What’s this consultation about?
Basically it’s to do with how much protected areas, such as National Parks, AONBs, SSSIs and other designated areas, are protected from fracking operations.
Isn’t this already in the Infrastructure Act?
The Infrastructure Act only covers underground activities, not above-ground activities. So, some of it is and some of it isn’t. For example, the secondary legislation, proposed in July, allows fracking under all protected areas and aquifers, as long as this occurs below 1,200m. The normal distance at which fracking is allowed under land not in protected areas is 1,000m.
What’s the reason for the extra 200m?
A good question. We have found no explanation why this extra 200m would make any difference, particularly as the Bowland Shale in Yorkshire and Lancashire is between 2,000 and 3,000m deep anyway. However, what the Secondary Legislation does do is define a ‘bottom’ to protected areas – so now a National Park, for example, is defined as the area of land from the surface down to 1,200m. Below that, it’s fair game, it seems.
Also, under the current legislation, it will be possible for companies to set up their well-sites just outside the protected areas and horizontally frack underneath them – which of course is the reason for the legislation in the first place.
Has this secondary legislation been passed yet?
Not yet. The so-called ‘Statutory Instrument’ that defines protected areas was debated in a Delegated Committee Meeting on 27th October, in which the legislation was passed on a vote of 10-8 (there were ten Conservative MPs on the committee …). For more on this, please check out Drill or Drop.
Before this meeting, we wrote an open letter to Kevin Hollinrake MP, asking him to speak at the meeting [he didn’t] and to oppose the legislation when it comes to the House. However, the legislation still needs to be voted on in the House of Commons, which could happen next Wednesday.
We never received a reply to our letter, by the way. Kevin did find time to speak to the Press, however, saying in the Northern Echo that he was ‘delighted by the double u-turn’.
So back to my original question. What’s this consultation about?
We’re getting to that. During the meeting about the Statutory Instrument, Amber Rudd announced that the government would bring in other measures to prevent above-ground fracking activities in these protected areas. These now include SSSIs, by the way, which the government said would be protected in January, then that they wouldn’t in July – making this a double-u turn (or is that a W-turn)?
However, there’s a catch. And a rather sneaky one at that.
The depth that fracking can take place under protected areas is set out in legislation. The details are in The Infrastructure Act 2015, which amends the Petroleum Act 1998, along with secondary legislation in the still-to-be-ratified Hydraulic Fracturing Regulations 2015.
The so-called ‘ban’ on fracking operations from the surface of protected areas will, if government plans are approved, be a condition in a drilling company’s Petroleum Exploration and Development Licence – so not enshrined in law. But this is just for new licences. For existing licences, the government will simply issue a policy statement. This, according to the proposals, will indicate that
“The Secretary of State [presumably of Energy and Climate Change] is not minded to grant consent for any programme which includes ‘associated hydraulic fracturing’, as defined in 4B(1) of the Petroleum Act 1998, from new or existing wells that have been drilled at the surface in specified protected areas”.
Call us cynical, but saying that the government are “not minded” to do something doesn’t seem quite the same as a ban. (Not that we don’t trust the government’s promises or anything …)
Anyway, it is these proposals for above-ground protection that are currently out for a Public Consultation.
Finally! So how can I respond to the consultation?
The Consultation is called Surface Development Restrictions for Hydraulic Fracturing. You can find the official 16-page document by clicking on this link, and it’s quite easy to read if you can stomach the government pro-fracking spin.
What do I have to do?
There are only three questions to answer, as shown below. We have given suggested answers for each one, but of course please feel free to say what you like in response to each one. Also, feel free to comment on how these new rules would affect any specific protected areas that you know about.
Do you agree with the proposed approach to restricting surface developments in specified protected areas ((National Parks, the Broads, Areas of Outstanding Natural Beauty (AONBs), World Heritage Sites, Source Protection Zones 1, Sites of Special Scientific Interest, Natura 2000 areas and Ramsar sites) through licence conditions? Do you agree with the scope of the restrictions to be applied in England? Please give reasons. Please specify whether your response relates to new or existing licences or both.
Here are some points you can make. Please write your response in your own words if possible (although if all you have time for is to cut’n’paste these bullets, that will still be very useful).
Scope of restrictions
What would the impact(s) be on new and existing licensees if the proposals were adopted?
Please provide evidence where possible, and specify whether your response relates to new and/or existing PEDLs.
Does existing regulation provide sufficient protection for the areas in which we are proposing to restrict surface developments? If not, what would be the additional benefit if the proposals were adopted (e.g. in terms of environment, heritage, landscape value, economic impacts)?
Please provide evidence where possible.