Regulation of Fracking in the U.K.

Zhao Yan 'George' Lee is an International Law Lecturer at Tunku Abdul Rahman University College in Malaysia. He is an alumnus of Cardiff University.


‘Nature is a collective idea, and though its essence exists in each individual of the species, it can never in its perfection inhabit a single object.’ Henri Fuseli[1]


Historically, the term ‘Environmental law’ was understood to mean laws curbing pollutions, which were primarily aiming to protect public health.[2] However, during the 20th century, the Ecology awakening movements[3] in Britain emancipated in the expansion of the definition of Environmental law.[4] First coined by Haeckl and Warming in 1886,[5]the ecology brainchild inspired an idea of interconnectedness between all living organisms in nature and their living environment.[6] Owing to the innovation, many started to adopt a wider perception on the scope of environmental law.

According to Prendiville, the study of ecology triggered a ‘moral extensionism’ of the ‘notion of interests or intrinsic value to non-human beings’ in environmental law.[7] The new popular legal conception of environmental law thus underwent an interdisciplinary departure from its compartmentalised form to include all laws which pose ancillary impacts to the ecology. Turgut identified the new environmental law’s conception as a tree-like structure, with laws constituting indirect impacts to the ecology at its peripheries; while reserving all traditional pollution-control regimes at its core.[8]

In this new model, the intertwined set of laws ideally converges to pursue the goal of ecological sustainability.[9] Ecological sustainability is the end result of ‘sustainable development’, an aspiration comprising ‘types of economic and social development which protect and enhance the natural environment and social equity.’[10] According to Diesendorf, the accomplishment of this aspiration harbours ‘a sound environment, a just society and a healthy economy’, known as ecological sustainability.[11]However, time has still yet to come for environment law to attain a doable balance between these three aspects. Often, while legislating, law-makers have high propensity to allow short-term economic interests to override ecological sustainability in the long run.[12]

This essay is dedicated to demonstrate environmental law’s inherent incapability to deliver ecological sustainability due to its clashes with short-term economic interests. The discussion invokes a germinating area of environmental law as a test-bed to approach this issue: The Law on Hydraulic Fracturing in England. As the introduction of regulatory regime on hydraulic fracturing is relatively recent in England, I submit that it offers our purpose an analytical model which is less compromised by political rhetoric compared to mature areas of environmental law.[13]

Part I will offer an account on the background of hydraulic fracturing in England. The core discussion begins from Part II, which analyses the failures of English planning regime to impart a balanced regard to environmental considerations. Part III will then extend the similar discussion to the English environmental regulators. Finally, Part VI proposes feasible reformative strategies to overcome the discussed challenges.


I. Hydraulic Fracturing

Hydraulic Fracturing[14] is a technique to access gas within the underground shale beds. The technique involves drilling of a borehole into the shale horizon and pumping of water at high pressures to fracture shale rocks, making gas within them extractable.[15] At exploratory stage, horizontal drilling is used to allow multi-direction explorations from a single well bore.[16]

Fracking technique is already prevalent in the United States. But in the UK, it is merely at the exploratory phase, without fully fledged commercial industry.[17] However, the government’s stance to maximise potential economic benefits of fracking was apparent. As Cameron announced:

‘A key part of our long-term economic plan to secure Britain’s future is to back businesses with better infrastructure. That’s why we are going all out for shale…’[18]

It is speculated that fracking could welcome positive economic implications in the UK, particularly in terms of job creation; and lower fuel prices for energy-intensive industries and the general energy market.[19] However, potential environmental impacts of fracking remain highly uncertain. It is salient in the USA that fracking has caused issues of groundwater contamination, air pollution and their associated risks to ecology and human health.[20] The current regulatory regime on fracking in England has been criticised to have omitted these forerunning examples in pursuit of fracking’s high economic incentives.


II. Planning Regime

The present; and the following section point to the failures of English planning regime, and the environmental permitting regime respectively, to pay sufficient regards to environmental considerations in regulating fracking activities. Environmental factors are pivotal in the concept of ecological sustainability. As Diesendorf acclaimed:

‘…nature provides human societies and economies with a complex life support system…air, water, food and a suitable climate for our survival, and the physical resources which are currently the foundation of economies…’[21]

However, the fact is clear that planning and environmental permitting regimes of England have given a more favourable regard for economical considerations of fracking, while significantly trumping environmental considerations, as will be seen below.

To begin with, the Town and Country Planning Act 1990 is the chief legislation in the English planning law. The act requires operators of any legitimate activity on lands falling under the definition of ‘development’ to obtain a Planning Permission (PP).[22] Since fracking is a variant of conventional drilling operations, it undoubtedly fits into the definition of ‘development’.[23]

The power to award PP for in England lies with the County Councils,[24] which are known as Minerals Planning Authorities (MPA) in the case of fracking.[25] The MPAs are responsible of assessing economic, social and environmental impacts of a proposed project before finalizing their decisions to grant or refuse PP to the applicant operator.[26]

Planning law requires applications for a PP to be determined according to Minerals Local Plans, which are formulated by the MPAs in accordance to respective local factors.[27] Alongside these local plans, the MPAs are signposted by generic policy documents issued by the UK government in their decision-making. Although principles in these documents are not legally binding on MPAs, they are nevertheless statutory material considerations in the performance of their duties.[28]

The following discussion focuses on the deficiencies of these policy guidance documents and the Environmental Impact Assessment mechanism in defending environmental considerations in fracking activities.

Policy Guidance - Sustainable or Economic Development?

The principle of sustainable development[29] was articulated in the 2012 National Planning Policy Framework (NPPF) as a ‘golden thread running through both plan-making and decision-making’.[30] This rhetoric forewarned planning councils to equalise their attention among environmental, economical and justice considerations in the execution of their policies.[31]

However, in 2013, the Planning Practice Guidance for Onshore Oil and Gas advocated a different position for fracking, where it was proposed that ‘great weight’ should be attached to the benefits of mineral extraction, including to the economy’.[32] It oddly referred to a paragraph in NPPF, which indicated an identical stance.[33] The phraseology of ‘great weight’ hinted government’s favouritism on the economic dimension of fracking over the others. In the legal plane, it was critiqued as ‘unduly biased’ and intending to elicit the ‘most positive spin ever’ in favour of economic benefits of fracking.[34]

Fortunately, the ‘great weight’ content was no longer chartered in the latest Online Practice Guidance (OPG). Nevertheless, the new guidance recasts exploratory fracking as a ‘pressing need’ to discover the potential presence of sufficient shale gas for ‘economically viable’ full-scale production.[35] Furthermore, the ‘great weight’ term remains intact in the current NPPF, which is applicable to a much wider range of planning policymaking apart from fracking. While it remains prone to dangerous subjectivity of the local authorities, no court could step in to rectify their interpretations, as policy documents lack binding legal force, and because the courts are resistant to interfere with policy-making activities of executive authorities.[36]

Policy Guidance - Division of Functions

In the OPG, the government made a sharp dividing line between functions of planning and non-planning authorities. The planning authorities were directed to focus on the acceptability of the use of lands, and to pay less regards to matters falling under non-planning regimes, such as health, safety and Greenhouse Gas (GHG) emissions.[37] There was a clear indication that a planning body should assume the efficiency of non-planning authorities to deal with these matters.[38]

Critics portrayed the restrictive role of planning authorities in environmental protection resembled by OPG to be another showcase of government’s preferential treatment for shale gas exploration, because MPAs are state bodies most directly involved with fracking’s regulatory landscape.[39] The controversy is further compounded when OPG ‘cherry-picked’[40] planning considerations from the NPPF but deliberately omitted climate change.[41] This signalled a contraction of scope in institutional climate change considerations, leaving them solely in the hands of environmental regulators. Notably, this is despite UK government has a legally binding GHG reduction target to attain,[42] and the United Nations’ caution of fracking’s likelihood to ‘be detrimental to efforts to curb climate change’.[43]

However, the rationale behind such binary of functions between planning and non-planning authorities has been visited by courts for several instances. [44] In one case, referring to para 122 of NPPF, the High Court declared that while GHG emissions remain a material consideration in planning law, judgments on its acceptability are to be finalised only by pollution control regulators, since this has always been the stated policy of the ‘First Secretary of State and his predecessor… for many years…[45]

It was clarified that the existence of a division in powers helps to ‘avoid unnecessary duplication and delay and to ensure that planning and regulatory processes are focused in the most appropriate areas.’[46] It is certain by commonsense that the expertise of environmental regulators could deliver a more reliable assessment on the environmental impacts of fracking than the planning authorities. Thus, to pay too high a regard to judgments of the planning authorities on environmental issues would seem unprofessional and perilous.[47]

Furthermore, to allow territories of planning and non-planning authorities to imbricate would mean to put the state in an unfair position.[48] For instance, if environmental factors become inseparable requirements in the approval of a PP, MPAs may wish to revoke a PP due to changes in local environmental circumstances. Yet, the law is clear that revocation of PP may not be done without incurring liability to compensate the operator.[49] Incidentally, such phenomenon would generate a needless burden on scarce public fund,[50] which could otherwise be utilised for more justifiable purposes.

On the flip side, the division of power, which gives the Environmental Agencies (EA) the final judgment on fracking’s environmental aspect, would facilitate vast administrative convenience, because EA could modify the existing Environmental Permits (EP) without a burden to compensate.[51] The highly elastic nature of EP regime would offer a financially stress-free ambience for timely operation of EA in catering to changes in environmental circumstances.[52] On top of that, the finality of EA’s decision on environmental matters does not in turn defeat MPAs’ duty to consider GHG emissions under the NPPF.[53]

Environmental Impact Assessment (EIA)

EIA is a procedure which necessitates environmental implications to be taken into account by public bodies before policy decisions are made.[54] At the European level, member states were instructed to ensure completion of EIA before authorising projects which are potentially harmful to the environment.[55] Successful undertaking of EIA leads to the generation of an Environmental Statement (ES),[56] which must be a report containing ‘single and accessible compilation of the relevant environmental information and the summary in non-technical language’.[57]However, since the focal point of the discussion lies with the modus operandi of EIA, I shall leave substances of the ES to readers’ own exploration.[58]

Transposing the EU EIA Directive,[59] the EIA Regulation[60] in England divides wide-ranging types of development projects into two categories. Large scale commercial projects under schedule 1 must only be granted PP by planning authorities after the operator has undertaken a satisfactory EIA;[61] whereas the necessity of EIA for schedule 2 small scale projects are determined by the planning authorities on their discretion. Planning authorities decide upon such necessity by considering the criteria set out in schedule 3.[62] It is recognised that fracking does not fall within the ambit of schedule 1 since its current stage is merely exploratory, not commercial.[63] Thus, fracking projects are to fall under schedule 2.

The screening mechanism under schedule 2 mandates local authorities to decide the necessity of EIA of a project based on three factors. EIA becomes compulsory only if a project:

i. is a recognised proposed development,

ii. exceeded the fixed thresholds, and

iii. is concluded by planning authorities to have a significant impact on the environment according to the criteria in schedule 3[64]

As of the moment, the classification of fracking in stage (i) is an uncertain issue. The notorious Cuadrilla exploratory drilling at Lancashire incident witnessed Cuadrilla’s classification of fracking as ‘deep drillings’ under schedule 2 in their planning applications.[65] This enabled Cuadrilla’s application to obviate a mandatory EIA, because in stage (ii), the threshold requirement to necessitate an EIA for ‘deep drillings’ is one-hectare area coverage, which was not exceeded by Cuadrilla’s project of 0.99 hectare coverage.[66] This was heavily criticised to be an exploitation of discretion vested in local authorities.[67] Moreover, the government has apparently, if not deliberately, overlooked the CJEU’s judgment which required all EU member states to ensure that EIA thresholds are not circumvented by ‘splitting of projects’. Although member states were instructed to take into account ‘cumulative effects’ of all projects at a local area to the environment,[68] no sign of such principle is shown in the legislation.

On this threshold issue, Broderick proposed a greener alternative, where fracking is to be classified as ‘surface industrial installations for the extraction of coal, petroleum, nature gas and ores…’ under schedule 2, which would lead to a threshold of ‘0.5 hectare’, [69] accordingly offering a higher probability of mandatory EIA on fracking operations.[70]

However, I would submit that the issues of thresholds are in fact underpinned by the reluctance of government to issue a dedicated EIA guidance on fracking, despite continual advises from the United Nations, the EU and the Royal Society of Engineering.[71] The alleged ‘gold-standard’ regulation of fracking[72] obviously does not correspond with the fact that there is no dedicated EIA guidance which prescribes an objectively justified threshold for fracking. This exposes the current regime to serious exploitations.[73]


III. Environmental Permitting Regime (EPR)


A fracking operator is most likely required to apply for Environmental Permits (EP) issued by the Environment Agency (EA) for a number of activities associated with fracking, such as mining waste management, groundwater activity and radioactive substances activity.[74] The EA is responsible to examine environmental risks of the listed activities and will only grant EP to the operator if it believes that the risks can be sufficiently mitigated.[75] I would like to emphasise on a distinct feature of the EPR, which is the opportunity for public participation in the course of its assessment.

Public Consultation

Under regulation 59 of the Environmental Permitting Regulation, EA is obliged to publish a statement of its policies to comply with its public participation duties.[76] In the published statement, the EA noted, in relation to fracking, that it is prepared to adopt a policy of ‘increased public consultation’ on EP applications at sites with ‘high degree of public interest’[77]This will be completed via several methods including extended consultation period, wider advertising and a second consultation on the draft decision.[78]

However, the EA has nevertheless appeared rather objectionable in its articulation of public consultation procedure. For instance, despite pervasive public concerns, media coverage and demonstrations, it has not classified Caudrilla’s Balcombe application to frack as ‘high public interest’.[79]

Considering this, it is perhaps helpful to analyse the types of comments which are actually taken into consideration in EA’s public consultation. It is apparent in the Technical Guidance that only ‘comments directly relevant to the permit’ are taken into account.[80] However, the term ‘relevant’ is not specifically defined, and hence it is obvious that EA heralds considerable discretion in deciding relevancy of public comments.[81] In practice, EA is often inclined to regard agency policy guidance documents, reports of EIA and government’s energy policies as relevant comments.[82] However, for general public opinions, although directly relevant comments are taken into account by EA; if it appears that government’s policy direction is at odds with them, the court had held that the government’s policy is to be accorded prevalence.[83]

Considering the high degree of discretion vested in EA and its legal duty to prioritise government’s policy directions, Caudrilla Balcombe incident could technically be clarified. However, the high premium on Westminster’s policies gives rise to another probable danger in EPR. Concerns persist as to whether EA is prepared to trump climate change considerations because of government’s policy to prioritise economic incentives of fracking.[84] Although it is salient that EA has been undeviating in taking into account public comments regarding climate change in cases such as Rathlin Energy[85] to the recent Caudrilla Bowland,[86] and several other cases, but EA does not regard public comments containing indirect climate change as relevant considerations. Indirect climate change sourced from collateral emissions of GHG after shale gas extraction activities, such as transport of these shale gases and the eventual use of shale gas as a fuel. These wider factors were regarded as beyond the scope of EP application by EA.[87] Notably, in several EP final decisions, EA had justified its decision on the irrelevancy of these GHG emissions by reiterating its strict adherence to government’s policy to maximise economic recovery from UK oil and gas.[88]

As Wood narrated:

‘Bureaucratic discretion has become an open invitation for agency heads to (politicise) decisions for their short-term interests.’[89]

The English planning and EPR regimes on fracking merits no exception. The hierarchical bureaucracy inherent in them has orchestrated their overall higher regard on short-term economic interests of fracking, over the goal of ecological sustainability in the long run.








IV. Reform


The current English environmental law on fracking demonstrates too high a premium on fracking’s economic incentives, which in turn resulted in economic considerations overpowering others in the pursuit of ecological sustainability. The present section revisits prior discussion on planning and EPR regimes and proposes practicable reforms to reintegrate them back to the quest of ecological sustainability.

In Section A, the discussion analyses the advantages of a mandatory EIA for fracking in the planning regime. In Section B, the potentials of human rights law as an innovative means to interlock the social justice and the environmental aspects of ecological sustainability will be highlighted. Such a mechanism is particularly viable to reform the public consultation in the EPR; and in generation of the more ambitious substantive environmental rights, which is capable of conveying a constitutional status to environmental protection.


A. Mandatory Environmental Impact Assessment

The current thresholds of EIA flagrantly give leeway for shale gas companies to escape from the applicability of it.[90] The lack of a dedicated EIA regulation on fracking has given rise to companies’ deliberate classification of fracking as projects which require EIA only at a high threshold in their applications-to-frack. [91] Furthermore, the evidence is clear that the government is keen to downplay the EIA’s applicability in all development projects to minimise ‘additional cost and delay to the planning system.’[92]

From an environmental perspective, the present EIA regime for fracking is in considerable jeopardy. This is because onshore fracking technology remains premature in the UK, hence its potential environmental impacts are still shrouded by vast scientific uncertainties.[93]

Proposals to tackle uncertainties associated with fracking’s EIA converge on the point that a mandatory EIA is imperative.[94]There are two principal rationales under which a mandatory EIA is regarded as a plausible means to safeguard against these unforeseeable environmental dangers.

Firstly, a mandatory EIA for fracking is a manifestation of the ‘Precautionary Principle’, a key concept in the EU Environmental Policy.[95] ‘Precautionary principle’ prohibits inaction to undertake cost-effective measures in the face of a threat of environmental damage, even if the prospect of such damage remains scientifically uncertain.[96] Fracking’s uncertainties are apparent according to the Environment Audit Committee, which stressed that:

‘There are… huge uncertainties around the impact that fracking could have on water supplies, air quality and public health.’[97]

Thus, for fracking, to adhere to precautionary principle would be to slide the scale of current regulatory control upwards, if not impose a ban on it. This could be accomplished viably through institution of a mandatory EIA, which merits wide supports from conservation charities.[98]

Secondly, as of the moment, many voluntary EIA undertaken by shale gas companies are criticised to be qualitatively unsustainable. This is because the avenues in their EIA undertakings vary according to individual companies.[99]Furthermore, voluntary EIAs are often insufficient in scope, as they are endeavoured only for ‘fracking’ itself, while mostly omitting other associated activities, such as drilling.[100] A dedicated mandatory EIA for fracking with uniform criteria would offer an objective treatment for environmental concerns, which will in turn embolden public confidence in the state.[101]


B. Human Rights Law

Human rights have been endorsed as an indispensable factor of sustainable development during the UN 2012 Conference on Sustainable Development.[102] Through recontextualisation, human rights law interlocks the social justice aspect with the environmental aspect under ecological sustainability, promoting opportunities for individuals to litigate environmental claims.[103]

Traditional human rights law does not necessarily fit into the structure of environmental law, since it is highly anthropocentric in nature.[104] However, as will be observed, ambitious dilations of environmental dimension in modern human rights law has enabled it to confer substantial impacts on the efficacy of environmental law. From an ecological perspective, the dividing border between environmental law and human right law is muddied, as principles from both realms continued to amalgamate.[105] The Stockholm Declaration pronounced that:

‘Both aspects of man’s environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights…’[106]

In England, the status of UK as a signatory to the European Convention of Human Rights (ECHR) and the Aarhus Conventionplaced English public authorities and courts under an obligation to abide by human rights principles contemplated in them.[107]Although principles in the latter have not been legislatively incorporated, its force in domestic law has been acknowledged by judicial decisions.[108]

According to Morrow, human rights law offers protection to the environment in two ways: procedurally and substantively.[109]Although the former remains less ‘ambitious’ than the latter, the former is nevertheless more instrumental as it delivers positive results in courts more frequently.[110]

The present discussion addresses these two limbs of the human rights in terms of their developments hitherto, and their prospective contributions to fracking’s regulatory regime.


Procedural Rights

The Aarhus Convention has clearly enshrined right of public participation during ‘preparations and plans relating to the environment’.[111] Although the convention has not been transposed into domestic law, Sullivan J in Greenpeace has decreed that public consultation in the environment sphere is no longer an area of privilege to the executive and that issues about it shall be decided according to the convention.[112]

With assimilation of right of public participation as a part of human rights law in England, an auxiliary layer of safeguard is added to the consultation procedure through judicial scrutiny.[113] As discussed in previous section, courts have been reluctant to encroach executive domain of policymaking.[114] The human rights law offers the courts a constitutional means for such intervention in the event of ‘clearly and radically wrong’ consultation procedures adopted.[115]

In exp Coughlan, the court has developed a five-stage test to assess potential human right violation of public consultation procedure, namely, occurrence at a formative stage, sufficiency of content for intelligent responses, adequacy of time for response, conscientious consideration and measurement against fairness.[116] Although more often than not, consultations which failed to satisfy one or more of these criteria are declared unlawful rather than quashed per se,[117] declaratory reliefs nevertheless serve as an effective deterrent for future consultations, as they represent conclusive affirmations of the law.[118]

In cases of fracking, although its public consultation aspect has not been tested in the court against human rights arguments, many Coughlan criteria, such as sufficiency of content for intelligent responses, could potentially correspond to indirect climate change considerations, which were excluded by the EA in granting EP on policy grounds, despite being an issue of profound public concerns.[119]

Notably, in Bard v Trade Secretary, an additional criterion was added to the Coughlan formula, which provides that propriety of a consultation document is to be determined by whether consultees are able to reasonably foresee that their responses are considered in issues of principle.[120]

It is highly likely that further developments of right of participation to accommodate fracking will buttress integrity of public consultation in EPR, in the sense that the public will acquire a legitimate ground to protest their dissatisfaction over, for example, the lack of regard about indirect climate change considerations, before a judicial forum.


Substantive rights

Fundamental substantive human rights enshrined in the ECHR have long been incorporated into UK domestic law through the operation of Human Rights Act 1998.[121] Increased tendency of the European Courts of Human Rights (ECtHR) in expanding horizons of these substantive rights to encapsulate environmental elements is widely known. Such expansions were founded on ECtHR’s recognition of international standards where human rights law is depicted as ‘mutually reinforcing’ with environmental law.[122] The continuation of the trend of such ‘evolutive’ innovation by the ECtHR is cordially speculated by many academic commentators.[123]

Article 8 of the ECHR which provides for ‘right to respect for family and private life’ has undergone the most wide-ranging extension with regards to environmental considerations.[124] Significantly for the context of fracking, infringement of article 8can be attributed to state’s failure to maintain a fair balance between economic interests of a polluting activity with individual enjoyment of the environment.[125] The judgment in Taskin v Turkey indicated a low threshold for such imbalance, where violations of article 8 need not necessarily entail actual harm to the individuals.[126] It would be sufficient to prove that the activity approved by the state posed an ‘unacceptable’,[127] ‘serious’ and ‘material’ risk[128] to the environment which would eventually affect the individuals.[129] It is evident that the court is prepared to uphold the claims of individuals even if a causal link between the environmental harms and the individual’s wellbeing could not be well established.[130] This is because ECtHR acknowledged the ‘precautionary principle’ as being a ‘juridical norm’ to be applied in a binding manner.[131]

In the context of fracking, expansion of article 8 could beget considerable positive impacts for claimants. Local permissions to may possibly be successfully challenged in the event if evidence suggests that local councils have failed to maintain a fair balance in considerations paid to the environment and the economy in granting planning permissions.[132] As local councils, as well as the EA, are conspicuously inclined to interpret policy documents in favour of ‘economic development’,[133] the likelihood of successful challenge on the ground of article 8 by affected residents is appreciable, should the ECtHR accepts that fracking represents a substantial risk to the environment.

Although the ECtHR has clarified that it will ascertain the environmental risks of each case by reposing trust in the domestic courts, it reserved to ‘assess the evidence in its entirety’ if decisions of domestic authorities are contradictory or inconsistent.[134]As indicated clearly in above discussions, contradictions and inconsistency are undeniably present in the planning regime and the EPR.[135]

With the continual persistence of ECtHR in broadening the bailiwick of the environmental dimension of article 8, it is of little surprise that the time comes where local residents in areas of shale gas exploratory activities be endowed upon a right to challenge decisions of the MPAs on grounds of human rights in the courts.

Presently, the prospect of human rights law in relation to fracking remains imprecise. Various human rights organisations have called upon the government to instil a moratorium on fracking until such time as a ‘full, publicly funded, industry-independent, evidence-led human rights impact assessment has been properly undertaken….’[136] However, the government’s intention remains obvious that UK will be going ‘all out’ for shale gas exploration despite there are vast uncertainties in its potential environmental / human rights impacts.[137] I would submit that such a move would bring about serious human rights violation claims against the state. But on the bright side, these successful claims against fracking permissions would hopefully materialise into an effective remedial instrument for aggrieved local residents.



Conclusion

Ecological sustainability is a tripartite aspiration that demands development to the economy, the environment and the society to be undertaken equally and sustainably. But, as crystal clear as it may be in the wording of legislations or policy publications; the realisation of it is a task many considered onerous and arduous. The example of fracking is a lens for us to perceive the enormous stack of challenges confronted by environmental law in pursuit of a seemingly simplistic idea. Fracking showed us how short-term economic interests could conveniently blindfold our institutions from their repeatedly affirmed objective of sustainable development.

However, for proponents of ecological sustainability, to concede defeat in the conflict between anthropocentric interests and the sustainability of our ecological well-being would be analogous to forsaking the future of our subsequent generations. Although the quest is not without trials and tribulations; if our efforts remain solid and unyielding, the accomplishment of our goal is absolutely realisable. As for fracking, reformative agendas should be advanced to reinforce the current regulatory controls, especially in the face of an uncertain gravity of its future environmental, and ecological, impacts.


‘We do not inherit the earth from our ancestors; we borrow it from our children.’

Moss Cass[138]











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- British Ecological Society, About Ecology (BES) <http://www.britishecologicalsociety.org/about-ecology/>


- Carrington D, Eric Pickles Guilty of ‘Double-Standards’ over energy planning applications (The Guardian 2014)

< http://www.theguardian.com/environment/2014/mar/06/eric-pickles-double-standards-fracking-windfarm>


- Durham Energy Institute, Fracking and aquifers: how far can a frack go? (Durham University 2013) <https://www.dur.ac.uk/resources/refine/HydraulicFracturesRBfinal2.pdf>

- Friends of Earth, Warning of Fracking Bias (Planning Resource 2013)

<http://www.planningresource.co.uk/article/1192695/warning-fracking-guidance-bias>


- Prime Minister Office, Local councils to receive millions in business rates for shale gas exploration (PMO 2014) <https://www.gov.uk/government/news/local-councils-to-receive-millions-in-business-rates-from-shale-gas-developments>


- The European Commission, Environmental Impact Assessment (European Commission 2015) <http://ec.europa.eu/environment/eia/home.htm>



- UK Parliament ‘Environmental Audit Committee Calls for Halt to Fracking’ (UK Parliament 2015) <http://www.parliament.uk/business/committees/committees-a-z/commons-select/environmental-audit-committee/news/environmental-risks-of-fracking-report/>


- United Kingdom Onshore Oil and Gas Group, United Kingdom Onshore Oil and Gas announces next steps in the formation of its community benefits scheme (UKOOG 2014) <http://www.ukoog.org.uk/about-ukoog/press-releases/68-united-kingdom-onshore-operators-group-announces-next-steps-in-the-formation-of-its-community-benefits-scheme>



Legislations / Delegated Legislations

- Civil Procedure Rules

- Climate Change Act 2008

- Human Rights Act 1998

- Infrastructure Act 2015

- Mines (Working Facilities and Support) Act 1966

- Petroleum Act 1998

- Planning and Compulsory Purchase Act 2004

- The Environmental Permitting (England and Wales) Regulations 2010

- The Town and Country Planning (Environmental Impact Assessment) Regulations 2011

- The Town and Country Planning (Local Planning) (England) Regulations 2012

- Town and Country Planning Act 1990

National Decisions

- Barbone v Secretary of State for Transport [2009] EWHC 463 (Admin), All ER 148

- Bard Campaign, David Bliss v Secretary of State for Communities and Local Government [2009] EWHC 308 (Admin)

- Berkeley v Secretary of State for the Environment and others [2000] UKHL 36, [2001] 2 AC 603

- Bernstein of Leigh (Baron) v Skyviews and General Ltd [1978] QB 479

- Bocardo SA v Star Energy Weald Basin Ltd [2010] UKSC 35, 1 AC 380

- Gateshead v Secretary of State for the Environment [1995] Env L R 37 (COA)

- LJP Investment Pty Ltd v Howard Chia Investments (No. 2) [1989] NSWLR 490 (Australia)

- Mitchell v Mosley [1914] 1 Ch 438

- Morge v Hampshire County Council [2011] UKSC 2, 1 WLR 268

- R (An Taisce) v Secretary of State for Energy and Climate Change [2013] EWHC 4161 (Admin), Env L R 49

- R (on the application of Frack Free Balcombe Residents Association) v West Sussex County Council [2014] EWHC 4108, All ER 67

- R (on the application of Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC (Admin) 311, All ER 192

- R v North and East Devon Health Authority, Ex parte Coughlan [2001] QB 213

European level Treaties / Conventions / Legal Instruments

- Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention)

- Council Directive 85/337/EEC [1985] on the assessment of the effects of certain public and private projects on the Environment (Environmental Impact Assessment Directive)

- Treaty of the Functioning of the European Union

European level decisions

- C-392/96 Commission of the European Communities v Ireland [1999] ECR I-05091

- Fadayeva v Russian Federation [2007] 45 EHRR 10

- Lopez Ostra v Spain [1995] 20 EHRR 277

- Taskin and others v Turkey [2006] 42 EHRR 50

- Tatar v Romania (Application Number: 67021/01) (2009) ECtHR

International Treaties

- Declaration of the United Nations Conference on Human Environment

- Rio Declaration on Environment and Development

[1] M Schut, Scientific Handbook for Simulation of Collective Intelligence (University Amsterdam 2007) 15 [2] B Christman, A Brief History of Environmental Law in the UK (2013) 22(4) Environmental Scientist 4 [3] Also known as: Environmentalism movements [4] R Brooks & R Jones, Law and Ecology: The Rise of the Ecosystem Regime (Ecology and Law in Modern Society 2002) 3-4 [5] R Stauffer, Haeckl, Darwin and Ecology (1957) 32 The Quarterly Review of Biology 138 [6] British Ecological Society, About Ecology (BES) <http://www.britishecologicalsociety.org/about-ecology/> accessed: 27/03/2015 [7] My emphasis. B Prendiville, British Environmentalism: A Party in Movement (Revue LISA 2014) para 12, <http://lisa.revues.org/7119> accessed: 27/03/2015 [8] N Turgut The Influence of Ecology on Environmental Law: Challenges to the Concept of Traditional Law (2008) 10 Env L Rev 123 [9] Rio Declaration on Environment and Development, Principles 1-4 [10] M Diesendorf, Sustainability and Sustainable Development in D Dunphy & others, Sustainability: The corporate challenge of the 21st century (Allen & Unwin 1999) 21-22 [11] Ibid [12] Turgut (n 8) 112-113 [13] N Brown & N Kubasek, A Communitarian Green Space Between Market and Political Rhetoric about Environmental Law (1999) 37 American Business Law Journal 127-128 [14] Also known as: Fracking, hereinafter referred to as Fracking [15] E White & others, Shale Gas and Fracking (House of Commons Library 2015) 4 [16] Ibid [17] Royal Society and the Royal Academy of Engineering, Shale Gas Extraction in the UK: A Review of Hydraulic Fracturing (RS/RAE 2012) 17 [18] Prime Minister Office, Local councils to receive millions in business rates for shale gas exploration (PMO 2014) <https://www.gov.uk/government/news/local-councils-to-receive-millions-in-business-rates-from-shale-gas-developments> accessed: 27/03/2015 [19] House of Lords Economic Affairs Committee, Third Report: The Economic Impact on UK Energy Policy of Shale Gas and Oil (UK Parliament 2014) Chapter 5 [20] USA House of Representatives Committee on Energy and Commerce, Chemicals Used in Hydraulic Fracturing (US House of Representatives 2011) [21] Diesendorf (n 10) 22 [22] Town and Country Planning Act 1990, s 57 [23] Ibid, s 55(4) [24] Ibid, s 58 [25] Ibid, s 1(4); Department for Energy and Climate Change, Fracking UK Shale: Planning Permission and Communities (DECC 2014) 4 [26] Ibid [27] The Town and Country Planning (Local Planning) (England) Regulations 2012, Part 6 [28] Planning and Compulsory Purchase Act 2004, s 19(2)(a) and s 38(6) [29] As seen in Rio Declaration on Environment and Development, Principles 1-4 [30] Department for Communities and Local Government, National Planning Policy Framework (DCLG 2012) 4 [31] Diesendorf (n 10) 21-22 [32] Department for Communities and Local Government, Planning Practice Guidance for Onshore Oil and Gas (DCLG 2013) 15 [33] DCLG (n 30) 144 [34] D Carrington, Eric Pickles Guilty of ‘Double-Standards’ over energy planning applications (The Guardian 2014) < http://www.theguardian.com/environment/2014/mar/06/eric-pickles-double-standards-fracking-windfarm> accessed: 27/02/2015 [35] Department for Communities and Local Government, Planning Practice Guidance (DCLG 2014) para 91 <http://planningguidance.planningportal.gov.uk/> accessed: 15/04/2015 [36] See, for example, Barbone v Secretary of State for Transport [2009] EWHC 463 (Admin), All ER 148 [37] DCLG (n 35) para 50 [38] Ibid. My emphasis [39] P Cole & others, Fracking Capitalism: Action Plans for the Eco-social Crisis (A World to Win 2014) 16 [40] Comment by Friends of Earth, Warning of Fracking Bias (Planning Resource 2013) <http://www.planningresource.co.uk/article/1192695/warning-fracking-guidance-bias> accessed: 28/02/2015 [41] DCLG (n 35) para 94 [42] Climate Change Act 2008, Part I [43] United Nations Environment Programme, Gas Fracking: Can we safely squeeze the rock? (UNEP 2012) 12 [44] See, for example, Gateshead v Secretary of State for the Environment [1995] Env L R 37 (COA) [45] R (on the application of Frack Free Balcombe Residents Association) v West Sussex County Council [2014] EWHC 4108 (Admin), All ER 67 [46] Glidewell LJ in R (An Taisce) v Secretary of State for Energy and Climate Change [2013] EWHC 4161 (Admin), Env L R 49 [47] Lord Walker in Morge v Hampshire County Council [2011] UKSC 2, 1 WLR 268 [48] FFBRA v West Sussex CC (n 45) 60 [49] Town and Country Planning Act 1990, s 96A [50] Due to gradual spending cuts to local authorities agreed among major political parties. See Local Government Association, Future funding outlook 2014: Funding outlook for councils to 2019/20 (LGA 2014) 4 [51] The Environmental Permitting (England and Wales) Regulations 2010, Regulation 20 [52] FFBRA v West Sussex CC (n 45) 60 [53] DCLG (n 30) paras 93-99 [54] The European Commission, Environmental Impact Assessment (European Commission 2015) <http://ec.europa.eu/environment/eia/home.htm> accessed: 01/03/2015 [55] Ibid [56] DCLG (n 30) para 3 [57] Berkeley v Secretary of State for the Environment and others [2000] UKHL 36, [2001] 2 AC 603, The Town and Country Planning (Environmental Impact Assessment) Regulations 2011, Sch 4 Part II [58] Information about required contents of ES can be found at DCLG (n 30) para 33 [59] Council Directive 85/337/EEC [1985] on the assessment of the effects of certain public and private projects on the environment (Environmental Impact Assessment Directive) [60] The Town and Country Planning (Environmental Impact Assessment) Regulations 2011 [61] Ibid Sch 1 [62] Ibid Sch 2, sch 3 [63] Ibid Sch 1 para 14 [64] They must all be satisfied to attract a mandatory EIA. DCLG (n 35) para 17 [65] J Broderick and others, Shale Gas: An updated Assessment of Environmental and Climate Change Impacts (Tyndall Centre for Climate Change Research 2011) 105 [66] The Town and Country Planning (Environmental Impact Assessment) Regulations 2011, sch 2 [67] A Kotsakis, The Regulation of the Technical, Environmental and Health Aspects of Current Exploratory Shale Gas Extraction in the United Kingdom: Initial Lessons for the Future of European Union Energy Policy (2012) 21(3) RECIEL 284 [68] C-392/96 Commission of the European Communities v Ireland [1999] ECR I-05091 [69] Town and Country Planning (Environmental Impact Assessment) Regulations 2011, sch 2 [70] Broderick (n 65) 105 [71] Friends of Earth, All that Glitters: Is the regulation of unconventional gas and oil in England really ‘gold-standard’? (FOE 2014) 15 – 16 [72] Ibid [73] Broderick (n 65) 105 [74] Department of Energy and Climate Change, Onshore Oil and Gas Exploration in the UK: Regulation and Best Practice (England) (DECC 2013) 27 05 March 2015 [75] Department for Environment, Food and Rural Affairs, Environmental Permitting Guidance (DEFRA 2013) 3 [76] Environmental Permitting (England and Wales) Regulations 2010, regulation 59 [77] Environment Agency, Working Together: Your Role in Our Environmental Permitting: Our Public Participation Statement (2nd edn EA 2012) paras 4.8 - 4.9 [78] Ibid [79] C Hilson, Framing Fracking: Which Frames Are Heard in English Planning and Environmental Policy and Practice? [2014] J Env L 21 [80] Environment Agency, Onshore Oil and Gas Exploratory Operations: Technical Guidance (EA 2013) 12 [81] Hilson (n 78) 22 [82] Ibid [83] Barbone v Secretary of State of Transport [2009] EWHC 463 (Admin), All ER 148 [84] DCLG (n 35) para 91 [85] Environment Agency, Environment Agency Permitting Decision: Bespoke Permit EPR/BB3000KC (EA 2014) 24 [86] Environment Agency, Cuadrilla Bowland Limited Draft Decision (EA 2014) <https://consult.environment-agency.gov.uk/portal/npsapp/ppd/dd_cuad?pointId=3097799> accessed: 15/04/2015 [87] Hilson (n 78) 24-25; EA (n 85) 24 [88] Hilson (n 78) 24-25 [89] M Wood, “You Can’t Negotiate with a Beetle”: Environmental Law for a New Ecological Age (2010) 50 Natural Resources Journal 192 [90] See Part III [91] Broderick (n 65) 105 [92] L Smith, Planning Reform Proposals (House of Commons Library 2015) 8 [93] UK Parliament ‘Environmental Audit Committee Calls for Halt to Fracking’ (UK Parliament 2015) <http://www.parliament.uk/business/committees/committees-a-z/commons-select/environmental-audit-committee/news/environmental-risks-of-fracking-report/> accessed: 18/03/2015 [94] Friends of Earth (n 71) 17 [95] Treaty of the Functioning of the European Union, Art 191(2) [96] Rio Declaration on Environment and Development 1992, principle 15 [97] UK Parliament (n 123) [98] The Angling Trust, the National Trust, The Royal Society for the Protection of Birds, the Salmon & Trout Association, The Wildlife Trusts and the Wildfowl & Wetlands Trust, Are we fit to frack: Policy recommendations for a robust regulatory framework for the shale gas industry in the UK(2014) 5, 19 [99] FOE (n 71) 17 [100] Ibid [101] Several charities (n 128) 19 [102] United Nations General Assembly, The road to dignity by 2030: ending poverty, transforming all lives and protecting the planet (United Nations 2014) 1-2 [103] K Morrow, Worth the paper they are written on? Human rights and the environment in the Law of England and Wales (2010) 1 Journal of Human Rights and the Environment 87 [104] G Beck, Human Rights Adjudication under the ECHR Between Value Pluralism and Essential Contestability [2008] EHRLR 214-215 [105] Ibid [106] Declaration of the United Nations Conference on the Human Environment, principle 1 [107] ECHR is transposed by Human Rights Act 1998 [108] R (on the application of Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC (Admin) 311, All ER 192 [109] Morrow (n 133) 67 [110] Ibid [111] Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Article 7 [112] Greenpeace (n 138) 221 [113] Morrow (n 133) 74 [114] Borbone (n 36) 148 [115] Ibid, at para 63 [116] R v North and East Devon Health Authority, Ex parte Coughlan [2001] QB 213 [117] Morrow (n 133) 76 [118] Civil Procedure Rules, part 40.20 [119] See Part III [120] Bard Campaign, David Bliss v Secretary of State for Communities and Local Government [2009] EWHC 308 Admin, at 74 [121] Human Rights Act 1998, s 3 [122] Council of Europe, Manual of Human Rights and the Environment (2nd edn Council of Europe Publishing 2012) 30-31 [123] D Shelton, Developing Substantive Environmental Rights (2010) 1 Journal of Human Rights and the Environment 94 [124] Morrow (n 133) 67 [125] Lopez Ostra v Spain [1995] 20 EHRR 277 [126] Taskin and Others v Turkey [2006] 42 EHRR 50. A similar stance can be found in Fadayeva v Russia [2007] 45 EHRR 10 [127] Taskin (n 156) [128] Fadayeva (n 156) [129] Ibid [130] Tatar v Romania (Application No.: 67021/01) (2009) ECtHR [131] Shelton (n 153) 107 [132] See Part II and Part III [133] Ibid [134] Global Network for the Study of Human Rights and the Environment and others, A Human Rights for Hydraulic Fracturing and other Unconventional Gas Development in the United Kingdom (GNHRE 2013) 17 [135] See Part II and Part III [136] GNHRE (n 164) 27 [137] PMO (n 18) [138] M Cass, Text of Speech on Environmental Policy at the Ministerial Meeting of the OECD Environment Committee, Paris (Australian Government Digest 1975) 1145

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