Nuts and bolts
The Government has long made clear its view that shale oil (and gas) has the potential to provide the UK with greater energy security, growth and jobs. Nonetheless, the method for exploiting it, hydraulic fracturing (or just "fracking"), has attracted controversy.
The Government has therefore endeavoured to balance safe and environmentally sound exploration with a practical consenting regime.
The latest part of pulling together the nuts and bolts of that consenting regime was the Department for Communities and Local Government's letter of 4 February 2016. This was sent to Mineral Planning Authorities (MPAs), responsible for determining planning applications for fracking proposals.
The letter clarifies the scope of the supporting role which MPAs need to play in the Department for Energy and Climate Change's new "hydraulic fracturing consents", which need to be obtained after the planning stage.
In this blog, we consider where that letter sits within the wider fracking regime and what, if anything, it reveals about the Government’s general attitude to making appropriate fracking happen.
Hydraulic fracturing consents
Though the provision is not yet in force, the Infrastructure Act 2015 created a particular requirement for promoters to obtain "hydraulic fracturing consents" from the Secretary of State for activities below 1000 metres. A consent may not be issued unless the Secretary of State is satisfied that a number of conditions are met (albeit with discretion as to how this is evidenced). She must also be satisfied that it is otherwise appropriate to issue consent.
Amongst other things, the conditions relate to the following:
- The mineral planning authority (MPA) having taken into account environmental impacts at the earlier planning stage
- Confirmation from the Health and Safety Executive on independent well inspections
- An environmental permit from the Environment Agency, with conditions on the monitoring of methane in groundwater and methane emissions into the air, as well as a prohibition on fracking within protected areas
- The MPA having considered the cumulative effects of other fracking operations, to ensure a holistic approach
- Whether the MPA applied a restoration condition
- The MPA's confirmation that statutory undertakers and the public were consulted at the planning stage
- There being a scheme is in place to provide financial or other benefit for the local area
In other words, "hydraulic fracturing consents" are not actually consent in the conventional sense. Rather they represent almost a political tier of oversight by Central Government, checking that the different consenting strands and public interest considerations for particular proposals have all been addressed.
DCLG's February letter
In that light, DCLG's letter of 4 February 2015 is fairly pedestrian, helping MPAs understand what it is they need to do exactly in the "hydraulic fracturing consents" process. This boils down to presenting the information they have from the planning stage to the Department for Energy and Climate Change in a simple and straightforward manner.
There is one sentence where Government makes it clear that the last thing it wants is for even the minor administrative matter of MPAs passing on relevant information turning into anything which could slow down fracking projects: "The DCLG Secretary of State anticipates that Mineral Planning Authorities will be pro-active in providing the information identified in this letter, where relevant."
This minor comment in passing echoes a vein of Government frustration ever since Lancashire County Council’s rejection in June 2015 of Cuadrilla's application to drill for shale gas at Preston New Road.
Torn between "Localism" and an urgent desire to "balance the books", as North Sea revenues fall, Government has wider concerns. These are that LPAs will progress planning applications for shale exploitation too slowly and not accord enough weight to the national need in the face of local politics. On this score, see:
- BLP's blog on Amber Rudd's September 2015 Ministerial Statement
- BLP's Lexis Nexus article on DCLG and DECC's earlier Shale Gas and Oil Policy Statement of August 2015
- A general analysis of what 2015's legal and political changes mean for fracking in December 2015's "Energy, Oil & Gas"
The 2015 Statements set out how Government wants to speed up the planning stage for fracking. A "leaked letter" to the Telegraph earlier this month even revealed what has long been known, that Government has been considering bringing fracking into the fast-track consenting regime of the Planning Act 2008, aimed at nationally significant infrastructure projects.
Of course, any MPA which might think about taking its time in passing on information needed for “hydraulic fracturing consents”, so as to slow down particular fracking proposals, is unlikely to get the chance. The planning stage elements required will in those cases most likely have been obtained directly by the Secretary of State during a call-in or appeal inquiry.
All eyes on Cuadrilla
Separately, the eyes of those for and against fracking are now on Cuadrilla’s planning appeal before the Secretary of State. The public inquiry started on 9 February 2016, and is being live streamed from Blackpool.
How long the Secretary of State takes to decide that appeal, and how long the inquiry lasts, will make it clear how much force is given to the recent string of Government efforts to balance robust decision-making with the urgency of bringing forward fracking.
 See BLP's blog for more on planning changes under the Infrastructure Act 2015.