequacy. The European Parliament have concluded that there are important gaps in the legal framework despite the

86

Ibid.

87

Ibid.

88

Ibid.

89

HM Treasury, ‘Autumn Statement 2013’ (2013) 49; available at:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/263942/35062_Autumn_Stateme nt_2013.pdf accessed on 20 April 2014.

20

several legislative instruments that are relevant to fracking.90 This is mainly due to the fast pace development of fracking technologies to which the law cannot adapt. Moreover, there is a common consensus that the licensing and consenting regime is bureaucratic and time consuming; streamlining the process is fundamental to successful shale gas production.91 The regime remains untested in the context of shale gas and there are uncertainties as to the practicalities and timescales of the process.

In response, the regulatory bodies in the UK, provide that the environmental risks for exploration have been thoroughly assessed against the existing legal framework and that the regulation is robust and contains the right regulatory controls. Accordingly, the government already has plans to streamline the application process into a single application.92 In fact, the regulatory landscape in the UK is already more comprehensive than in the US and the legislation set high environmental thresholds.93 Further, the consenting regime as it stands is only for approving the exploration phase, operators will need to apply for planning permission at each stage (appraisal and production) and further regulation for these stages will develop and follow.94 Further, with the aid of light handed regulation and best practices, via UKOOG, the industry and the government can continue to cooperate and ensure that the regulation is developing alongside the technology. The industry is encouraging sensible regulation and acknowledging its importance due to the progressive technology and the lack of public confidence.95

90

European Parliament, 'Impacts of Shale Gas Oil Extraction on the Environment and on Human Health'

(2011)10; available at: europeecologie.eu/IMG/pdf/shale-gas-pe-464-425-final.pdf accessed 16 April 2014.

91

Poyry (n 31).

92

Mark Ellis-Jones (2014) Environmental Risks and Regulation of Shale Gas Exploration. The HAC Armoury

London, 19 March 2014 (Notes taken by Yanal Abul Failat) 93

LXL LLP, A Guide to the Energy Industry for the In-House Energy lawyer: the Gas and LNG Sectors (LXL

Energy Handbook 2012) 22 – 23.

94

Ellis-Jones (n 92).

95

Andre Griffin, Crisis, Issues and Reputation Management: A Handbook for PR and Communications

Professionals (Kogan Page Publishers 2014) 138.

21

Index of Abbreviations: Bcm:

Billion Cubic Metres.

BGS:

British Geological Survey

Bocardo:

Star Energy Weald Basin Limited and another v Bocardo SA [2010] UKSC 35

BSOR:

Borehole Sites and Operations Regulations 1995

Cuadrilla:

Cuadrilla Resources

DCR:

The Offshore Installations and Wells (Design and Construction etc) Regulations 1996

DECC:

Department of Energy and Climate Change

EIA:

Environmental Impact Assessment

ERA:

Environmental Risk Assessment

EPR 2010:

Environmental Permitting (England and Wales) Regulations 2010

Fracking:

Hydraulic Fracturing

Guidelines:

The UK Onshore Shale Gas Well Guidelines 2013

HSE:

Health and Safety Executive

MPA:

Mineral Planning Authority

NORM:

Naturally Occurring Radioactive Material

PEDL:

Petroleum Exploration and Development Licence

Petroleum Act:

Petroleum Act 1998

SEPA:

Scottish Environment Protection Agency

UKOOG:

UK Onshore Operators Group

Well Examination Scheme:

A complete independent examination of well design and construction

22

Bibliography: Primary Sources: Cases: 

Waters v Welsh Development Agency [2004] UKHL 19



Star Energy Weald Basin Limited and another v Bocardo SA [2010] UKSC 35.

Statute: 

The Petroleum Act 1934



The Mines (Working Facilities and Support) Act 1966



The Water Resources Act 1991



The Coal Industry Act 1994



The Petroleum Act 1998

Regulations and Orders 

The Conservation (Natural Habitats) Regulations 1994



The Borehole Sites and Operations Regulations 1995



The Town and Country Planning (General Permitted Development) Order 1995



The Offshore Installations and Wells (Design and Construction etc) Regulations 1996



The Offshore Installations Safety Case Regulations 2005



The Environmental Permitting (England and Wales) Regulations 2010



The Town and Country Planning (Environmental Impact Assessment) Regulations 2011



The Environmental Permitting (England and Wales) (Amendment) Regulations 2013

European Legislation 

The Habitats Council Directive 92/43/EEC

Light handed Regulation: 

UKOOG, ‘Community Engagement Charter on Oil and Gas from Unconventional Reservoirs’ (July 2013) (“Charter”); available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/256360 /Publication_UKOOG_communityengagementcharterversion6.pdf accessed 15 April 2014.

23

Secondary Sources Books 

Beard J, Environmental Chemistry in Society, Second Edition (CRC Press 2013)



Breyer J, Shale Reservoirs: Giant Resources for the 21st Century, AAPG Memoir 97 (AAPG 2012)



Daintith T, Finders Keepers? How the Law of Capture Shaped the World Oil Industry (Routledge 2010)



Energy and Climate Change Committee, Shale Gas: Fifth Report of Session 20102012 (Stationary Office 2011)



Griffin, Crisis, Issues and Reputation Management: A Handbook for PR and Communications Professionals (Kogan Page Publishers 2014)



LXL LLP, A Guide to the Energy Industry for the In-House Energy lawyer: the Gas and LNG Sectors (LXL Energy Handbook, 2012)



Reddy J, Clean Coal Technologies for Power Generation (CRC Press 2013)



Whitney G and Behrens C E, Energy: Natural Gas: the Production and Use of Natural Gas, Natural Gas Imports and Exports, EP Act Project, Liquefied Natural Gas (LNG) Import Terminals and Infrastructure Security (The Capitol Net Inc. 2010)

Articles Journal Articles 

Jensen B and Abul Failat Y, ‘Oil and Gas Joint Operating Agreements – Default Provisions, a Dilemma by Default’ (2013) 5 OGEL 4, www.ogel.org (OGEL, ISSN 1875-418X)



Morton MQ, 'Unlocking the Earth: a Short History of Hydraulic Fracturing' (2013) 10 (6) Geo ExPro 86



Stacey C, ‘Case Comment: Bocardo SA v Star Energy UK Onshore Ltd and another’ (2011) 2 (1) Aberdeen University Law Review 124

Working Papers 

Coal Authority, ‘Annual Report and Accounts 2012 – 2013 (2013); available at: http://coal.decc.gov.uk/assets/coal/publicationsandinformation/transparency-foi/7607coal-authority-annual-report-and-accounts-for-2012.pdf accessed 11 February 2014

24



Coal Authority, 'Permits for Intersecting Disturbing or Entering Coal' (2013); available at: coal.decc.gov.uk/en/coal/cms/services/permits/permits.aspx accessed on 11 February 2014



DECC, 'Developing Onshore shale Gas and Oil - Facts about Fracking' (2013); available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/265972 /Developing_Onshore_Shale_Gas_and_Oil__Facts_about_Fracking_131213.pdf accessed 04 March 2014



DECC, 'Fracking UK Shale: Planning Permission and Communities (2014); available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/283832 /Planning_v3.pdf accessed on 24 March 2014



DECC, ‘Fracking UK shale regulation and monitoring’ (DECC 2014); available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/283834 /Regulation_v3.pdf accessed 10 March 2014



DECC, 'Gas Generation Strategy' (2012) Presented to Parliament by the Secretary of State for Energy and Climate Change by Command of Her Majesty, Cm 8407; available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/65654/ 7165-gas-generation-strategy.pdf accessed on 21 January 14



DECC, 'Planning Practice Guidance for Onshore oil and Gas’ (2013); available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/224238 /Planning_practice_guidance_for_onshore_oil_and_gas.pdf accessed 24 March 2014



DECC, 'The Unconventional Hydrocarbon Resources of Britain's Onshore Basins – Shale Gas’ (2012); available at:



https://www.og.decc.gov.uk/UKpromote/onshore_paper/UK_onshore_shalegas.pdf accessed 24 January 2014



DECC, 'Written Statement by Edward Davey: Exploration for Shale Gas' (2012); available at: https://www.gov.uk/government/speeches/written-ministerial-statementby-edward-davey-exploration-for-shale-gas accessed 21 January 2014



Energy Information Administration, 'Technically Recoverable Shale Oil and Shale Gas Resources: An Assessment of 137 Shale Formations in 41 Countries outside the United States’ (2013); available at: 25

www.eia.gov/analysis/studies/worldshalegas/pdf/fullreport.pdf accessed 21 January 14 

Environment Agency, ‘An Environmental Risk Assessment for Shale Gas Exploratory Operations in England’ (2013) Version 1; available at: http://a0768b4a8a31e106d8b050dc802554eb38a24458b98ff72d550b.r19.cf3.rackcdn.com/LIT_8474_fbb1d4.pdf accessed 12 February 2014



Environment Agency, ‘Guidance Note: regulation of Exploratory Shale Gas Operations (2013); available at: http://www.groundwateruk.org/downloads/EA_ShaleGasRegulation.pdf accessed 12 February 2014



Environment Agency, ‘Onshore Oil and Gas Exploratory Operations: a technical guidance (2013) Consultation Draft, 8; available at: https://consult.environmentagency.gov.uk/portal/ho/climate/oil/gas?pointId=2582509 accessed 22 March 2014



Executive Agency of the Department of Health, ‘Review of the Potential Public Health Impacts of Exposures to Chemical and Radioactive Pollutants as a Result of Shale Gas Extraction’ (2013) Draft for Comment; available at: http://www.hpa.org.uk/webc/HPAwebFile/HPAweb_C/1317140158707 accessed 23 January 2014



HM Treasury, ‘Autumn Statement 2013’ (2013); available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/263942 /35062_Autumn_Statement_2013.pdf accessed on 20 April 2014



Institute of Directors, ‘Britain’s Shale Gas Potential’ (2012) Infrastructure for Business 3; available at: file:///C:/Users/Yanal/Downloads/IoD_Britains_shale_gas_potential.pdf accessed 21 January 2014



Parliamentary Office of Science and Technology, 'UK Shale Gas Potential' (July 2013); available at: www.parliament.uk/documents/post/ShaleGas_POSTbox.pdf accessed on 24 January 14



Poyry, ‘Macroeconomic Effect of European Shale Gas Production (November 2013) Where are we Now?’ (2014) 7; available at: http://www.fraw.org.uk/files/extreme/poyry_2014.pdf accessed on 23 February 2014

26



PWC, 'Energy Transformation: The Impact on the Power Sector Business Model’ (2013) 13th PwC Annual Global Power and Utilities Survey, 12; available at: http://www.pwc.com/gx/en/utilities/global-power-and-utilities-survey/assets/pwcglobal-survey-new.pdf accessed 22 January 14



Royal Society and the Royal Academy of Engineering, 'Shale Gas Extraction in the UK: a review of hydraulic fracturing’ (June 2012) 4; available at: https://royalsociety.org/~/media/Royal_Society_Content/policy/projects/shalegas/2012-06-28-Shale-gas.pdf accessed 18 March 2014



UKOOG, ‘Fact Sheet: Onshore Oil and Gas Regulation’ (2014) http://www.ukoog.org.uk/images/ukoog/pdfs/fact%20sheets/regulation.pdf accessed 11 February 2014



UKOOG, 'UK Onshore Oil and Gas in the UK (2013); available at: http://www.ukoog.org.uk/elements/pdfs/UKOOG%20Onshore%20Oil%20and%20Ga s%20in%20the%20UK.pdf accessed 22 January 14

Other Secondary Sources Websites and Blogs: 

Brierley M, 'The Future of Shale Gas in the UK' (New Statesman 2014); available at: http://www.newstatesman.com/business/2014/01/future-shale-gas-uk accessed 21 January 2014



British Geological Survey, 'New Shale Gas Resource Figure for Central Britain' (BGS 2014); available at: https://www.bgs.ac.uk/shalegas/#ad-image-0 accessed 21 January 14



DECC, ‘Oil and Gas: Petroleum Licensing Guidance’ (Government Official Site, 4 December 2012); available at: https://www.gov.uk/oil-and-gas-petroleum-licensingguidance#types-of-licence accessed 10 February 2014



DECC, 'Preparing for the 14th Round of Onshore Oil and Gas Licenses' (DECC, 18 December 2013); available at :< blog.decc.gov.uk/2013/12/17/preparing-for-the-14thround-of-onshore-oil-and-gas-licences/> accessed 10 February 2014



Environment Agency, ‘Unconventional Gas Permits’ (EA, 2014) available at: http://www.environment-agency.gov.uk/business/topics/134508.aspx accessed 18 February 2014

27



HSE, ‘Shale Gas’ (HSE, 2014); available at: http://www.hse.gov.uk/shalegas/about.htm accessed 01 April 2014



Petroleum Economist, 'The Slow Rise of Global Unconventional Gas' (Petroleum Economist 14 January 2014); available at: http://www.petroleumeconomist.com/Article/3297089/News-Analysis-Unconventional/The-slow-rise-ofglobal-unconventional-gas.html accessed 21 January 14



Shale Gas Europe, 'The UK's Oil and Gas Industry’ (Shale Gas Europe 2013); available at: www.shalegas-europe.eu/en/index.php/news-room/blog/entry/the-uk-sonshore-oil-and-gas-industry accessed 22 January 14



UKOOG, 'UK Onshore Shale Gas Well Guidelines' (1 February 2013); available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/185935 /UKOOGShaleGasWellGuidelines.pdf accessed 28 February 2014.



UKOOG, 'Who is Responsible for What?' (UKOOG 2014); available at: www.ukoog.org.uk/knowledge-base/regulation/who-is-responsible-for-what accessed 11 February 2014

Newspaper: 

Chazan G, Big Fish a Gamechanger for UK Shale Tiddlers (Financial Times, 16 January 2014)

Lectures and Seminars: 

Ellis-Jones M (2014) Environmental Risks and Regulation of Shale Gas Exploration.

The HAC Armoury London, 19 March 2014 (Notes taken by Yanal Abul Failat)



Rogers H (2014) the Gap Between Aspiration and Reality. The Shale Gas Forum, HAC Armoury London, 18 March 2014 (Notes taken by Yanal Abul Failat

Personal Communication: 

Email from DECC to Yanal Abul Failat on 19 February 2014

28