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09/08/2017

Legal landscape: The case against fracking

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Fracking / iStock_000022131270

How should we assess the impacts of fracking on climate change and public health? And how should the precautionary approach influence a grant of planning permission for fracking, given the state of scientific understanding? The Court of Appeal will consider these questions this month. 

The legal challenge concerns the UK’s first approval for fracking for shale gas. Granted by the secretary of state last October after a six-week inquiry, this permits Cuadrilla to operate four fracking wells for six years at Preston New Road in Fylde, Lancashire. 

Fracking, or high-volume hydraulic fracturing, entails wells drilled vertically for up to 3.5km and then horizontally for up to 2km. ‘Hydraulic fracturing’ – small explosions along horizontal wells – opens up cracks in the shale, followed by water, chemicals and small particles being forced into the cracks to release the gas. This, and some of the frack water, then flows back to the surface.

Rock fracturing from vertical wells is an established extraction process, but fracking began in the US in about 2000. Just one fracking operation has taken place here – at Preese Hall, Lancashire, in 2011 (without planning permission).

Fracking is controversial. It raises concerns about the potential for water pollution; climate change impacts from methane and carbon emissions; seismicity (the fracking of Preese Hall caused two earthquakes, which led to a moratorium on fracking); and public health impacts. 

These last arise from pollution, noise, light and dust from drilling and HGV movements. The Preston New Road fracking site is on a greenfield site, 500 metres west of the village of Little Plumpton, and 360m from the nearest residential property.

The permission is for ‘exploration works’ – construction of the well-pad, drilling of four exploration wells and ‘initial flow testing’ over 90 days (during which any gas would be flared), followed by 18-24 months of ‘extended flow testing’ (during which gas would be piped directly into the grid).

"There are likely public health impacts, but the extent of these is not yet understood, given that fracking is new and proper health studies are only just beginning"

Given that the productivity of fracking wells diminishes steeply between five to 10 years of operation, one of the points that the Court of Appeal will consider is whether the extended flow testing is not ‘exploration’, but ‘production’. 

Lancashire County Council initially refused permission in the wake of local and national opposition. Cuadrilla appealed and the resulting inquiry dealt with the usual planning issues – lack of conformity with the development plan and impact on amenity from traffic, noise and public health concerns. 

The evidence was that the current state of scientific understanding indicates there are likely public health effects, but to what extent is not yet known, as fracking is still new. 

This argument was rejected and the secretary of state found that the application complied with the development plan; that noise, traffic and health impacts could be regulated; and that the application did not fall foul of the UK’s climate change obligations.

Paragraph 120 of the Planning Practice Guidance on Minerals (PPGM) required the secretary of state only to assess the “exploration” phase and to discount any impacts from production.

Two High Court challenges followed. Preston New Road Action Group alleged that the secretary of state incorrectly interpreted the development plan and the NPPF, and that insufficient reasons were given for conclusions on landscape impact. Gayzer Frackman, whose home was damaged by the Preese Hall earthquakes, alleged a failure properly to assess the effects of emissions from the project, because of the failure properly to assess extended flow testing and because, contrary to the EIA Directive, paragraph 120 of the PPGM required the decision-maker to ignore the likely significant effects.

He also said the scientific consensus about the lack of knowledge of health impacts meant a grant of permission was irrational in light of the precautionary approach required by EU environmental law: this requires permission to be refused where it is impossible to determine the existence or extent of alleged risks. These grounds, rejected by the High Court, form the basis of the appeal to the Court of Appeal. 

Estelle Dehon is a barrister with Cornerstone Barristers specialising in environment and planning law, with a particular expertise in climate change. She will shortly represent Preston New Road Action Group at the appeal against the decision to allow fracking in Lancashire.

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