Essay: Is Fracking Adequately Regulated?

Hydraulic fracturing or ‘fracking’ has been the topic of much debate over recent years in the UK due to the desire to exploit the UK’s significant onshore resources of shale gas . In this essay ‘government’ refers to the Conservative-led governing body of England. Current government policy is aiming to start shale gas fracking as soon as possible. There has been a lot of public opposition to the Government’s stance. Yet, the Government still stands by the belief that fracking will benefit the security of supply and promote the transition ‘to a low carbon economy’ . In this context, ‘adequately regulated’ is the situation where the UK’s regulations ensure that the safety and health of the environment and population will not be degraded in favour of the economy. This essay argues that fracking regulations in the United Kingdom seem procedurally adequate but are not substantively adequate for three key reasons. Firstly, the Government has framed their approach to fracking in a way that is virtually inaccessible to the British public. Furthermore, there is a serious lack of knowledge of the consequences of fracking upon the environment, and the information we do have leaves a lot of ambiguity. Lastly, it is important to analyse England’s substantive and procedural approach and compare it to that of Scotland.
The Government’s manipulation of regulatory ‘dexterity’ and regularity ‘domain’ to create the illusion of adequate fracking regulation
The Government has fought to emphasise the rigorous nature of the UK regulatory controls. However, it has also argued against the need for specialist regulation in this area. This reflects the Government’s strategies of regulatory ‘domain’ (looking at legislation in the abstract) and regulatory ‘dexterity’ (looking at legislation in detail). Framing involves ‘the social construction of reality’. It is an issue ‘which invites interpretation’ and ‘is likely to differ substantially depending on the interests of those involved’ . This underpins a key issue with fracking in the UK; regulatory ‘domain’ and regulatory ‘dexterity’ are ways in which the Government can ‘frame’ fracking issues in a way that promotes their aims, often at the expense of due process, the health of the environment and the health of the British public, as will be exemplified throughout this essay.
When applying arguments of regulatory ‘dexterity’, the Government places emphasis on the market-transforming potential of a new supply of shale gas . These arguments are used to promote fracking as a positive innovation that has different end products and new benefits compared with traditional gas production . The focus of the Government is to eliminate regulation that inhibits its development of fracking. It can therefore be argued that in doing so, the Government is not ensuring that fracking is adequately regulated as the focus is placed on speeding up the fracking process, rather than guaranteeing the protection of the environment and population’s health from the risks of fracking.
The Government has decided to leave much of the substantive rules as they are while making new provisions for implementation . An important example of ‘regulatory dexterity’ is the Finance Act 2014. This Act results in an effective tax rate of 30% as the new onshore allowance exempts a portion of profits from the supplementary charge . Before this Act, profits from oil and gas extraction were taxed at a total rate of 62% . This tax reduction provides clear motivation for industries that can consequently make a higher profit from the fracking industry. This is concerning as it encourages companies to rush to start fracking.
The Government has introduced two pieces of secondary legislation in order to streamline the planning procedure . This demonstrates the insufficient level and quality of regulation in England concerning fracking as the ‘new’ regulations being introduced make it easier to frack and have not been given the appropriate level of scrutiny . This demonstrates the urgency felt by the Government to reform certain aspects of regulation that cover fracking. It also suggests that ‘regulatory dexterity’ often leads to requirements of due process not being fulfilled and a manipulative use of delegated legislation that allows changes to go almost unnoticed.
The Government uses regulatory ‘domain’ in order to create an environment in Britain where it is easier for fracking to commence. The Government claims the general regulations that are already in existence, found in The Petroleum Act 1998 for example, are broad enough to cover fracking so new and specific regulations are not necessary. The lack of data around fracking means that the Government cannot be sure that these regulations are suitable. Furthermore, there is a clear sense of fear around introducing new legislation covering fracking as the Government does not want to hinder potential development. The former Minister of State for Energy, Michael Fallon declared: ‘we are absolutely opposed to further regulation in this particular area’ . However, as fracking is an industry new to Britain, new regulations are needed in order to sufficiently cover potential risks. Broad definitions ultimately mean that the regulations are too vague and will not be able to appropriately cover the specific issues of fracking. This is supported by the European Commission’s findings that despite EU legislation seeming applicable, ‘the interpretation of applicable EU legislation is unclear, while other environmental problems remain unaddressed’ . Furthermore, the European Parliament has stated that it is ‘unclear whether the current regulatory framework of EU legislation provides an adequate guarantee against the risks . . . resulting from shale gas activities’ . This is particularly important as the UK relies on the EU for much of its environmental legislation and thus is concrete evidence of the inadequacy of fracking legislation.
Environmental groups have pushed for a more fit for purpose dedicated fracking regime as a minimum . Friends of the Earth argue that ‘some potential impacts are simply not considered at all’ . The lack of dedicated regulations means that there are ‘few industry-specific checks and balances on fracking’, potentially resulting in environmental harm going unnoticed. The Infrastructure Act 2015 was introduced after Bocardo , and has been criticised by Caroline Lucas as both rushed and ignoring public interest . The Act gives companies the right to drill at least 300 metres below surface level , effectively avoiding trespass issues. As it is difficult for shale gas operations to fit within EIA schedules , this means that while in principle the law applies to shale gas, an Environmental Impact Assessment may be avoided by fracking companies due to this loophole at the exploratory stage. Therefore, these pieces of legislation give significant leeway to fracking companies which could have harmful impacts upon the environment, consequently demonstrating the need for an improved fracking regime.
It seems there is no single ‘frame’ that all political actors or lawyers can agree on. This is a very politically sensitive issue which has provoked strong opinions on both sides of the debate. Fracking affects some communities on a local level meaning that certain people are strongly against fracking as they are personally affected. Whereas others are more likely to view fracking favourably if the potential harms do not seem relevant to them.
The detrimental lack of knowledge and evidence of the risks to the health of the environment and to the population
Fracking is not adequately regulated because the current regulations will allow for communities close to fracking sites to be negatively affected. According to the Mayor of Malton, the closest town to the KM8 well, ‘If the whole of the area is industrialised it’ll have a disastrous effect on property values and kill the tourist trade’ . In a written ministerial statement Greg Clark, the business secretary, told local authorities they should abide by a definition of fracking that ‘campaigners say is looser than the current one.’ Unfortunately, there is not enough research to give a conclusive answer to the question of whether hydraulic fracturing poses health risks to people living near the drilling sites. However, there has been a lot of concern expressed about this. One example being the responses to the 2014 DECC Consultation: ‘There is a wealth of scientific [evidence] that suggests it is too dangerous to go ahead with, which is why Germany, France and various states in the USA have called a moratorium on it’ .
Breast Cancer UK has concerns about the potentially adverse health effects of increased exposure to harmful chemicals that may occur as a result of fracking . The Public Health England report that permitted the start of the fracking process was published before a significant amount of evidence was available . Thus, it can be argued that regulation covering fracking is not adequate as it does not incorporate the existing evidence. So far, very little fracking has taken place in the UK. This results in an important lack of data and the data we do have is not fully characteristic of the whole of the UK. Consequently, the Government’s regulations are not adequately considering the potential harms of fracking that could arise in the UK. This is significant as it may allow for these dangers to arise and have irreversible negative effects upon the environment and public health.
There are currently serious inadequacies in the regulations concerning fracking that mean that risks to water are going unaddressed. The British Geological Society states that ‘Groundwater may be potentially contaminated by extraction of gas’ from all aspects of shale gas drilling. Lord Smith, Chair of the Environment Agency said, ‘Groundwater contamination is the biggest environmental risk in this activity’ . Groundwater can easily be contaminated from faults in the fracking process. Therefore, the Labour Party had proposed that fracking be banned on ‘land that collects the nation’s drinking water’ . The Government had accepted the proposal but later reneged on this and instead ruled out fracking in only part of the water protection zone. The Government’s counter-proposal even makes it possible for the Secretary of State to define what ‘protected areas’ are , thus giving the Government significant leeway in deciding where to frack and potentially disregarding areas which should be protected.
Groundwater in the UK provides a third of our drinking water, which is why we have defined Groundwater Source Protection Zones (SPZs) including ‘2000 groundwater sources such as wells, boreholes and springs’ . The SPZs are divided into three categories and currently the Environment Agency has only banned fracking in the first category. This therefore displays a potential inadequacy as fracking taking place in areas where water is used to feed aquifers for drinking water could lead to its contamination, thus having harmful effects on the population. The Chartered Institute of Water and Environmental Management believes that fracking should not take place in areas where there is a genuine risk to valuable drinking water resources . The Government’s counter-argument is that there should not be a risk of water contamination in situations of best practice, where the conditions are perfect . However, it would be very difficult for conditions of best practice to always be met. Furthermore, regulations may not be able to prevent or mitigate the disastrous effects to surface waters . Therefore, the risks of water contamination caused by fracking are serious and clear evidence that England’s fracking regulations are not adequate.
Infants and children could be at risk due to pollutants released during fracking processes . Many of the substances that are either used in, or become biproducts of, unconventional oil and gas operations, including heavy metals, benzene and endocrine disrupting chemicals, have been linked to noteworthy neurodevelopmental health problems in infants, children and young adults . Each phase in the fracking process emits significant amounts of chemicals that are likely to be harmful to both the health of the environment and humans , particularly developing children . People living near the drilling sites can therefore suffer from increased exposure to high concentrations of these pollutants. A lot of scientific studies have found that the chemicals used or emitted by hydraulic fracturing have significant negative impacts on the health of nearby communities . Despite the limited academic literature available, it can be concluded that the Government ‘is not fully recognising the inherent risks of hydraulic fracturing exposed’ by the evidence available. Government reports conclude that the health of the population is not at risk from fracking, but this stance assumes that best practice is always followed . Furthermore, the United Nations Environment Program stated in their Global Environment Alert that fracking could lead to disastrous ‘unavoidable environmental impacts’ even if all procedures are properly followed. Therefore, the current regulations on fracking are not sufficiently ensuring the health of the population and the environment are protected, and it seems that better regulations may not ever eradicate the harmful impacts. This is due to the technological and economic limitations of the treatment of emissions into the air, into groundwater and from waste . Therefore, fracking is undeniably a risky process and the Government appears to be disregarding the Precautionary Principle.
Supporters have tried to justify fracking as a bridging fuel between coal and a low-carbon future , as it is a natural gas and produces less CO2 compared to burning coal. However, natural gas is mostly methane which has strong global warming impacts. Methane is the main gas produced by fracking and is 86 times more potent than CO2 over a 20-year time frame , according to the Intergovernmental Panel on Climate Change. Therefore, there are disastrous long-term potential effects of fracking on global warming, which undermine the use of fracking as a bridging fuel and suggest it is not possible to regulate away the harm.
The RSPB is ‘calling for urgent improvements to be made to the regulatory framework for shale and gas extraction’ . Among their 10 policy recommendations, the RSPB discusses the importance of avoiding the exploitation of fossil fuels so to avoid ‘dangerous levels of climate change’. One of the UK’s key environmental commitments is to reduce greenhouse gas emissions to meet the target to not allow the global average temperature to rise more than two degrees Celsius . The RSPB believes that the current evidence suggests that fracking is not compatible with the goals of the 2008 Climate Change Act, specifically ‘for reducing UK greenhouse gas emissions by at least 80% by 2050’ . This opinion is supported by the Government’s official climate advisers who said in 2012 that fracking should be ‘plan Z’ . This demonstrates the market-based focus of the Government and the inadequacy of fracking legislation, if it is to allow these important environmental targets to not be met.
Procedural adequacy but substantive inadequacy: A comparison with Scotland
An important question to raise when discussing England’s fracking regulations is whether the Government is both substantively and procedurally doing what is required in order to ensure regulations are adequate. Procedurally, it can be argued that England is meeting requirements, but it is questionable whether the same can be said substantively.
There are certain important issues with the 2014 DECC Consultation paper . Firstly, the consultation asked three questions that were very technical. The issues were framed in a very narrow way which led to many of the responses seeming irrelevant as they did not directly address the questions. Williams has argued that the Government and other institutional actors have often ‘framed the debate on fracking in technical terms’ . This means that there is a failure to get a broader picture of fracking and to get ‘wider public frames’ which are not associated with risks . It also makes it more challenging for the public to respond appropriately, therefore limiting the effectiveness of the consultations.
Furthermore, there were only 40,647 responses, with 99% opposing the proposals. This can be contrasted with Scotland’s total of 60,535 responses. The low response rate can be explained by a general ambivalence of the British public towards fracking and environmental issues. It could also indicate that there is a consensus among many that responses will not be listened to. As many of the responses were emotive, this demonstrates their frustration. The Government did not treat concerns expressed in the DECC consultation as seriously as Scotland did with theirs. They gave the public the opportunity to address their concerns but did not let these concerns influence their proposals .
In contrast to England, Scotland has taken a ‘cautious, participative and evidence-led approach’ to unconventional oil and gas. The Scottish Government has undertaken one of the most thorough investigations of any government into hydraulic fracturing and consequently introduced a moratorium on onshore unconventional oil and gas in January 2015 . The Scottish Government commissioned several independent research reports from which the key findings included: the lack of scientific evidence on health impacts, the risk of not meeting Scotland’s climate change targets, and communities across Scotland ‘have yet to be convinced there is a strong enough case of national economic importance’ . Scotland’s decision to ban further exploration of fracking demonstrates their commitment to the Precautionary Principle. There is therefore a very different treatment of uncertainty on the topic of fracking. Whereas the Government concludes that uncertainty means insufficient evidence of harm, Scotland sees insufficient evidence as a need to act with caution. However, it could be argued that it is easier for devolved governments to adopt a different approach. This is because the public may admire a devolved government who appears independent. Nevertheless, in England it would seem the procedural requirements, such as consultation papers, are viewed merely as formality requirements and thus are not being given enough weight.
To conclude, England’s regulations on fracking are not adequately protecting the health of the environment and the population from the potential harms that are linked to all stages of the fracking process. A question some may ask is whether it is better to ban fracking completely as Scotland has, or to permit fracking to take place with appropriate regulations? As discussed, the reasons behind banning it are important and it seems that even if fracking were to be adequately regulated, there would inevitably still be many potential obdurate dangers which outweigh the benefits. An important concern is what effect Brexit, it if takes place, could have upon regulations. Given that a lot of important regulations covering fracking originate from EU law, Brexit could mean further regulatory inadequacies if these measures are taken away. Nevertheless, there may be some hope if the Principle of non-regression is included in the Withdrawal agreements as Britain would be committing to maintaining the environmental standards already in existence. Overall however, my ‘frame’ on fracking is that it is not possible to adequately regulate a type of energy that has so many risks attached to it.
14.1.2019