Do legal safeguards relating to fracking for Shale Gas apply to Coalbed Methane in Somerset?

Safeguard: A measure taken to protect someone or something or to prevent something undesirable

The Infrastructure Act 2015 contains a list of twelve onshore hydraulic fracturing safeguards.

The list of safeguards is quite long (see below) and includes a condition that “prohibits associated hydraulic fracturing from taking place in land at a depth of less than 1000 metres”, a condition prohibiting “associated hydraulic fracturing” from taking place in groundwater protection source areas and other protected areas such as Areas of Outstanding Natural Beauty  and a condition ensuring that methane in ground water will be monitored for 12 months prior to commencing “associated hydraulic fracturing”.

The Department for Energy and Climate Change (DECC) has confirmed to FFCV that the definition of “associated hydraulic fracturing” in the Petroleum Act 1998 and the Infrastructure Act 2015 DOES NOT APPLY to Coalbed Methane (CBM).  It follows therefore than none of the legal safeguards in the Act apply to CBM either.

The government’s definition of associated hydraulic fracturing “means hydraulic fracturing of shale or strata encased in shale” and does not include coal where coalbed methane is found.  On this issue DECC have said “To confirm, this definition does not apply to CBM“.  CBM is the primary unconventional gas of interest in the Bristol-Somerset coalfield.

MP for North East Somerset, Mr Jacob Rees-Mogg, voted for the Infrastructure Act and has said in letters to concerned constituents:

J R-M: “The Government has proposed to allow developers to access the ground up to 5000 feet below private land without the risk of breaching trespassing laws

This is an obtuse way of saying that fracking will not occur in the top 5000 feet depth from the surface (although this is not actually correct as the Act says 1000m which is 3280 feet).  According to DECC this does not apply to CBM in Somerset. The Government’s Planning Portal states that CBM extraction “is likely to be achievable between 200 and 1500 metres”. There would appear to be no legal safeguard prohibiting fracturing of coal for CBM at depths as shallow as 200m either outside or inside the Mendip Area of Outstanding Natural Beauty.

J R-M: “The Government made a number of alterations to the Bill such as declaring an outright ban on fracking in National Parks and, of particular relevance to North East Somerset, Areas of Outstanding Natural Beauty

According to DECC this does not apply to CBM in Somerset. This is because the protection is contingent on the definition of associated hydraulic fracturing not the definition of protected areas such as AONBs.

J R-M: “The length of time during which companies must monitor the environment at a fracking site before work commences has also increased from a voluntary three-month period to a mandatory twelve month period

According to DECC the condition to monitor methane in groundwater for 12 months before fracturing does not apply to CBM in Somerset. This is because the protection is contingent on the definition of associated hydraulic fracturing which doesn’t apply to CBM.

J R-M: “There is a provision for compensation payments to affected communities”

According to DECC this won’t apply to CBM as the Act only applies to shale gas. Any payment would therefore be voluntary under the industry’s code.

J R-M: “I voted for the Bill as I am confident that the risks are tolerable

In relation to coalbed methane in Somerset Mr Rees-Mogg does not appear to know what law and safeguards apply or do not apply, so how can he assess the risks of coalbed methane production in his constituency?

According to the Somerset Guardian Mr Rees-Mogg has urged local residents to ignore ‘scare stories and scaremongering‘ around fracking and has ‘dismissed the concerns voiced by opponents‘. He has also said that “lack of information about the locations, size and scale of exploration works was in part to blame for the anxiety” whereas the location, size and scale of exploration work is well known because the American Coalbed Methane industry has described it in some detail – see the GeoMet report – and is the cause of much anxiety!

Resources

Feeling anxious?

Fracking safeguards that don’t apply to Coalbed Methane in the Bristol-Somerset coalfield?

The Infrastructure Act 2015 and changes to the Petroleum Act 1998 have a number of onshore hydraulic fracturing “safeguards” which only apply to Shale Gas, including:

(a) a condition which prohibits associated hydraulic fracturing from taking place in land at a depth of less than 1000 metres;

In addition to this are a set of conditions, including:

  1. The environmental impact of the development which includes the relevant well has been taken into account by the local planning authority
  2. Appropriate arrangements have been made for the independent inspection of the integrity of the relevant well
  3. The level of methane in groundwater has, or will have, been monitored in the period of 12 months before the associated hydraulic fracturing begins
  4. Appropriate arrangements have been made for the monitoring of emissions of methane into the air
  5. The associated hydraulic fracturing will not take place within protected groundwater source areas
  6. The associated hydraulic fracturing will not take place within other protected areas
  7. In considering an application for the relevant planning permission, the local planning authority has (where material) taken into account the cumulative effects of— (a) that application, and (b) other applications relating to exploitation of onshore petroleum obtainable by hydraulic fracturing
  8. The substances used, or expected to be used, in associated hydraulic fracturing— (a) are approved, or (b) are subject to approval, by the relevant environmental regulator
  9. In considering an application for the relevant planning permission, the local planning authority has considered whether to impose a restoration condition in relation to that development
  10. The relevant undertaker has been consulted before grant of the relevant planning permission
  11. The public was given notice of the application for the relevant planning permission

Plus two further conditions:

(a) that appropriate arrangements have been made for the publication of the results of the monitoring referred to in condition 4 in the table [above];

(b) that a scheme is in place to provide financial or other benefit for the local area.

What is “associated hydraulic fracturing”?

The Acts define “associated hydraulic fracturing as:

Associated hydraulic fracturing” means hydraulic fracturing of shale or strata encased in shale which —

(a) is carried out in connection with the use of the relevant well to search or bore for or get petroleum, and

(b) involves, or is expected to involve, the injection of—

(i) more than 1,000 cubic metres of fluid at each stage, or expected stage, of the hydraulic fracturing, or

(ii) more than 10,000 cubic metres of fluid in total.

NB DECC have confirmed that this definition DOES NOT APPLY to Coalbed Methane.

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