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June 14: Fracking Update

Fracking Update June 2014Goodness, haven't people been busy with fracking! - So much going on we're struggling to keep up.

Barely a day goes by without some new development being announced.

In this issue we report: Lancashire County Council consulting on the scope of an Environmental Statement, the biggest public meeting held about Fracking yet, The parrying and sidestepping of some technical waste questions, and news of a Ministerial Fracking address in Blackpool, We also cover some recent - and very unsatisfactory - moves in Canada, and proposals to change the UK law to make fracking under other people's land easier. We also make introductory comment on the first full blown application and its associated infrastructure.

One thing we've no doubt about is the relentless increase in opposition to fracking.

As our pages have chronicled since the first meeting on Fracking in January 2011, it began with a handful of anti-fracking enthusiasts, but has now moved into the mainstream with - it is reported - support for fracking in the UK falling to 49.7% (from 58.2% in 2013) and 31% saying it should not be allowed. (University of Nottingham's ongoing survey of 3,657 people).

That's not translating into a political problem yet, but we think that's only a matter of time.

The issue has been very badly handled by Government who want to both bully, and reward, people into acceptance.

We can't see that strategy working, and we worry that what we're going to get when persuasion fails to convince people, is heavy handed, and even unacceptable bending of the existing regulations - as we have seen develop in Canada.

As the Industrial Revolution brought Lancashire dark, satanic mills, there are fears that fracking will bring the 'dark satanic drills' to Lancashire and the problem for Government is that we are better informed than our forebears in the late 1700s and early 1800s - so the British public is, we believe, moving slowly, but inexorably against fracking.

And it's not just us saying that. The former Energy Minister Lord Howell (He of the 'desolate north' comments) said so too. Writing in 'Energy Security' he said "The view coming out from Ministers is much too optimistic - and could prove extremely dangerously politically - when the reality unfolds."

That last bit is the worrying part of his comment as far as we are concerned

He added that in his view, the process to introduce fracking has been botched and Government's approach was "seriously flawed".

He's been outspoken before of course, and his 'desolate north' brought mostly ridicule on his head.

But as though seeking to prove him correct, the current energy - Minister Michael Fallon - has recently said an additional £20,000 per horizontally drilled well could be paid as compensation via local groups (in addition to the £100,000 payment for every well that is fracked and 1% of profits from gas production).

That caused banner headlines in the local press of "Don't Try to Bribe Us"

Then a House of Lords Select Committee (Economic Affairs Committee) produced a report which said fracking should be "an urgent national priority" and they fully supported the Government’s commitment to ‘go all out for shale’.

So you can see a developing dichotomy that will eventually come to a head and result in either the fall of a government or the subjugation of those who would call a halt to the process.

We think - as has happened in Canada - the latter of those is the more likely, so starting with this article, we're going to attempt to record changes in UK legislation (or its interpretation) that appear to be deployed to benefit the fracking industry. The first of these is reported at the end of this article and we're sure more will follow.

  ENVIRONMENTAL SCOPING 
We've spoken in some of our previous articles about Environmental Statements, and the scope of what they should address.

In Democracy & Localism + Fracking we criticised the extent of environmental scoping that Cuadrilla were planning for the Annas Road site.

It was difficult to tell if they were trying to get away with murder there, or whether the had chosen an inexperienced company to prepare their scoping proposals.

Whichever it was, the scoping report was truly awful.

It sought to exclude great swathes of matters that should have been taken into account.

We, along with others, made strong representations to Lancashire County Council (LCC), who pleasantly surprised us by listening to what had been said, and required a much more comprehensive environmental study.

Not only that, but they determined (quite properly in our view) that all deep drilling would require a full Environmental Impact Study. We believe this is a European requirement as well.

LCC's firmness on this matter - or perhaps Cuadrilla's surprise at how badly they had previously been advised - caused them to engage a proper company to do the necessary on their environmental work for the future sites (which have now turned out to be Roseacre and Westby). They took on 'Arup' - a large multinational consultancy with a huge reputation to maintain.

The really good bit about that, is that you get people who know what they are doing.  So you get much better work done.

But with that comes the ability to argue the 'mitigation' case much more effectively.

What's 'mitigation' about?

Well, when an environmental problem arises in something a developer (or in this case mineral exploration company) wants to do, they have to find a way around it as far as possible.

They have to 'mitigate' it.

This usually involves things like: changing the timetabling so it doesn't affect nesting birds; or building underpasses under roads for badgers or foxes or hedgehogs or whatever; or building new ponds for rare newts.

So when you get a company of Arup's standing, you also get a set of good brains working for Cuadrilla that can usually find a solution to whatever problems are likely to arise.

That's good if you're pro-fracking (or maybe even a fence-sitter) - its exactly what the European Regulations are there for.

But it's bad news if you are an anti-fracker with - say, a climate change or an anti fossil-fuel agenda, who wants to use some of the problems that will arise to try and stop the fracking process altogether - as a matter of principle.

In mid February, Cuadrilla announced the publication of their environmental Scoping Proposals for the two new sites at Roseacre and Westby.

Now, at this point, we need to make a small detour to outline the 'environmental process' that has now been set in train here.

As we said before, LCC has decided that an Environmental Statement was needed for both of these sites.

The purpose of that Environmental Statement is to 'state' what environmental problems are expected, and what Cuadrilla will do to mitigate them.

This statement is evidence for the planning application that Cuadrilla will submit to LCC.

But to produce the Environmental Statement, they first have to assess the impact of what they are proposing to do to 'the environment'

Unsurprisingly, that process is called an 'Environmental Impact Assessment', and Cuadrilla's consultants (Arup) will undertake this work and publish their results.

But to minimise the arguments that might arise after it has been completed, it's seen as sensible to agree what matters should, and should not, be considered in the Environmental Impact Assessment before you start.

This is done by using something called (again unsurprisingly) an 'Environmental Impact Statement Scoping Document.'

This (literally) sets the scope of the matters to be considered and, more importantly, not considered.

The Scoping Document is issued - or at least approved - by Lancashire County Council.

Cuadrilla have asked LCC to set the parameters of the Environmental Impact Assessment they will undertake. They ask for a "Scoping Opinion" from LCC

LCC Don't (usually) do that themselves, they ask Cuadrilla to say what they think it should say first. This means Cuadrilla have to set out what they think the scope of it should be - as a sort of 'draft' scoping document.

That's what Cuadrilla published in mid February.

Then, the 'draft' scoping document went to LCC, who consulted a variety of organisations for their views on Cuadrilla's scoping document.

Then LCC gives their opinion, and decides whether to accept what Cuadrilla have suggested, or whether to require changes to the scope.

FBC's Development Management Committee were one of the bodies consulted by LCC and they considered the matter at the end of February.

Planning Officer Mark Evans explained they were not making a decision on the fracking application, but were responding to a consultation issued by LCC.

In the agenda that was circulated to Fylde's Development Management Committee, Mr Evans' report - curiously - did not have the Cuadrilla 'draft' scoping document appended. Nor did it even have a link to show councillors where to find it.

So councillors only had Mr Evans' summary report to go on, and it turned out that got them a bit riled when they knew the Scoping Document existed and they hadn't been given a copy to look at.

Mr Evan's recommendation to the councillors was that they should respond to LCC with a "No Comment"

This was then expanded to a recommendation "That Lancashire County Council be advised that Fylde Borough Council accepts the scope of the proposed Environmental Impact Assessment and that no further information is required to that set out in the scoping report."

Opening the debate, the Chairman said he had only found the actual Scoping Report the previous night, and had spent two hours reading it During the debate he made the point that members of the DMC should have had a copy of the full Cuadrilla report well before the meeting, so they could see the detail for themselves.

We absolutely agree, and cannot fathom why their Planning Officer would not have provided all the information instead of his own interpretation of it.

Opening the debate, Yorkshire Terrier Cllr Julie Brickles sank her teeth into Mr Evans. She said she had been inundated by residents complaints, and she could not find the part of his report they were complaining about. It was only later that she found that her electorate had full copies of the Scoping Report and she did not know of its existence until a day or so before the meeting. She was angry that members had not been provided with a copy, and made her views known.

Then Queen Elizabeth Oades spoke. She thought Fylde should have consulted with Parish Councils who had even greater local knowledge which could have helped Fylde councillors coming to a view.

She said it was, in essence, Cuadrilla's report, and they had set the parameters for their consultants to work to. She wanted that work extended in three or four areas

  • Land use, agriculture and soil was proposed to be assessed for the site of the drilling pad only, and she thought that should be extended to the extent of the drilling radius, not just the wellpad.
  • Subsidence. The report sought to exclude subsidence as a subject altogether. This had surprised her and she asked for subsidence to be included as an impact to be assessed.
  • Community and Socio-economic impact. She said this was restricted to the immediate environs of the wellpad and it should be wider because there was a potential impact on the perception of the wider Fylde, especially in terms of tourism.

Cllr Linda Nulty said she was concerned about the exclusion of electromagnetic interference as a topic - especially with HMS Inskip the land-based military communications site just across the road from Roseacre. She also supported Cllr Mrs Oades on the subsidence issue, especially with what some people believe may be stored underground at Inskip.

At this point Mr Evans noted that the electromagnetic issue would be discussed directly between Cuadrilla and HMS Inskip. We thought he seemed a bit taken aback that elected members were coming up with issues to be addressed when he had recommended that all was well and no changes were needed.

Cllr Heather Speak said her head was still spinning because she only lived 500m from the site. She was concerned about the duty of care to local residents and said "They don't think subsidence should be included. I totally disagree"

It seemed to us that Cllr Mrs Oades appeared to think Mr Evans was trying to sidestep the issues she had raised and she said quite forcefully "I want my comments made in our recommendation. We were given the opportunity to feed into Cuadrilla's scoping documents and we should do so"

Cllr Alan Clayton wanted to know whether Cllr Threlfall's working group had been consulted by Mr Evanms and if not, why?

The Chairman (Cllr Ben Aitken) said "To do this properly we should have read the Scoping Report"

Cllr Duffy backed Cllr Oades on the issue of subsidence, Cllr Redciffe did the same, and Cllr Fiddler also supported her, following which Mr Evans agreed to include the comments made by Cllr Oades in the response to LCC.

It said "That Lancashire County Council be advised that Fylde Borough Council notes the content of the proposed Scoping Opinion and recommends that the Scoping Opinion is amended to include the matters listed in the bullet points below to ensure that these matters are addressed in the Environmental Impact Assessment:

  • The potential impact of the proposed development on agriculture in the wider area, in particular the potential impact on the agricultural land above the area of the proposed horizontal drilling.
  • The potential impacts of subsidence.
  • The wider socio-economic impacts of the proposed development, in particular the potential impact on tourism in the wider Fylde area.

The Committee also requested that LCC be asked to consult with the Parish and Town Councils potentially affected by the development and take account of their views if they have not already done so."

When LCC published their Scoping Opinion, we thought quite a lot of what Fylde's councillors wanted to be included HAD been included, which suggests to us Mr Evans does not always have all the answers.

LCC didn't go as far as FBC wanted them to, but at least they had taken note.

One thing Fylde asked for that was not included so far as we could see, was the impact on Tourism.

We think this is a mistake on LCC's part.

It's right to say that two wellpads don't make an oilfield any more than one swallow makes a summer. But there's a danger this will be overlooked if - as we understand is expected - that the exploration permission either includes a permission to convert exploration to production, or when an application to convert exploration to production is made.

It's not so much the direct impact, but, like the Bathing Waters Issue, it's about the perception that people have of the area. After all, you don't get that many tourists wanting to visit, say, Ellsmere Port.

So, on scoping we'd give LCC 7 out of 10 (which is a better score than we thought we might be giving them).

But only time will show whether it is enough.

 THE BIG FRACKING MEETING 
Over the years, Defend Lytham has gained a fearsome reputation for their ability to influence things.

From the time of 'Lytham Quays' they became a force to be reckoned with.

We went to their inaugural public meeting in the YMCA sports hall at Lytham. Alyson Jack (who headed the campaign at that time) asked the meeting for funding support to campaign against the 'Lytham Quays' plans, and a bucket went round the 300 or so people who were there.

Legend has it that, by then end of that week, they had received £24,000 (four cheques of £5,000 each and £4,000 collected in the bucket on the night).

So we were interested to hear that Defend Lytham had taken an interest in fracking and, as we heralded at the end of our February Fracking update report, they were planning to host a public meeting.

It was always going to be an important meeting.

DL's always are.

We had this view re-inforced with two half-page adverts in the local paper and sponsorship from a renewable energy company.

The meeting was at the Woodlands Suite, Ribby Hall, and came complete with a bar and professional security on the door.

DL do a proper job.

They did a good job on the content too.

We were not able to attend ourselves, but our correspondents tell us there were about 350 people who did. We understand Frack Free Freckleton, who, despite Cllr Fiddler's dismissal of them, now have a large efficient team, and they helped Defend Lytham organise the event, and Residents Action on Fylde Fracking had distribute flyers and so on.

The format of the meeting was essentially a short presentation from Mike Hill who then went into a long Question and Answer session with those attending.

The event was introduced by DL's Janet Lees who did the notices and welcome. She was pleased to welcome parish councillors who were present together with some borough councillors. She then asked people to shout out if they were from: and launched into a list of Freckleton, Clifton, Lytham St. Annes, Kirkham Weeton Inskip, Singleton, G Eccleston, Elswick, Thistleton Roseacre Treales and Wharles - only to have to extend this list later in the meeting as more communities wanted to be recognised as being present at the meeting.

She said the programme for the evening would be a showing of a short BBC North Inside Out Programme , broadcast in Yorkshire last month, followed by Mike Hill followed by a short break, then the Q and A session.

The evening was not intended to be a debate but rather an opportunity for people to ask questions and learn more about the risks involved in fracking for shale gas. She hoped people would respect the views and opinions others may hold.

Mike Hill then spoke. He explained that the new 'Office of Unconventional Gas' (which he had helped to establish) had recently told him they would, in future only relate via official channels - such as councils, and its staff would not be able to attend meetings with the public. So he thought it was time that ordinary members of the public - not just stakeholders - had the chance to hear what was going on.

Although he gave an explanation of what was likely to happen, the thrust of Mike Hill's presentation was the continuing lack of proper regulation by Government. He said he had more or less given up on the UK Government introducing proper regulation of the industry, so he was now working as an expert adviser with the EU Commission to produce the best available techniques, because the UK Government has said it will implement and will ensure that the industry does follow the best available techniques.

In the many questions that were asked, people mostly wanted to know about what the effect might be on them and what to expect when fracking begins.

In conclusion, his comments were as we have heard him say before. He thinks it could be pretty bad for the local areas in which it is practiced, but good for the nation, and that's the balance we have to decide, whether that is a price worth paying.

We understand one of the points that came out of the event - something perhaps not previously identified as a big issue - was the likely effect of both fracking itself, and the industrialisation it could bring to (previously) agricultural land, and it's impact on farming and food production.

We hear moves to explore the extent of concerns within Fylde's farmers and the food supply chain are under way.

We would have liked to have been at this milestone meeting organised by Defend Lytham. For importance, it probably ranked alongside the meeting held by Mark Menzies which all the (then) regulatory bodies attended.

 WASTE MATTERS 

Counterbalance is fortunate to have amongst its readership a number of experts if their own fields who keep us up to speed with matters that concern them. We have more than one on Fracking, but one in particular who has an interest in fracking waste and its disposal.

He had spotted a statement in a Parliamentary committee report, a sentence that said "Tony Marsland of the Environment Agency told us that the wastewater from Cuadrilla’s operations near Blackpool would be “going to a specialist waste treatment plant in East Yorkshire—a specialist water and gas plant—for specific treatment and disposal”.

Asked whether the Environment Agency was confident that current waste treatment plants were capable of detecting and dealing with the chemicals and contaminants found in flowback water, he added that it “is up to the waste treatment facility to determine whether it has the capacity and can treat that particular waste stream […] they have to make sure they can meet their own
[obligations under their] permits before they can discharge [it]”

This transcription concerned our reader (and no doubt everyone will be able to see why). He told us that at time of the committee investigation the Environment Agency had said the waste would go to Yorkshire, then they said it was going to Manchester, and now it is unclear.

He wondered to us whether anyone really had a clue what to do with the waste.

What was perhaps more worrying though, is that that Committee statement confirms what many are saying, this is a self-regulating industry.

The EA just trusts to hope, rather than monitoring whether any regulations are being complied with itself .

Our correspondent was so concerned he made a Freedom of Information request to the Environment Agency on the matter

In response to his question whether the EA tested any of the drilling muds in Lancashire, the answer was "No"

In response to his question as to whether the EA held any information about the testing of drilling muds from Lancashire sites - that answer was also
"No."

In response to his question as to whether other companies did any testing from any Cuadrilla Lancashire site, the EA's response was that "Under the ‘duty of care’ for waste transfer, it is the duty of the producer to correctly describe their waste, as such in many cases the waste is tested. Cuadrilla are the producers of the waste and so may hold test information. An enquiry would need to be made to Cuadrilla to request this information."

The EA's answer added that "As part of waste acceptance and duty of care at Waste recycling/disposal sites, testing can be carried out to confirm that the waste they are accepting is correctly described and is compliant with their Environmental Permit. The waste site would hold that information on testing."

Doesn't exactly inspire confidence, does it?

 MINISTER AT BLACKPOOL 
There's not much will bring a Minister, let alone a Conservative minister, to Blackpool these days, but we had the treat of seeing the Rt Hon Michael Fallon MP at (what used to be) our brash and bright and breezy neighbour up the road.

He's well connected with business and the city, an ardent supporter of privatisations, and represents Sevenoaks in Kent at the present time.

He came to Blackpool because he is both the Minister of State for Business and the Minister of State for Energy, and there is a big splodge of shale rock to be exploited under the Fylde.

Astute readers will have worked out where this is going.

We think his aim was to try and encourage the view that when Fylde is industrialised, there will be lots of potential for small local companies to form a supply chain (Same theory as the 'small fleas and little fleas' couplet). So he was promoting the idea that local companies ought to get behind and support fracking because it would be good for their businesses. And it would help counteract all the negative stuff coming from residents.

We wonder if he might be thinking about the success enjoyed by a place called 'Carrizo Springs' in Texas which, just a few years ago was a sleepy town a bit bigger than Warton. People there made their living from the land. They farmed, and worked cattle ranches and leased their property to hunters to make ends meet. But now, an oil and gas boom is transforming the economy of south Texas, and it's turned Carrizo Springs into a busy city of at least 40,000 people, four times the size it was before the frackers moved in.

Tapping a vast formation called the 'Eagle Ford' shale, production is booming. Unemployment had dropped from 12% to 4% right across their county in the last five years. All the food outlets are calling for staff, and there are adverts a-plenty for oil and gas industry workers.

But the boom has been bought at a price. It appears the local sheriff has had to double his workforce and hire 15 deputies - and he complains that Mexican drug cartels now active in the area.

Furthermore, in a tale we find reminiscent of the old 'wild west', he reports that crime rates are significantly increased, and women can be found frequenting car parks selling perfume which, (apparently), is a pretext for prostitution. There's also a new strip club.

So in the dash for growth you might have to avert your gaze a bit to take advantage of the benefits.

As Minister for both business and energy, Mr Fallon wants to focus on the supply-chain side of things and no doubt he hoped to evangelise (or should that be radicalise?) local businesses into expressing support for fracking to help counter the negative stuff that's in the paper every other day.

He chose the Winter Gardens as his venue for the Conference.

We note that's quite close to Topping Street / Cookson Street, (and not that far from Central Drive). So we can envisage at least one profession that might well be looking forward to a fracking boom with eager anticipation.

It could also help to fill some of the £10 a night small hotels that are struggling to make ends meet.

So maybe fracking is just what Blackpool needs.

 MOVES IN CANADA 
In what we think was the most telling story about fracking that we had heard, a lady called Jessica Ernst - who is fired by a powerful combination of anger and fear - has taken on the National Canadian Energy Company, and the Albertan 'Environment Agency' and is, effectively, she is suing the Government.

Her 33 million dollar lawsuit effectively puts on trial the practice and regulation of hydraulic fracturing.

It also alleges that the Alberta Energy Resources Conservation Board (ERCB), the province’s energy regulator, breached her Charter Rights and failed to “exercise a reasonable standard of care, skill and diligence in taking reasonable and adequate steps to protect her well water from foreseeable contamination caused by drilling for shallow methane gas.”

It took until December 2012, (after about 171,000 energy wells were already fractured in Alberta), for the Canadian regulator to release draft regulations for fracking.

Then, in a court document filed on 5 December 2012, Alberta Energy Resources Conservation Board argued that it was exempt from liability for its actions in the Ernst case, and that it owes no “duty of care” to landowners impacted by oil and gas development.

In February 2013, after preliminary arguments had been made, the Government promoted the Judge who had been hearing the case (Justice Barbara L. Veldhuis) to the Court of Appeal of Alberta. She was therefore no longer able to hear Jessica Ernst's case, and Chief Justice Neil Wittmann took over case management.

We reported her story - Jessica Ernst v Canada - which she related to a Fylde audience in March 2013.

Rosebud RiverReaders might remember that our take on it was that it was clear her home and land (on the Rosebud River, in Rosebud, Alberta), had indeed been poisoned by the activity of the fracking companies, but the powers that be thought that was a price worth paying for the benefits to the wider Canadian nation.

We can see both sides of that argument, but - as far as we could establish - no-one had been to say sorry, but we need your land for this purpose, so we'd like you to choose somewhere else in the country and we will meet the costs of replicating your existing homestead and land there and compensate you for the disturbance.

That would have been bad enough, and you might still have expected a legal argument if the person wanted to stay put, but to do what they have done without offering generous terms of compensation is, in our opinion, simply awful.

But worse than that, we heard allegations of all sorts of underhanded action and chicanery to deflect her from the lawsuit she was engaged on. Much of that was pretty awful too.

The feature that most disturbed us was that the Canadian Government itself had bent and twisted laws to suit its own purpose, and where it could not do that, it had had introduced new laws to prevent her case from proceeding or from having effect.

We found this an absolutely shocking approach from what we had previously considered to be a reasonable and well balanced, civilised country.

We said at the time, "our Government has clearly set its mind of having shale gas (or more perhaps the tax revenues from it) and the stage is increasingly looking set for a UK re-run of what Jessica has experienced in Canada."

We think that's now starting to happen here, so we had a look at what had been going on in Canada since our report  in March 2013.

In October 2013 the newly appointed Chief Justice rejected Alberta government’s attack on Rosebud water contamination case – but he dismissed the case against Alberta’s key energy regulator, the ERCB.

Key parts of the judgment included:

  • The court rejected the Government of Alberta’s attempt to attack portions of the lawsuit, thereby paving the way for the claim against the Government of Alberta to proceed.
  • Justice Wittmann agreed there were valid claims asserted against the Energy Resources Conservation Board (ERCB) for breaching Ms. Ernst’s fundamental and constitutional right to freedom of expression. The court also found “the ERCB cannot rely on its argument on the Weibo eco-terrorism claim, in the total absence of evidence. There is none.”
  • However, the court found that the Alberta government had granted complete immunity to the ERCB for all legal claims, including for breaches of constitutional rights.
  • Chief Justice Wittmann therefore ruled the ERCB does not owe any legally enforceable duties to protect individual landowners from the harmful effects of fracking, after the ERCB argued in court it had total immunity for “not only negligence, but gross negligence, bad faith and even deliberate acts,” and therefore Albertans simply could not sue the ERCB, no matter how badly they were harmed by the ERCB’s acts. Ms. Ernst was ordered to pay the ERCB’s costs.

Ms. Ernst has instructed her legal counsel to appeal the decision to dismiss the lawsuit against the ERCB.

Murray Klippenstein, lead legal counsel for Ms. Ernst said "I think Albertans will be disturbed to learn that their energy regulator has total and blanket immunity, even in cases where the regulator has breached the fundamental and constitutional free speech rights of a landowner,”

The Co-counsel for Ms. Ernst said “It is very worrying that citizens are unable to hold the energy regulator accountable for failing to protect citizens from the harmful impacts of fracking, if the energy regulator won’t protect citizens, who will?”

Then, on 30th January 2014: the Alberta government filed an application to strike out the Ernst case against the Crown.

In March, Jessica's legal team responded to the Alberta Government’s application to strike out her case, saying the approach taken by Alberta Environment was an abuse of process; the present Application should be dismissed, and further, Alberta Environment should be sanctioned with an award of substantial indemnity costs.

At the hearing, Crown counsel said that Alberta landowner Jessica Ernst’s case could inspire ‘millions or billions of dollars worth of damages’ in subsequent lawsuits against the province.

On 15th April, the Alberta Minister of Justice and Solicitor General intervened in the Ernst appeal of ERCB Charter violation, saying that Jessica Ernst should not be entitled to raise the constitutional validity of legislation for the first time in an appeal.

What we think we see here is a process that has set out to prevent the case being heard at all.

The arguments about whether the case can be heard are proceeding at the present time with - so far as we can establish - the most recent court hearing having been held on 8th May.

Our readers will no doubt form their own view, but if, as seems likely from the early signs, the UK Government takes the same line as is being taken in Canada, it bodes badly for us all.

 UK GOVERNMENT BILL TO GO UNDERGROUND 
In our February 2014 - Fracking Update, (under the heading "Forgive them their Trespasses") we touched on a proposal by Government to make it easier for fracking companies to drill under people's land -and potentially under their houses.

The settled legal position used to be that if you owned a piece of land you also owned everything above and beneath it, from heaven to hell.

But, as we said in the earlier article, that view was changing, and, since 1900 it has been tested and may be shifting. There's more detail on our earlier article for those that want it including a couple of people / organisations who were opposing the change.

Then a couple of weeks ago, the Government said it was considering changing the law to make it easier to drill under other people's land and houses.

At present there is no absolute right to prevent someone drilling under your land. If you and the would-be driller cannot agree terms, then it is possible for the driller to go to court to have the matter settled.

But  the Government said it would have a look at it.

It has, and we expect a change to be announced in the Queen's Speech on Wednesday this week as part of a new bill which will change trespass laws to allow shale gas exploration firms to drill beneath private property without needing the owners' permission.

We've seen this variously called the "Infrastructure Bill", the "Infrastructure and Competitiveness Bill", and more recently the "Infrastructure and Shale Gas Bill" and the latest opinion suggests it will bring together separate proposals on fracking, roads and planning, making it easier, for example, for fracking companies to drill to find shale gas, without landowner permission, without breaking trespassing laws, and in return for only modest compensation.

It's not on the Government website in the list of Draft Bills, so we can't bring you much more at this stage.

But if it is what we think, it will likely be the first clear-cut alteration to an existing UK law to make fracking easier, and Government will have embarked on a slippery slope that will further damage its credibility with the British public.

Government is presently consulting on the matter and has an online consultation running.

It wants to know if you think the Government should legislate to provide underground access to gas, oil and geothermal developers below 300 meters, and if not whether you can offer an alternative solution.

We visited the website and let them know we thought the present legislation provided the proper balance between the rights of a landowner and the desires of another, and we thought that a court was the right place to hear the arguments for and against, and to determine each application for access on its merits.

Anyone may give their views

 CUADRILLA SUBMITS ITS FIRST APPLICATIONS 
Thursday's 'Express' had the news that everyone was expecting. Cuadrilla's first Public Notices of applications for planning permission.

The first stage will be at Plumpton Hall Farm

Cuadrilla issued two notices, one is for two seismic arrays with 80 buried monitoring devices and 10 surface monitoring stations. It also seeks permission to drill three boreholes to monitor groundwater and ground gas.

The second is for the construction *and operation* of a site for drilling up to four exploratory wells, hydraulic fracturing those wells, testing the wells for hydrocarbons and abandonment of the wells and subsequent restoration.

The applications also indicate the intention to seek permission for associated access roads, security fencing, lighting and so on, including the construction of a pipeline and its connection to the national gas grid network.

Interestingly - and we don't as yet exactly understand why - an opportunity to make representations seems to be restricted to people who are owners or tenants of the land, and such representations must be made to LCC between 12 May and 12 June.

But there is also a statement that an opportunity *will* exist to make representations after the application is validated, and this will be notified by LCC. This sounds as though it will be the public consultation period

We'll bring you more as this chapter unfolds

 ~~~~~~~~ DAVE'll FIX IT ~~~~~~~~

In his enthusiasm to support fracking - and thus support Mammon, rather than God (see Matthew VI, 24), David Cameron took the first small steps on a slippery slope. He began with saying how important he thinks fracking is, but it has now reached the stage where he is considering the first change in UK law to make it easier for frackers to operate. We expect there to be more of these, so counterbalance intends to record and reproduce each of the steps he has taken when we publish a fracking article in future.
April 2014
Office of Unconventional Gas and Oil announce they will no longer be available to provide representatives to attend public meetings, and will only be attending meetings with official bodies such as Local Councils.
November 2013
The Environment Agency and the Health and Safety Executive issue a joint statement on how they will work together to regulate 'unconventional oil and gas developments' In particular, the statement addresses joint working under the Environmental Permitting Regulations issued by the EA which, in future, the HSE will also be party to.
July 2013
The Government's 'Planning practice guidance for onshore oil and gas' sets many parameters and constraints on what the planning authority (LCC in our case) may (or more particularly may not) take into account when considering planning applications. Para 29 says "In doing so the focus of the planning system should be on whether the development itself is an acceptable use of the land, and the impacts of those uses, rather than any control processes, health and safety issues or emissions themselves where these are subject to approval under other regimes. Minerals planning authorities should assume that these non-planning regimes will operate effectively."
December 2012
In oral evidence to the Energy and Climate Change Committee considering the Impact of Shale Gas on Energy Markets on 11 December 2012,  Sir Robert Smith asked: "I suppose that is the problem, that it all interconnects, but on the specifics of shale gas what do you think the role of this body of office for unconventional gas and oil will be? Will it be a poacher or a gamekeeper?" Professor Anderson replied : "Disturbingly it is both, and that is the concern. It is the fox looking after the chickens. It does seem an odd thing to set up something that will promote and regulate."  In its dash for shale, Government produced a cheerleader, not a proper independent regulator.
March 2012
Government's new National Planning Policy Framework, paragraph 66 of which says "Mineral extraction is essential to local and national economies. As stated in paragraph 144 of the National Planning Policy Framework, minerals planning authorities should give great weight to the benefits of minerals extraction, including to the economy, when determining planning applications."


Dated:     2 June 2014


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