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The Law on Fracking: Mistaking coverage for adequacy – Elen Stokes

25 November 2013

This blog entry has been written to promote a public debate on fracking and shale gas, organised by the Rational Parliament, on 26 November in London. The Rational Parliament is gearing up for the session by bringing you opinions from people on both sides of the argument. Today, Elen Stokes of Cardiff Law School says that existing legislation isn’t ready to handle the challenges fracking poses. Inspired? Book your tickets for the event.  A version of this comment piece also appears on the Rationalist Association website.

Does hydraulic fracturing (‘fracking’) for shale gas require new law?  Policymakers usually answer with a resounding ‘no’.  They say fracking is already covered by existing legislation.  My view is that, while we may not need any radical overhaul of the law as it stands, or indeed a new fracking-specific Act of Parliament, the current legal approach is still deeply unsatisfactory.

There are good reasons for being more circumspect about findings that existing legislation ‘covers’ fracking operations.  While it is correct to say that fracking falls within the remit of many generic legal frameworks (in areas of health and environmental protection, for example), it is a step too far to say that these frameworks are sufficiently well-equipped to handle the serious challenges that fracking poses.  Unfortunately, a number of official reports and policy documents confuse or conflate legislative coverage with legislative adequacy.  The two issues are related but very different: the fact that legislation covers fracking provides no guarantee that it is an adequate means of dealing with fracking.

The trouble is that, notwithstanding the breadth of coverage, fracking exposes a number of regulatory gaps.  This is an inevitable feature of technological progress; new applications of technology typically develop at a faster pace than law can adapt.  The important question is how those gaps are investigated and closed.  So far, policy debates on fracking have paid little attention to questions of law except where they confirm that there is already legislative coverage.

Yet, there will be circumstances in which existing legislation does not work as well as it should when applied to fracking.  A report commissioned by the European Parliament found that, despite the multiple pieces of legislation that cover fracking, there are major gaps in the regulatory framework.  Importantly, many of these gaps arise because of continued uncertainties surrounding the health/environmental effects of the fracking process – precisely one of the sources of greatest concern for fracking opponents worldwide.  Legislative obligations to assess potential risks can be more difficult to discharge when appropriate test methods have yet to be developed, or when the data is unavailable or heavily contested.

Other gaps arise because there is uncertainty as to how legislative requirements – which were designed with more ‘conventional’ exploration and extraction projects in mind – are to be interpreted and applied to fracking.  Recently, there have been concerns that regulatory authorities (such as the Environment Agency, and its counterparts in the devolved administrations) have only limited resources to monitor compliance with legislative obligations.  Much rests on whether and to what extent these obligations are properly implemented by operators of fracking wells.  As with any regulated activity, we can expect the usual mix of ‘star performers’ as well as ‘bad apples’.

There are also potential loopholes in existing legislative safeguards, which may bring fracking beyond the scope of certain legal provisions.  For example, under current rules, only those natural gas projects that extract more than 500,000 cubic metres of gas per day require an Environmental Impact Assessment (EIA) before they can proceed.  It is unlikely that an EIA would be required for exploratory fracking operations, creating concerns that the environmental consequences of initial drilling exercises will go under the radar.

A common counter-argument to suggestions that existing legislation requires closer scrutiny is that fracking is not even a new technique.  It is often pointed out, for instance, that fracking has been used since the 1970s in the UK (e.g. in North Sea oil and gas fields) and is therefore ‘not new’.  This is deeply misleading, however.  New techniques have since evolved, enabling more intensive fracking and deeper, horizontal drilling that uses higher volumes of fracking fluids.  Additionally, the policy context has moved on considerably since those early days.  Considered against the backdrop of climate change, CO2 reduction targets and renewable energy commitments, the application of fracking to shale gas does raise new questions about the adequacy of current legal safeguards.  The political context and intended commercial scale of recently proposed fracking operations present us with new possibilities and new choices.  This is why existing laws must be exposed to fresh analysis.

Disappointingly, policymakers continue to resort to the breadth of legislative coverage as the best (or the only) indicator of an appropriate legal response.  The possibility that there are regulatory gaps is one reason for demanding a more critical re-examination of claims that existing legal arrangements are fit for purpose.  An arguably more compelling reason for resisting stale arguments of legislative coverage is that they distract from some of the most pressing questions raised by fracking, such as its environmental justice and human rights implications, and its consequences in terms of public participation in decision processes.

The point here is that the policy preoccupation with legislative coverage is politically convenient but analytically restrictive.   The more we are told that “exiting law covers fracking”, the less inclined we may be to call on legislators and policymakers to demonstrate that fact.  Moreover, findings based only on legislative coverage divert attention away from the important discussions to be had about the merits and fuller implications of fracking.  The claim that there is already comprehensive law injects a powerful momentum towards exploration and full-scale development, making it more difficult to mobilise arguments that run in different directions.  Legality does not, however, necessarily equate with acceptability.

It has become abundantly clear from recent events that fracking is a complex and highly charged issue.  We ought not to be looking for simple legal solutions, however attractive they sound.  One thing is clear: fracking will never go completely unregulated.  There are plenty of existing legislative frameworks broad enough to cover this latest development in gas extraction.  However, an analysis that looks only to breadth of legislative provision risks bypassing more fundamental questions about what fracking means for our personal and collective futures.  This makes initiatives such as the Rational Parliament so valuable in promoting open and inclusive deliberation, unconstrained by existing policy assumptions.

Elen is a Senior Lecturer at Cardiff Law School, and a member of the Global Network for the Study of Human Rights and the Environment.  She is currently working with colleagues from the GNHRE on the need for a Human Rights Impact Assessment of unconventional gas production.