Object

Representation ID: 340

Received: 11/10/2019

Respondent: Friends of the Earth England, Wales, Northern Ireland

Legally compliant? No

Sound? No

Duty to co-operate? Not specified

Our previous representations to the Issues and Options consultation (2018) provided detail into how the planning impacts of hydraulic fracturing are comparatively worse compared to conventional forms of oil and gas exploration/ extraction. Such disparities for fracking include:
- longer drilling timeframes;
- larger drilling rigs (60m+);
- greater numbers and frequencies of HGV/tanker movements (re carrying large amounts of water to and wastewater away from the site; as well as materials and plant to accommodate multiple stages of fracking);
- longer periods of 24-hour drilling activity due to deeper drill depths compared to conventional drilling (→ prolonged drilling, lighting, noise and HGV vehicle movements);
- greater numbers of and larger well pads7 required as multiple boreholes are needed to maintain flow pressure;
- heightened risks to ground water quality as fracking fluids are injected at depth into strata and with flowback rates varying between 15-70% depending on geology;
- increased climate change impacts arising from fugitive emissions; and
- heightened risk of induced seismicity (linked to the injection of large volumes of fracking fluid and interaction with fault lines) the impacts and fall-out of which have led to a moratorium on fracking at Preston New Road, Lancashire8.
Having considered the increased impacts hydraulic fracturing presents, we note that a number of other newly adopted and more advanced minerals plans include policies specifically worded to ensure the protection of environment and local communities. These plans include West Sussex Minerals and Waste Plan (adopted 2018); East Riding and Hull Joint Minerals Local Plan (post EIP and Inspector’s report published); and the North Yorkshire Minerals and Waste Joint Plan (NYMWJP) (post EiP, awaiting Inspector’s report). These include policies that:
- NYMWJP: a minimum set-back distance of 500m from sensitive receptors; maximum well pad densities; consideration of cumulative climate change and a local definition of hydraulic fracturing to ensure the impacts of ‘non-high volume fracturing’ are captured also (see next paragraph for more detail on this point).
- East Riding and Hull Joint Minerals Plan: includes S19(1A Duty) compliant wording on climate change mitigation/adaptation
- West Sussex Minerals Plan: includes specific restrictions for limiting such activity in groundwater protection zones 2 and 3.
Given these best practice policy examples above, and the moratorium of fracking activity at Preston New Road resulting from August’s 2.9ML induced seismic event, it’s quite surprising that draft policy MP12 fails to provide more detailed policy wording to address these issues and fails to recognise that the impacts of unconventional and conventional hydrocarbon can differ significantly. We note the justification wording defends this approach, citing: “no justifiable reason in planning policy terms to separate shale gas from other hydrocarbon development… Separate legislation also identifies certain requirements in relation to protected groundwater areas or other protected areas” (para 4.108). We view this approach is unsound, as it ignores fracking’s exacerbated impacts compared to conventional hydrocarbon extraction and the very obvious loopholes in legislation.
Associated Hydraulic Fracturing vs non-Associated Hydraulic Fracturing
While legislation and national policy define ‘protected areas’ (and ‘other protected areas’) where hydraulic fracturing is not allowed (underneath9 or at the surface10,11) such restrictions only apply to Relevant/Associated Hydraulic Fracturing (AHF) proposals. The most recent definition of AFC is provided at para 3.20 of the government’s formal response to the onshore hydraulic fracturing consultation: ‘any operations which use more than 1,000 cubic metres of fluid at any single stage, or expected stage or 10,000m3 in total’ (see endnote 11). The point is that the very legislative and government policy safeguards NCC rely upon to justify a very sparse approach to unconventional hydrocarbons in Policy MP12 do not provide protections for ‘protected areas’ from non-AHF (i.e. or smaller scale fracking) schemes. The current approach - in failing to define fracturing that encompasses both AHF and non-AHF and/or additional surface protections - potentially leaves a range of NCC’s ‘protected areas’ exposed to non-AHF’s impacts. This is despite those impacts between AHF and non-AHF being almost identical.
Policy MP12 is unsound (not justified) and fails to provide adequate surface protections in ‘protected areas’ – including SSSIs, European sites and Ramsar sites - for non-AHF schemes. An example of how this can be overcome is by way of the NYMWJP which has proposed its own definition of hydraulic fracturing12 to cover all fluid volumes.
Local Protections
More tailored policy wording would help address the intensified planning impacts of fracking compared to conventional drilling and extraction, especially at the exploratory stages (see above and previous representations). Here, there is potential for simultaneous 24 hour drilling and hydraulic fracturing activity, frequent HGV movements (plant/rig equipment/water/waste water etc), fugitive emissions, 24 hour noise, air quality, lighting impacts – which will exist in combination at the site. These are all in addition to the increased risks of induced seismicity. While national policy calls for such planning impacts to be made ‘acceptable’, we propose a 500m surface buffer to ensure that local residents are more than adequately protected from impacts of these industrial operations. This policy approach originates from the NYMWJP, as advocated by the HCLG Select Committee as part of their Inquiry into fracking guidance.13 Their report states:
‘Given that the English planning system is plan-led, Mineral Planning Authorities should be free to adapt their Local Plans as they see fit as long as they do not arbitrarily restrict fracking developments. It is essential that Mineral Planning Authorities have the right to put conditions in their Local Plans which can be justified having proper regard to local circumstances.’ (pg 71 – 2018).
At EIP this year, the Inspector was given evidence that demonstrated how directional and lateral drilling, key components of fracking drilling methodologies, would enable access shale resources, despite the operation of the proposed 500m buffer. It is also worth noting that last year, INEOS used this drilling methodology as a means to justify their strategy to access extensive shale reserves under the North Yorkshire National Park, as they would not actually require well pads at the surface of the park’s boundary14. As such, these methodologies should ensure a 500m buffer is not overly restrictive to operators.
Induced Seismicity
Induced seismicity is now also a major issue for fracking and represents a key justification for more detailed policy wording (or a separate policy). While OPPG suggests that induced seismicity is within the remit of OGA (namely the Traffic Light System or TLS), the same guidance also states quite clearly that:
‘Whilst these issues may be put before mineral planning authorities, they should not need to carry out their own assessment as they can rely on the assessment of other regulatory bodies. However, before granting planning permission they will need to be satisfied that these issues can or will be adequately addressed by taking the advice from the relevant regulatory body.’ (Paragraph: 112 Reference ID: 27-112-20140306 - Revision date: 06 03 2014)
We would like to draw NCC’s attention to events which have taken place at the Preston New Road (PNR) fracking site in Lancashire. During the application stages, its operators (Cuadrilla) had stated that with embedded mitigation (such as seismic monitoring arrays and the TLS) the upper limit of 1.5ML would never be breached. Their original planning statement15 also stated:
The seismic events induced by hydraulic fracturing do not typically exceed magnitude 0 ML and very rarely exceed 0.5 ML. Data from the surface array will be used to mitigated the level of induced seismicity from hydraulic fracturing operations so that they are below 1.5ML.
As has clearly been demonstrated by August’s 2.9ML seismic event, it’s obvious the TLS and other forms of embedded mitigation have failed to mitigate the very real impacts of induced seismicity resulting from fracking in the UK. By way of comparison, it was earthquakes of 1.5 ML and 2.3ML associated Cuadrilla’s Preese Hall fracking site in April and May 2011 that led to a moratorium being introduced for fracking by the then Coalition Government. Last August’s 2.9ML event was significantly more powerful than this and so our concern is warranted and justified.
We consider that future risks of seismicity and the lack of effectiveness of the TLS to warrant enough concern to bring into question whether MPAs can “be satisfied” with the OGA’s TLS mitigation. We would recommend that any oil and gas policy include caveats to this effect. We would suggest that future fracking proposals should be supported by information to demonstrate the known location of any faults and a detailed assessment of the potential for induced seismicity to occur as a result of the proposed development. This requirement would make the plan justified in light of all available evidence – including lessons learned from live fracking sites, such as PNR in Lancashire.
Climate Change
Linked to our comments to draft policy SP3 above, it seems since last year’s Issues and Options consultation that other progressive fracking policies have been adopted elsewhere – namely in Kirklees. It is vital that this plan takes into account such policy precedents and evident shifts in UK legislative and policy arenas; with the UK government committing to a net zero target and the Committee on Climate Change advising that all sectors need to play their part in helping to reduce emissions16. With adopted Kirklees Local Plan policy LP42 including a requirement for a net zero impact for minerals developments, this plan should also aim higher. By seeking similar net zero requirements, the policy would ensure evident risks of fugitive emissions linked to fracking (production)17 are addressed, and NCC would be helping ensure its policies are aligned with UK Carbon Budgets (as per the Committee on Climate Change’s 3 tests). We recommend the Notts Minerals Plan adopts such a target and sets out measures necessary to achieve this. See our recommended policy amends below.
Restoration
Our amendments below include more NPPF (2019) compliant wording linked to restoration, which calls for: “restoration and aftercare at the earliest opportunity” – a point missing from the policy wording of draft policy DM12: ‘Restoration, aftercare and after-use’. This emphasis is required for unconventional operations, especially in the context of fugitive emissions, to ensure boreholes, well heads and pads are restored in a timely manner, rather than left ‘plugged’ and in-stasis until the operator has raised further venture capital finance for another frack. By incorporating this optional restoration bond requirement - similar to what is proposed in the North Yorkshire Minerals and Waste Joint Plan – we feel the policy is made sound (justified). Such justification is based on the less certain funding mechanisms, namely investment/venture capital18 - which it is obvious this novel industry relies so heavily upon - and will ensure full restoration can be achieved even if a company goes into liquidation or its funders sell up. Evidence of this occurring can be found from the US, where even with government secured restoration bonds, the cost of clean-up and restoration is deemed too high and the wells are left abandoned – known as orphan wells19.
The need for a restoration bond caveats is especially pertinent for an industry where operators (i.e. the oil and gas drilling companies themselves) are bought and sold on a regular basis (see Third Energy’s sale to York Energy20 – a subsidiary of Alpha Energy in the US which now has ownership of the Kirby Misperton’s fracking site in North Yorkshire). Such a bond is therefore justified in planning terms in light of fracking being such a speculative industry, although again it maintains flexibility in not being applicable in every instance.
Other Comments on the Introduction/Justification Section for Policy MP12
Coal Bed Methane
Para 4.100 – The information provided on coal bed methane seems limited, especially compared to the previous version of the plan which provided useful further insight. The current submission version simply states: “coal bed methane extraction involves removing methane directly from the coal seam without mining the coal”. No other information is provided about the extraction process, and such the plan fails to provide the public with adequate enough information as to what will occur underground. As it’s unlikely that non-planners would be familiar with PPG, we feel additional detail (either from PPG or wording from the previous plan) be included to enable at least some basic knowledge about the methodologies involved.
Shale Gas
The wording of paragraphs in the Introduction/Justification sections for policy MP12 – regarding shale gas - fail to take into account recent changes in law, national policy, academia and evidence on the ground (e.g. seismic event mentioned above). When reading the current draft text, there seems to be a rigid adherence to out of date PPG wording and principles for minerals (all written in 2014), rather than any consideration of more recent developments
that justify a more tailored policy approach. While consistency to national policy is a soundness test in itself, there are exceptions to the rule, especially where newer evidence justifies a different approach.
Our text amendments (see below) include references to the removal of para 209a from the NPPF21,22; the publication of recent University of Nottingham/BGS data23 which infers much reduced volumes of gas in the Bowland Shale, as well as lessons learned from operational fracking sites in the UK (specifically events leading to the current moratorium on fracking activity at the Preston New Road).
As it stands, the introductory section for shale lacks sufficient detail and reference to the current state of play of fracking in the UK right now. With these factors included, the introduction better frames and justifies the more prescribed policy approach to fracking – as suggested in our policy amendments below.
Finally, we would point out that facilitating the delivery of mass-scale fossil fuel extraction is in direct contradiction to the climate change paragraphs of the NPPF (paras 149 and 150), as well as recently enacted legislation to make the UK net zero carbon by 2050. The ‘great weight’ which the NPPF accords to mineral exploration and extraction must be balanced against paragraphs 148-154, specifically 149 which states:
‘Plans should take a proactive approach to mitigating and adapting to climate change, taking into account the long-term implications for flood risk, coastal change, water supply, biodiversity and landscapes, and the risk of overheating from rising temperatures.’ [our bold emphasis]
The current draft wording fails to reflect these other key climate change paragraphs of the NPPF, which with the quashing and subsequent removal of para 209(a), are also relevant when detailing the national policy context and drafting unconventional hydrocarbon policies. It is worth reiterating that with the CCC’s net zero 2050 recommendation (and government legislation enacting this target), local plans should realistically go beyond the environmental NPPF objective of moving to a low carbon economy; which is now superseded by the 2050 commitment.
Our amends to policy MP12, as well as to its introductory and justification sections are below.