Ever feel you're getting the run around from an inhuman bureaucracy?
(from Orson Welles' The Trial )
Written for The Ecologist, published 15th June
The Department of Energy and Climate Change – DECC – and the Environment Agency jointly issued a press notice last Sunday. On a Sunday? Obviously someone at DECC is really annoyed about recent criticism!
If you analyse the content of that statement, what we see is distorted version of the facts, designed to manipulate the reality of what is taking place today. For a some time the Government has sought to obfuscate any objective examination of its policies on unconventional gas and oil. Thus far though, we haven't seen such a collection of demonstrably erroneous claims within a single short statement.
Let's begin at the beginning –
Over the last couple of days, some newspapers have been misreporting the regulation of the potential shale reserves that could play a key role in securing Britain's future energy supplies.
Firstly, Britain has no shale gas "reserves". A 'reserve' is a known and exploitable quantity of mineral resources in the ground, with a known probability of extraction under existing market conditions.
The British Geological Survey – who have carried out studies in the north of England, The Weald and Scotland – have produced figures for the 'resource' which is in the ground. They have refused, however, to put a figure on how great a 'reserve' might actually exist. There is simply not enough evidence to make such a calculation.
Although many "hype" the figures (not my word, I'm quoting paragraph 14 of the Environmental Audit Committee's report on 'fracking'), there is little evidence to back-up those figures. Even the energy industry regulator OFGEM, which has commissioned research on the issue, believes that shale gas will never contribute more than 5% to 15% of national gas demand – and also notes the environmental concerns about the process.
That amount of gas production is far less than would be required to avoid, under the Government's future energy scenarios, our dependency on high levels of piped and liquefied gas imports.
Next I'll take two quotes from near the beginning and the end of the statement –
The government also remains committed to ensuring communities have their say on fracking applications and this is why there is no change to the process for environmental permits for fracking.
As we have said before, we have made a commitment to ensure local people have a say about fracking in their community. The Government continues to support the development of the shale industry in a safe and sustainable way.
This is demonstrably untrue.
Back in 2013 the Treasury's infrastructure white paper, Investing in Britain's Future, ordered: the Environment Agency to change its permitting processes; and the Departments for Communities and Local Government (DCLG) to change planning guidance.
The stated purpose of this was to speed up the approval of drilling sites for on-shore oil and gas production. Specifically, it stated that permits for drilling should be granted within two weeks.
The effect of the new planning policy was to restrict what issues local planning authorities were allowed consider as part of planning applications. Irrespective of what concerns the public have, local planners cannot consider the safety, the more sustainable alternatives to unconventional fossil fuels, nor the environmental and public health hazards highlighted in recent scientific research.
What the Environment Agency did to implement The Treasury's demands was even more surreal.
In August 2013 the Environment Agency consulted on draft technical guidance on 'on-shore oil and gas exploratory operations'. That process is still on-going, but it did note that the high level of public interest would almost certainly require a public consultation as part of any permit application for on-shore oil and gas.
Then, in March 2015, the Environment Agency issued new guidelines on 'determinations involving sites of high public interest'. In an almost Kafkaesque move, the Agency redefined the criteria for sites where public interest demands a public consultation as follows –
Although it might seem at first sight rather unnecessary to define what a 'site of high public interest' is, the fact that a site is generating a lot of public interest does not, for the purposes of this note, necessarily make it a 'site of high public interest'."
Currently all on-shore drilling operations require the Environment Agency (in England), Natural Resources Wales and the Scottish Environmental Protection Agency to issue permits for the emissions and waste created.
During 2011/2012 this created an absurd situation where: in Scotland, SEPA were issuing permits for exploratory drilling at Cannonbie; and yet, in England, the Environment Agency refused to ask Cuadrilla to apply for a permit for their work in Lancashire – because the Government did not want to encumber the industry with regulation.
In March 2014 DEFRA and the Welsh Government consulted on amending the Environmental Permitting Regulations (EPR) to exclude exploratory operations from the scope of the regulations. The specific amendment proposed that Schedule 1, Part 2, Section 1.2 of the regulations, which defines the restrictions on oil and gas operations –
…does not apply to activities for which a petroleum exploration and development licence has been issued by the Minister pursuant to the Petroleum Act 1998 and the capacity of crude oil storage does not exceed 200 tonnes and the duration of oil storage does not exceed 6 months
The results of that consultation, like the Environment Agency's technical guidance, have yet to be announced.
As a result of the Government's consultation, the Environment Agency announced it would carry out a consultation to take account of the expected change in the law. It was the media's response to the impending closure of this public consultation that the DECC statement sought to address.
Which brings us to the next part of the DECC statement –
The Independent's article 'Fast-track fracking without public consent' and a follow up commentary piece in The Telegraph 'Double standards will fuel suspicion on fracking' implies that fracking applications would receive less environmental scrutiny from the public. This is simply untrue."
The article in the Independent is, generally, quite straightforward. Where the dispute probably arises is DECC's definition of "fracking".
A full, 'high volume hydraulic fracturing' (HVHF) operation requires consent. The way DECC have gotten around the technical details in this case is to reclassify 'flow testing' or 'mini-frac' operations as being insignificant – which, in a way, compared to a HVHF operation they are.
However, even the flow testing process, and associated operation like acid washing, are still environmentally significant – creating a range of solid, liquid and gaseous substances which have to be dealt with, and which have the potential to pollute the local environment.
A Google search shows the digital after-image of the deleted article!
From the public's point of view – which, in a democratic society we should respect – there is no practical difference between a 'mini-frac' and and a 'full frac'. Consequently, those living near sites where mini-fracs are proposed feel cheated by the Environment Agency's regulatory processes.
The Telegraph article, referred to in the DECC statement, is even more interesting… it no longer exists!
It's a little know fact, but Google's search buffers, along with other search engines, do not always sync with the current web site content. Searching Google for a specific Telegraph article entitled Double standards will fuel suspicion on fracking produced a buffered reference to the Telegraph's site map file – with an article which has precisely that name.
The deleted Telegraph article
Search the Telegraph's web site for that article today, and it is not there.
It would appear that the Telegraph's editorial staff, browbeaten by the political muscle exerted by DECC, have chosen to remove the article.
This is not an isolated instance. As a result of pressure from the Government, and from the fracking industry's PR/lobbying machine, the UK's mainstream media do not to carry many critical articles on this topic. At the same time, Government- and industry-backed groups actively promote the technology. Consequently, many of the 'facts' we see about fracking in the media do not represent the full scope or uncertainty over what this process entails.
Which brings us to the next block of DECC's statement –
The Government has said from the start that we will consult with local communities about the impact of fracking and we will continue to work closely with the Environment Agency (EA) and other regulators to ensure all operators abide by the strict rules that govern the industry.
This is a clear misrepresentation of the Treasury's original policy, outlined in paragraph 4.34 of the infrastructure white paper, which required that –
…issue permits within 1-2 weeks, by developing standard rules for onshore oil and gas exploration activities
If the white paper accurately states the Government's intention – which we must assume is the case – then for the Environment Agency to issue permits within '1-2 weeks' there is no possibility that the public can be consulted. The Agency's Kafkaesque amendment to its public consultation guidance enacts that as policy.
Piece-by-piece, the amendments to the Agency's permitting guidance have progressively excluded the public from the permitting process in England (Scotland and Wales have yet to complete this process). This has been the demonstrable objective ever since the Government worked with Chris Smith – then chair of the Agency (now chair of the Shale Gas Task Force) – to plan these changes.
What is more, in tandem with the reforms to planning policy, it means many environment issues over which the public have concerns cannot be addressed through the regulatory process – which is arguably an infringement of the public's right to be consulted under the Aarhus Convention.
Finally, let's take the last two blocks of the DECC statement together –
The process for operators to apply for a fracking permit has not changed. Any operator wanting to undertake fracking needs to apply for an environmental permit, conduct an environmental impact assessment and apply for planning permission. This is open to full public consultation.
The current consultation by the EA, however, focuses on two techniques used for testing conventional and unconventional oil and gas wells. The consultation looks to define the standard rule permits for operators applying to drill and carry out preliminary testing of oil and gas wells and not on the permits for fracking.
All the issues raised in an environmental statement might be open to consultation – but that does not mean a local planning authority has the power to consider them. Planning guidance excludes many areas of contention from their decision-making powers.
The above statements also rely on DECC's redefinition of 'fracking' to exclude flow testing and other operations.
Contrary to the DECC statement, the regulatory process has changed; or to be precise, it has changed, but the Government has yet to pluck up the courage to announce precisely how far those changes will push debate on these issues out of the public's reach.
What the DECC statement singularly fails to encompass are the current proposals to exempt 'temporary' exploration activities from the Environment Agency's permitting controls.
As far as the public are concerned, exploration is part of the whole unconventional gas process – although the industry always content this relationship. Therefore, as far as the public are concerned, they are being shut out of the decision-making process.
Overall, the most serious factor which the DECC statement fails to address is that – today – we do not know what the operators are going to be required to do. So many consultations and amendments are outstanding that there is no certainty over: the letter of the law related to unconventional gas and oil; the requirements of environmental permitting; or the Environment Agency's treatment of permit applications.
Hanging over all of that, the results of the 14th Landward Oil and Gas Licensing Round, which potentially releases another 40% of the UK's land area for exploration, have yet to be announced over four years since that process first began.
Government ministers, and the mandarins at DECC and the Treasury, have for the last four years attempted to retroactively engineer a legal framework for the exploitation of unconventional gas and oil. Their major obstacle has been, over that time, that the evidence emerging about the impacts of those processes has made this harder to do – and has roused the public to oppose these policies.
Whether to save political face, or because they simply have no other policy which fits their ideological agenda, the Government has progressively spun ever-greater 'tangled web' to deflect criticism from this policy. Sunday's statement from DECC reached a new height in that process – since almost every paragraph can be shown to be an exaggeration, a misquoting of where the process of 'reform' currently stands, or to be demonstrably incorrect.
Despite DECC's statement being full of errors, half-truths and distortions, the greater problem we have is that few in positions of power in society are willing to challenge the Government's case. And the Government actively plays upon the media's poor coverage of the issue in order to do that.
More generally though, the greater failure here is not about 'fracking' per se. It is that our Government no longer feels the need to act upon objective evidence, and – in the words of the Ministerial Code – to give "accurate and truthful information" in defence of their policies. The DECC statement is an exemplar of these excesses.