Fracking - Should You Be Concerned?
Author: Alex Muir
Fracking is the process of drilling down into the earth and directing a high-pressure mixture of water, sand and chemicals at the rock to release the shale gas inside, allowing the gas to flow out to the head of the well. Fracking is shorthand for hydraulic fracturing and refers to how the rock is fractured apart by this high pressure mixture. The process is carried out vertically or, more commonly, by drilling horizontally to the rock layer to create new pathways or extend existing channels.
Why is it controversial?
The extensive use of fracking in the US has revolutionised the energy industry, but it has also prompted concerns.
Fracking uses huge amounts of water that must be transported to the fracking site, at significant environmental cost. In addition, potentially carcinogenic chemicals used in the process may escape and contaminate groundwater around the fracking site. The industry suggests pollution incidents are the results of bad practice, rather than an inherently risky technique.
There are also worries that the fracking process can cause small earth tremors. Two small earthquakes of 1.5 and 2.2 magnitude hit the Blackpool area in 2011 following fracking.
Where is fracking taking place?
Reserves of shale gas have been identified across swathes of the UK, particularly in the north of England. However, no fracking is taking place at the time of writing and drilling firms must apply for a fracking licence if they wish to do so in the future. These licences grant exclusive rights to explore, drill and produce within a specified area. The Department of Energy & Climate Change grants these licences on behalf of the Crown.
Is landowner consent required for proposed fracking works?
The Petroleum Act 1998 provides that mineral rights in relation to land in Great Britain are the property of the Crown, rather than the landowner. These mineral rights include any petroleum deposits and shale gas, which is most often the intended resource that fracking is used to uncover. The sub-surface strata surrounding any gas are owned by the owner of the surface land.
The case of Star Energy UK Onshore Ltd and Another v Bocardo SA [2009] EWCA Civ 579 established that a failure to obtain the consent of the relevant landowners could mean any drilling under their land is a trespass. Energy companies undertaking shale gas exploration or extraction can avoid claims of trespass by obtaining the consent of all the affected landowners. Alternatively, the energy companies can apply section 7 of the Petroleum Act 1998 to acquire the ancillary rights that are needed to exercise the rights granted by the fracking licence. This can grant the energy companies the right to enter, use and occupy land for (amongst other things) laying and maintaining pipelines.
What is being done to oppose fracking?
It has been suggested that those protesting against shale gas developments could purchase small strips of land in the area where shale gas exploration is proposed and then halt the drilling process by refusing to grant the energy company consent to drill under their land. This is sometimes known as "ransom strips".
This tactic may delay the development of a shale gas drilling site, but it is unlikely to prevent these developments in the long term as section 7 of the Petroleum Act 1998 provides for the compulsory acquisition of the necessary property rights, as stated above.
What is the Government’s position?
In June 2014, the Government announced that the Infrastructure Bill 2014-15 would contain provisions to clarify and streamline the underground access regime for shale gas and oil, making it easier for companies to drill for shale gas. This is subject to consultation currently being conducted, which is due to conclude in August 2014. The Government is also consulting on tax incentives for shale gas exploration, and has announced community financial benefits.
If you have any questions about fracking, please contact Chris Millar either by telephone on 01306 50225 or email: c.millar@downslaw.co.uk.
