Hydraulic Fracturing (England & Wales)

The Onshore Hydraulic Fracturing (Protected Areas) Regulations 2016 are made 10th March 2016 and will come into force when section 4A of the Petroleum Act 1998 (inserted by s.50 of the Infrastructure Act 2015) enters into force.

Section 4A of the Petroleum Act 1998 sets out onshore hydraulic fracturing safeguards. In particular, it creates 11 pre-conditions that have to be complied with before the Secretary of State will issue a well consent authorising the drilling of a well for onshore hydraulic fracturing. In addition to the 11 pre-conditions, the Secretary of State must also be satisfied that it is appropriate to issue the well consent. 

The Onshore Hydraulic Fracturing (Protected Areas) Regulations 2016 define the terms “protected groundwater source areas” and “other protected areas” for the purposes of section 4A of the Petroleum Act 1998.

Section 50 of the Infrastructure Act 2015 inserts sections 4A and 4B into the Petroleum Act 1998. Section 4B sets out supplementary provisions applicable to section 4A, and is already in force (Infrastructure Act Commencement Order No. 4).

Conditions 5 and 6 (of the 11 conditions in section 4A) provide that associated hydraulic fracturing is not to take place in “protected groundwater source areas” or “other protected areas”. 

The 2016 Regulations are found here.

Section 50 of the Infrastructure Act is found here.

Energy Bill 2015-2016 (UK)

Happy New Year, and welcome to 2016!

I am waiting today for the second reading of the Energy Bill 2015-2016. Further blog posts will be at the end of January.

In the meantime, find here the summary of the Energy Bill as it returned to the Commons from the Lords, for this second reading.

The Energy Bill (when enacted) will:

  1. Formally establish the Oil and Gas Authority (OGA) as an independent regulator of the UK Oil and Gas industry, which will take the form of a government company, charged with (amongst other matters) the asset stewardship and regulation of domestic oil and gas recovery. 
  2. Transfer the Secretary of State for Energy and Climate Change’s existing regulatory powers in respect of offshore oil and gas to the OGA. It will transfer the Secretary of Stateʹs existing regulatory powers in respect of onshore oil and gas in England to the OGA and in relation to onshore oil and gas in Scotland and Wales will respect the changing devolution position. The Secretary of State’s environmental regulatory functions in relation to oil and gas would not be transferred.
  3. Give the OGA additional powers including: access to company meetings; data acquisition, retention and transfer; dispute resolution; and sanctions.
  4. Introduce provisions in relation to charges for the offshore oil and gas environmental regulatorʹs services to the industry.
  5. Make legislative changes to remove the need for the Secretary of State’s consent for large onshore wind farms (over 50 Mega Watt (MW)) under the Electricity Act 1989, acting in tandem with other measures to, in effect, transfer the consenting of onshore wind farms into the planning regime in the Town and Country Planning Act 1990.
  6. Make an amendment to the Climate Change Act 2008 preventing, from 2028, the net UK carbon account being calculated taking into account carbon units derived from the European Union Emissions Trading System.

Within the Department of Energy and Climate Change (ʺDECCʺ), the offshore Oil and Gas Environment and Decommissioning Unit (ʺOGEDʺ) is the body responsible for environmental regulation functions relating to the offshore oil and gas industry on behalf of the Secretary of State. OGED has been charging fees annually to operators in the territorial sea and the UKCS (UK Continental Shelf) to cover the costs of its functions. OGED recently reviewed the current fees charged by the Secretary of State to ensure they were in line with current Treasury Guidance. As a result of this work, it became clear that whilst the majority of fees that were recovered were properly covered by fee schemes, there were elements that were not provided for by the current legislation. The Bill therefore validates those charges that have already been raised without authority. The Bill also provides that the Secretary of State can charge a fee in future for two sets of functions.

The UK Government made a manifesto commitment to decentralise decision making on new onshore wind farms. Ministers have said that onshore wind energy development should only get the go‐ahead if supported by local people (Written Ministerial Statement). DECC is implementing measures, including through the Energy Bill, to help fulfil the commitment by removing the requirements for a consent from the Secretary of State for Energy and Climate Change in relation to the construction, extension or operation of onshore wind farms with a capacity greater than 50MW. In future, local authorities (or potentially the Welsh Ministers in the case of Wales) will be the primary decision‐makers for all onshore wind projects including those with a capacity greater than 50MW.

Infrastructure Act 2015 (England and Wales)

I posted earlier about the passage of the Infrastructure Act through the various stages of law-making. It is now law, and found here.

Non- Native and Invasive Species

Part 4, sections 23 to 25, insert new controls into the Wildlife and Countryside Act 1981 (as amended) to provide for species control orders and agreements, and powers of entry, applicable in England and Wales.

Hydraulic Fracturing

Section 43 sets out the right to use deep-level land (land below 300 metres) for the purposes of petroleum extraction and geothermal energy.

Section 44 qualifies this right and details the ways and purposes for which this right may be exercised. Note: Section 44(3) enables the land to be left in a different condition after use, including in respect of any infrastructure on or any chemical residue in the land.

Sections 43 and 44 bind the Crown.

Section 50 inserts new Sections 4A and 4B into the Petroleum Act 1998 (as amended) to provide for specific environmental safeguards in respect of onshore hydraulic fracturing. 

New Section 4B(4) (of the Petroleum Act) stipulates that regulations made by statutory instrument will specify—

(a) the descriptions of the areas that will be “protected groundwater source areas”, and

(b) the descriptions of the areas that will be “other protected areas” for the purposes of section 4A

(a) and (b) are line items 5 and 6 of the Column 1 conditions that must be satisfied before a well consent may be granted as an onshore licence under the Petroleum Act in England and Wales).

New Section 4B(5) (of the Petroleum Act) stipulates that the statutory instrument which contains the regulations under Section 4B subsection (4) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.

New Section 4B(6) stipulates that the draft of the first such regulations must be laid before each House of Parliament on or before 31 July 2015.

Please note, the Infrastructure Act does not apply in Scotland or Northern Ireland. Please see the Scottish Government announcement on hydraulic fracturing in Scotland made 28th January – here.

The Infrastructure Act and the changes to existing Laws will be inserted into Cardinal EHS Legislation Registers – which contain Consolidated Law – available to subscribers.

MARPOL Annex VI: Fuel Oil Sulphur

From 1st January 2015, the sulphur content in ships’ fuel must be below 0.1 % in Sulphur Emission Control Areas (SECA).

Background

International regulations for pollution from ships are contained in the IMO “International Convention on the Prevention of Pollution from Ships”, known as MARPOL 73/78. On 27 September 1997, the MARPOL Convention was amended by the “1997 Protocol” which includes Annex VI titled “Regulations for the Prevention of Air Pollution from Ships”. In particular, Annex VI regulates emission of sulphur oxides (SOx), nitrogen oxides (NOx) and particulate matter. Annex VI entered into force on 19th May 2005 and in October 2008 the International Maritime Organisation (IMO) adopted a set of amendments to Annex VI of the MARPOL Convention.

The set of amendments to Annex VI of the MARPOL Convention introduces new standards for emission from ships of sulphur oxides (SOx), particulate matter and nitrogen oxides (NOx). The most stringent changes relate to SOx emission.

Reduction of SOx and particulate matter emission is achieved by limiting the maximum sulphur content of the fuel oils used onboard.

Two sets of emission and fuel quality requirements are defined by Annex VI: (1) global requirements, and (2) more stringent requirements applicable to ships in Sulphur Emission Control Areas (SECA).

On the global level, the sulphur cap is reduced initially to 3.50% (from the current 4.50%), effective from 1st January 2012; then progressively to 0.50 %, effective from 1st January 2020 (or in 2025 at the latest), subject to a feasibility review to be completed no later than 2018.

For SECA, the requirements are – from 1st July 2010, the maximum sulphur limit is reduced to 1.00%, (from 1.50%), while from 1st January 2015, sulphur content in ships’ fuel must be below 0.1 %.

Sulphur Emission Control Areas (SECA)

Currently, four regions are identified as Sulphur Emission Control Areas. NB: an Emission Control Area can be designated not only for SOx and particulate matter (PM) emission but also for NOx emission, or all three types of emissions from ships. These SECA are:

1. Baltic Sea area – as defined in Annex I of MARPOL (SOx only);

2. North Sea area – as defined in Annex V of MARPOL (SOx only);

3. North American area – as defined in Appendix VII of Annex VI of MARPOL (SOx, NOx and PM); and

4. United States Caribbean Sea area – as defined in Appendix VII of Annex VI of MARPOL (SOx, NOx and PM).

Illinois’ Hydraulic Fracturing Act (US – Illinois)

Illinois’ Hydraulic Fracturing Regulatory Act (HFRA) is a law that applies to all wells in which high-volume, horizontal hydraulic fracturing (fracking) operations will take place in Illinois.

The Illinois Department of Natural Resources (DNR) regulates the oil and gas industry and has primary authority to administer the HFRA with the assistance of the Illinois State Geological Survey, the Illinois State Water Survey, the State Fire Marshal and the Illinois Environmental Protection Agency.

The HFRA is found here.

Every applicant for a permit under the HFRA shall first register with the DNR at least 30 days before applying for a permit. If you would like to register or learn more, Instructions and Registration Process are provided.

Infrastructure Bill 2014-2015 (UK) Update

My last post on the Infrastructure Bill is here. NB: the Commons Library Note linked from my earlier post has been since updated (20 October 2014) and provision for a right of access for shale gas/hydraulic fracturing is now included in the Infrastructure Bill.

The Bill has cleared the House of Lords and returned to the House of Commons.

The Infrastructure Bill 2014-2015 makes provision for a range of matters, including: (updated)

(A) Environmental control of plant and animal species (Part 3)

The Wildlife and Countryside Act 1981 will be amended to allow species control agreements (between regulators and land owners) and orders to be made by regulators in England and Wales (as they can be in Scotland) for invasive non-native species of plant or animal, or for a species of animal that is no longer normally present in Great Britain.

A species is non-native if it is listed in Part 1 or Part 2 of Schedule 9, or (if an animal) it’s natural range does not include any part of Great Britain or it has been introduced to Great Britain.

The regulators will include Natural England, the Environment Agency, and the Forestry Commissioners in England, and the Natural Resources Body for Wales in Wales.

The definition of owner (who can enter into species control agreements) includes leaseholders.

The Secretary of State will be obliged to issue a Code of a Practice in relation to species control agreements and orders in England. The Welsh Ministers must issue a similar Code of Practice in Wales.

(B) Shale Gas and Hydraulic Fracturing: right to use deep-level land (Sections 38 & 39)

This previously was not included in the Bill, whilst consultation was occurring. It is now included as Section 38. Section 39 clarifies this right, and confirms the right to use may extend to using any chemical. Sections 38 and 39 also apply to the Crown.

The Bill as brought from the Lords is here.

Infrastructure Bill 2014-2015 (UK)

This Bill (to be enacted as an Act and started in the House of Lords) is in 5 Parts with 5 Schedules. It applies mainly to England and Wales, but some elements also apply to Scotland.

Part 2 makes provision (England and Wales) for the control of invasive non-native species through species control agreements and orders, similar to the existing system in Scotland.

Part 3 makes provision about Nationally Significant Infrastructure Projects (NSIP) (England and Wales) and certain certain cross-border oil and gas pipelines (Britain), under the Planning Act 2008 (the 2008 Act deals with matters that are not devolved as regards Wales and Scotland). Amendments relating to the deemed discharge of planning conditions apply in England only.

NB: section 22 of the Planning Act 2008 is to be amended to provide that highway development (roads) will be NSIP if a strategic highways company is or will be the highway authority (Part 1 deals with strategic highways companies).

Part 4 and Schedule 5 make provision about a community electricity right to buy a stake in a renewable electricity development in or adjacent to the community (Britain and internal waters and the Renewable Energy Zone, except the territorial sea next to Northern Ireland).

Invasive Species

My latest post on EU Invasive Species is here. In this post I outline the position on non-native invasive species in Scotland (and England and Wales).

At present, DEFRA’s and the Welsh Government’s network bodies must enter into voluntary agreements with landowners over gaining access to eradicate non-native invasive species. Around 5% do not give authority. In contrast to powers available under plant and animal health to combat pests and diseases, government bodies have no power (England and Wales) to compel landowners to act, nor do they have powers of surveillance nor powers to enter onto land to carry out work.

The proposal is to insert a new subsection 14(4A) into the Wildlife and Countryside Act 1981 to provide for measures relating to species control agreements and species control orders to be contained in a new Schedule 9A.

Nationally Significant Infrastructure Projects (NSIP)

The Planning Act 2008 established the regime governing applications in respect of NSIP. Changes are proposed to enable the Examining authority (provided for by the Act) to be appointed earlier in the process, and to be comprised of two people (presently it can be one person, or three, four or five people).

Started in the House of Lords, however, the Bill does not include measures that have been widely speculated upon prior to its publication relating to hydraulic fracturing or fracking, and to zero carbon homes.

Bill progress (and explanatory notes) are here.

Shale Gas and Hydraulic Fracturing

The House of Commons Library Standard Note (updated 5 June 2014) Shale Gas and Fracking is here.