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01/11/2013

Frack UK - small earthquake in Strasbourg

Words:

Mid-October newspapers were full of energy. Sorry, words about energy. Or rather words about politics about energy.

The Daily Telegraph, when not reporting “senior ministers” distancing  themselves from poor presentation on HS2 ahead of the Supreme Court hearing, was full of bluster about wind turbines. This followed earlier headlines about the EU having put a stick in the spokes of the fracking bandwagon.
 
So what has really happened in Strasbourg?  The answer, from a fracking perspective, is rather less than happened last July.  Even if not as significant as the anti-fracking lobby claims, it is still very significant.
 

EIA compromise 

 
On 9 October, MEPs voted on proposals to amend the 1985 EIA Directive, prompting EU Environment Commissioner Janez Potocnick to comment: “This paves the way for much-needed changes that will modernise the current Directive…improving its effectiveness and streamlining administrative processes.”
 
Even though a range of modifications to the EIA Directive are closer to becoming reality, the hot news concerned shale gas. Following a narrowly-won vote, the European Parliament backed proposals to add shale gas extraction to the list of mandatory EIA projects under Annex 1 of the EIA Directive. 
 
The decision prompted a Friends of the Earth press release heralding campaign success. Nevertheless, even disregarding the long road yet to be trodden, the vote resulted in less, not more, EIA regulation for shale gas exploration than previously proposed.
 
In July, the European Parliament Environment Committee backed a proposal to pull all  “exploration, evaluation and extraction of crude oil and/or natural gas trapped in gas-bearing strata of shale or other sedimentary rock formations” within the ambit of Annex I mandatory EIA.
 
But last week’s compromise decision was that only shale oil or gas “exploration, limited to the phase involving the application of hydraulic fracturing, and extraction of crude oil and/or natural gas” would require mandatory EIA. In principle, initial investigations involving drilling only, without hydraulic fracturing, would fall outside Annex I and still be capable of being screened out from initial EIA.  
 
To the extent that it was a step back from the July position, the decision was a victory for the fracking lobby.
 

"At the least, this would necessitate significant changes to DCLG guidance"

 

A change to guidance

 
DCLG’s July 2013 guidance states: “Whilst all applications must be assessed case-by-case, it is unlikely that an Environmental Impact Assessment will be required for exploratory drilling operations which do not involve hydraulic fracturing unless the well pad is located in a site which is unusually sensitive to limited disturbance occurring over the short period involved. [Mineral planning authorities] should not take account of hypothetical future activities for which consent has not yet been sought, since the further appraisal and production phases will be the subject of separate planning applications and assessments.”
 
Even so, if the amended EIA directive were adopted in its current form, it would require change in the UK. DCLG’s July 2013 guidance states that even applications for the production phase of extraction (even if involving fracking) would only fall within Schedule 2 of the UK EIA regulations if in a sensitive area or above stipulated thresholds. Still they could be screened out of EIA. 
 
If, as proposed by the EU, extraction of any quantity of oil or gas using hydraulic fracking techniques is placed within Annex I of the EIA Directive, then EIA for either exploration or extraction involving fracking would, regardless of location, become mandatory.
 
At the least, the proposals would necessitate significant changes to DCLG guidance. In practice, they would also remove any potential for authorities to grant permissions for more than a non-fracking exploration phase without an EIA. 
 
It may take months for the revised EIA Directive to grind through the Council of Ministers to become law. Then the aftershocks from fracking-induced tremors in Strasbourg look set to reach the UK. In the meantime, anti-frackers will argue more loudly for EIA wherever exploratory drilling occurs.
 
Tim Pugh is a partner at Berwin Leighton Paisner. He is a planning and environment specialist with wide experience in environmental impact assessment.

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