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.

Land Rights (Tribal and Indigenous Peoples) (Extractive Industries)

The Inter-American Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights (IACtHR, Court) are the two principal and autonomous organs of the Organization of American States, whose mission is to promote and protect human rights in the American hemisphere.

IACHR document (30 December 2009) – Indigenous and Tribal Peoples’ Rights over their Ancestral Lands and Natural Resources, norms and jurisprudence of the Inter-American Human Rights System is here.

The IACtHR press release of its decision (2012) in Sarayaku v Ecuador is here.

The IACtHR, Court decision (2007) in Saramaka v Suriname is here.

These judgements address the rights of indigenous peoples when faced with commercial projects on their ancestral lands.

In summary, the Inter-American human rights system addresses the rights of indigenous communities in the following manner.

The Inter- American Commission decides petitions on the merits, issues precautionary measures, holds thematic hearings, and publishes reports concerning indigenous peoples throughout the hemisphere.

It has also refers various matters to the Inter-American Court for binding resolution. In response, the Court issues provisional measures and judgments with respect to indigenous rights.

There is no Court derived definitive and exhaustive definition of indigenous peoples, although self-identification is stressed, and the Court identifies as significant (for the purposes of determining who if any will have rights): peoples who own “social, cultural and economic traditions different from other sections of the national community,” who “[identify] themselves with their ancestral territories,” and who “[regulate] themselves, at least partially, by their own norms, customs, and traditions.” (Saramaka related to tribal peoples)

Saramaka’s interpretations permit commercial projects that do not “fully extinguish” a way of life, or that do not endanger the “very survival” of a people. But observers identify this is at variance with the Court’s radical affirmation of Article 21 (American Convention) as a self- determination principle “calling for [a people’s right] to freely determine and enjoy their own social, cultural and economic development.” They also conflict with earlier case law, which, inter alia, required special measures of protection to achieve a vida digna for indigenous populations.

In Sarayaku the State had granted a communal property title to the Sarayaku (Kichwa indigenous people of Sarayaku, Ecuadorean Amazon), but it had reserved a number of rights, including rights to subsurface natural resources. Ecuador then signed a contract with a foreign company to initiate oil exploration.

In this case, the Court found the State responsible for violating rights of the community of Sarayaku, their ancestral lands and cultural identity, for not granting effective legal protection, and for having placed their life and personal integrity in danger in the presence of seismic explosives within their territory.

The Sarayaku judgment key elements:

– Article 21 protects rights to communal property
– the indigenous community itself suffered the collective property violation
– the Sarayaku, as a group, experienced other rights violations as well.

NB: In previous judgments, the Court had only found violations “to the detriment of the [individual] members” of a community, even if the right to communal property was breached. Such a formulation recognized the Convention’s Article 1, the central provision that obligates States Parties to respect and ensure the treaty’s rights to “all persons subject to their jurisdiction”—”person” defined as “every human being.”

In this sharp break with the past, the Sarayaku Court has apparently adopted a wider definition of “person,” following the views of bodies such as the U.N. Committee on Economic, Social and Cultural Rights.

– Article 1 of the ICCPR and ICESCR (international treaties in the area) no longer serves as a reference point, despite the fact that Ecuador had already ratified both treaties. NB: the Court avoided the term ‘self-determination’ altogether.

– The judgment acknowledged Saramaka’s three safeguards: effective participation, reasonable benefits, and the impact assessment.

NB: it did not examine the concept of benefits, also the Court’s standard on consent was ignored. Saramaka had held that, in specific circumstances, the “effective participation” of the indigenous community actually required the group’s consent for a project to move forward.

Sarayaku devoted a great deal of attention to the baseline of effective participation: the state obligation to consult indigenous populations before projects begin. Saramaka had already asserted that this constituted a “right to consultation” for communities whose traditional lands were threatened. The Court in Sarayaku noted that Ecuadorian law “fully recognized this right.” Sarayaku then surveyed regional law on this subject, and recognized its status in international instruments such as the ILO No. 169. The Court’s assessment sought to establish the right to consultation not only as a norm protected in the American Convention, but also as a “general principle of international law.”

The above text is informed by analysis found here.

Shale Gas and Oil Right of Access (UK)

Update: the Government’s Consultation Response (published 25th September 2014) is here.

My recent post identifying the Tort of Trespass which restricts or prevents access is here.

The Tort of Trespass exists in Common Law.

In summary – ownership of property gives ownership of the strata beneath the surface of the land (in the absence of any express or implied alienation), and therefore prima facie possession of them. Installing pipelines or other intrusions is therefore a trespass; but, if it does not interfere with the owner’s enjoyment of his land, damages will be low. This was last tested in Star Energy UK Onshore UK Limited Bocardo S A.

In this case a trespass was found even though under the Petroleum (Production) Act 1934, all petrol in strata in Great Britain belongs to the Crown (the State), and the Crown is able to grant licences to bore for and get petroleum, which it had done.

The UK Government is now consulting on proposals to reform the procedure for gaining underground access to oil or gas deposits and geothermal energy.

The consultation examines the existing procedures by which companies who wish to extract oil, gas or geothermal energy obtain access to underground land, and the problems raised by these procedures.

The consultation sets out the policy position in relation to underground access rights for shale and geothermal operations.

The policy contains three elements: Access rights, Payments for access, and Notification of Access.

Here is the UK Government Factsheet.

The consultation document is here.

Consultation ends 15th August 2014.

The Government’s preferred solution is presented, which consists of three elements: an underground right of access below 300m, a voluntary payment from industry and a notification for access. The voluntary payment would be supported by a statutory reserve power in the case that industry defaulted on their arrangement. Notification would be made in the form of public announcements to the community in question.

This solution would be implemented in legislation.

Fracking and Civil Law Litigation (US)

Verdict in Parr v Aruba Petroleum, Inc, No. 11-1650 (Dallas Co. Ct at Law, filed Mar. 2011) is awarded to the Plaintiffs (the Parrs). According to a blog post by their lawyer (Earthworks link) the verdict included $275,000 for the Parr’s property loss of market value and $2 million for past physical pain and suffering by Bob and Lisa Parr and their daughter, $250,000 for future physical pain and suffering, $400,000 for past mental anguish.

The suit sought compensation for intentionally causing a nuisance on the Parr’s property which impacted their health and ruined their drinking water.

Aruba Petroleum plans to appeal the verdict.

Earthworks has further information and links.

Tier 3 Vehicle Emission and Fuel Standards (US)

New vehicle emission and lower fuel sulphur standards were agreed March 3rd 2014. These will come into force in 2017.

“Control of Air Pollution from New Motor Vehicles: Tier 3 Emission and Fuel Standards” (or “Tier 3”) are developed by the U.S. Environmental Protection Agency (USEPA) under the US federal Clean Air Act (CAA).

The current USEPA’s Tier 2 Vehicle and Gasoline Sulfur Program, which was finalized in February 2000, took a systems-based approach to motor vehicle pollution by setting standards for both passenger vehicles and their fuel (gasoline). The program set stricter tailpipe and evaporative emissions standards for criteria pollutants from vehicles beginning with model year 2004 and phasing in through 2009. The program also lowered the sulfur content of gasoline to a 30 parts per million (ppm) refinery average, 80 ppm per-gallon cap, and 95 ppm downstream cap; beginning in 2004 and phasing in through 2008. The potential to extend the phase-in for small refiners and approved Gasoline Phase-In Area refiners through the end of 2010 was provided in the Highway Diesel Rule (66 FR 5136, January 18, 2001) in exchange for early compliance with the diesel program.

Similar to the Tier 2 rule, the new rule “Control of Air Pollution from New Motor Vehicles: Tier 3 Emission and Fuel Standards” (Tier 3) is a comprehensive, systems-based approach to address the impact of light-duty vehicles on air quality and health. The Tier 3 rule establishes new standards for light-duty vehicles and new fuel standards for gasoline (including a 10ppm sulphur standard).

Information on the USEPA Tier 3 Emission and Fuel Standards Program is here. (NB: the final rule is not yet published)