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.

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.

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.

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.

Shale Gas and Oil Fracking (UK) – update

Information on the UK Policy towards hydraulic fracturing (fracking) and shale gas is found here.

This location contains links to related documents on the topic that are in the public domain.

The Department’s Blog on the 14th round of onshore oil and gas licences is here.

The Strategic Environmental Assessment (SEA) document that has been prepared is here.

The above documents and links address statutory regulations (planning and environmental).

In addition, 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.

When planning approval is granted to drill, and a Trespass is claimed, it may be open to the energy developer to apply for a statutory easement for the necessary rights. This would be tested in the courts.

Draft Technical Regulations on Oil and Gas Exploration and Exploitation (South Africa)

The South Africa Department of Mineral Resources has released draft technical regulations on oil and gas exploration and production, including shale gas and hydraulic fracturing. These draft regulations were gazetted on 15 October 2013, with public consultation pegged for 30 days.

The draft technical regulations are found here.

The purpose of the technical regulations is to update the current regulatory framework, particularly in relation to Hydraulic Fracturing, and prescribe the American Petroleum Institute (API) standards for aspects such as well casing and blowout protection.

Fracking Bill (US California)

Senate Bill 4 (Sen. Fran Pavley) (US California) has passed the Senate and awaits Assembly floor vote (California legislature) (source: The Sacramento Bee).

Per The Sacramento Bee – this Bill if enacted would have energy companies inform communities of planned tracking projects, mandate greater disclosure on the chemicals to be used, and put in place a permitting system for tracking (triggering the type of environmental review associated with conventional oil & gas wells that currently require permits).

See here for The Sacrameto Bee update on developments, note the link to a parallel court action further down on the webpage.