What’s in the Infrastructure Act 2015?
The Infrastructure Bill, which included measures to make it easier for oil and gas companies to drill under private land, has received royal assent. The bill began its passage in the House of Lords on 5th June last year, had 13 sessions in the House of Lords and 16 in the Commons, but many MPs complained they did not have enough time to debate or vote on the fracking sections.
Green Party MP, Caroline Lucas said, “The speed at which the Government is rushing though the Infrastructure Bill is disgraceful. Ministers are doing the dirty work of fracking companies by denying MPs the chance to properly scrutinize the changes. This makes a mockery of public concerns about fracking and the democratic process. Not only does this Bill defy public opinion, it denies people a voice. To allow fracking companies to drill under people’s homes and land without their permission is to ignore public interest in pursuit of the vested interests of a few.”
She tabled an amendment against the change to trespass law but the amendment was neither debated nor voted on in the House of Commons. 99% of people who responded to the government consultation on this measure were opposed to it.
During the third reading of the Infrastructure Bill, 237 Labour MPs did not vote on a proposed moratorium, so the vote was lost by 52 MPs in favour and 308 against. Only 20 Labour MPs voted in favour of a moratorium. Earlier indications had suggested that the rebels might have had sufficient support to push the ban through. Before the vote, GMB trade union weighed in insisting Labour MPs withdraw their support for a ban on fracking. In a letter to MPs, GMB said that support for the moratorium would be “a total abdication of any moral responsibility” for the UK’s use of and extraction of gas.
Labour introduced a new clause outlining ‘necessary conditions’ for fracking that was initially adopted by the Government, without a vote. These conditions included the need for an environmental impact assessment, independent well integrity inspections, and not allowing fracking under protected areas or within the boundary of a groundwater protection zone. However, at the House of Lords these conditions were thrown out. The Energy Minister, Baroness Verma, said the conditions were legally unviable, impractical and could not be included in the legislation. Richard Casson from Greenpeace said, “crucially, at the 11th hour, the Bill was severely weakened by the House of Lords.”
Independent Chartered Engineer Michael Hill, a fracking regulations expert, said the ‘necessary conditions’ introduced by Labour “amount to a smokescreen for unregulated fracking.” He continues, “Anyone who understands the process still sees Labour as 100% in favour of unregulated fracking. Yet the media have reported the Labour amendment as a tightening of regulation. Agreeing to these conditions most certainly represents no ‘u-turn’ for the government, as has been reported.”
The Infrastructure Act makes it a principal objective of the government to maximise the economic recovery of UK petroleum. This is to be achieved by the development, construction, deployment and use of equipment used in the petroleum industry and collaboration with, among others, holders of petroleum licences, operators and owners of petroleum infrastructure. The Secretary of State must produce strategies to meet the objective.
The Act also gives companies the right to use deep-level land to exploit petroleum or geothermal energy without needing the consent of the landowner. Property owners will not be liable for any loss or damage caused by the use of the land by these companies. However, the Act allows oil and gas companies to leave land in a different condition than they found it and to leave any infrastructure or substances in the land. There was no vote on this section in the House of Commons.
The Act requires the Secretary of State “from time to time” to ask for advice from the Committee of Climate Change on the impact of burning oil and gas extracted onshore and the impact of fugitive emissions on the UK’s carbon targets and budgets. After considering the advice, the Secretary of State must produce a report and put it before parliament.
The fracking sections of the Act do not apply to Scotland. The Act dictates that the Secretary of State must not issue a well consent unless a set of conditions are met, or he/she is satisfied that it is appropriate to issue the consent. The Act sets out documents that should be produced to satisfy the Secretary of State that conditions have been met. But it says that the absence of a document does not prevent the Secretary of State from being satisfied. It also says fracking consent “may be issued subject to any conditions which the Secretary of State thinks appropriate”.
The conditions cover the following:
1 Fracking is prohibited at depths of less than 1,000 metres, unless the Secretary of State gives consent. This gives companies the right to pollute (leaving of waste matter) 1000 metres below the surface.
2 Fracking is prohibited in protected areas. But the definition of protected areas is to be set by the Secretary of State in regulations to be put before parliament by 31st July. The government rejected a call for fracking to be banned under protected areas. This means fracking companies could drill horizontally under national parks from just outside their boundaries.
3 Fracking is to be prohibited in “protected groundwater source areas”. But again the definition is to be set by the Secretary of State in regulations not required until 31st July. The government rejected calls for fracking to be banned in Groundwater Source Protection Zones 1-3, as defined by the Environment Agency.
4 Planning authorities will have to take account of the “environmental impact” of fracking developments. There is no explicit requirement for an Environmental Impact Assessment.
5 The Health and Safety Executive will be required to visit the site of fracking wells. They must also provide a certificate that it has received a well notification under existing regulations. Labour’s amendment on this issue, which was rejected, specially required independent inspections of well integrity. The government agreed that inspections would be unannounced, but there is nothing in the Act that requires this.
6 Methane levels in groundwater will have to be monitored for 12 months before fracking can begin. The government is proposing to allow groundwater monitoring wells to be drilled without requiring planning permission.
7 The environmental permit for a fracking site will require monitoring of methane emissions. The government rejected Labour’s proposal for monitoring after a site has been decommissioned. There is no requirement for long-term monitoring of other gases.
8 The environmental regulator will have to approve substances used in fracking, although there are doubts about whether the Environmental Agency have the people-power to check that all substances used are subject to approval at any stage, let alone every day of the week.
9 Local planning authorities will be required to take into account the cumulative effects of an application and other fracking applications. This is very vague and does not tell us how decisions will be reached once the collective impacts have been considered.
10 Planning authorities must consider whether to impose a restoration condition for fracking operations.
11 Water companies must be consulted before planning permission is granted. However, there is no requirement for planning authorities to take action based on the advice given.
12 Operators will have to show they have given the public notice of fracking applications. The government rejected Labour’s call for people to be notified individually. The government also rejected an amendment, which required people to give consent, as well as being notified individually.
13 A scheme must be in place to provide “financial or other benefit for the local area”. There is no reference in this condition to this community benefit scheme being funded by the operator or the industry or who will ensure that this provision is provided and at what cost to the public purse and public health.
The Act includes this definition of fracking: hydraulic fracturing of shale or strata encased in shale in search for or extraction of petroleum. It would involve, or be expected to involve, the injection of more than 1,000 cubic metres of fluid at each stage and more than 10,000 cubic metres of fluid in total. Nick Clack of Campaign to Protect Rural England (CPRE) criticized this definition saying that the definition based on the volume of fracking fluid “could enable companies to bypass the limited legal controls that have been retained.”
The conditions that must be met for fracking to go ahead do not apply to geothermal operations. The Government said, “conventional oil and gas well stimulation techniques will also be excluded”. They apply to England and Wales only.
CPRE said the Government had “further eroded public confidence” and that the lack of controls “calls into question the Government’s commitment to so-called world class fracking regulation.”
In conclusion, this legislation barely amounts to lip service and each section of the Act concerning fracking is meaningless with regard to protecting public health.