Draft Onshore Hydraulic Fracturing (Protected Areas) Regulations 2015

Christian Matheson Excerpts

Tuesday 27th October 2015 General Committees

[Andrea Leadsom]

As I said, at the moment, we import 40% of our gas needs, and by 2030 that could increase to around three quarters of the gas we use, so shale is vital, not just to reduce our reliance on imports but because it can create an energy bridge while we further develop renewable energy, improve energy efficiency and build new nuclear generating capacity.

[Christian Matheson (City of Chester) (Lab)]

On that point, will the Minister give way?

[Andrea Leadsom]

I will not give way at the moment. I would like to make some progress in making my case and then I will take some interventions.

Importantly, studies show that the carbon footprint of electricity from UK shale gas is likely to be significantly lower than that of unabated coal and imported liquefied natural gas. Shale offers a valuable decarbonisation route from where we are today to where we want to be with a cleaner energy future.

Exploring for shale will also help create jobs and grow local economies. Investment in shale could reach £33 billion and support as many as 65,000 jobs in the oil, gas, construction, engineering and chemicals sectors. Locally, that could mean not just highly skilled jobs, but cementing contracts, new facilities and work for local businesses such as lorry drivers and income for local restaurants and bed and breakfasts.

The draft regulations serve to strengthen further the protections already in place for protected areas. It is right that we are debating them at the earliest opportunity, as we agreed to do during debate on the Infrastructure Act 2015. The powers to make the regulations are found in section 4B of the Petroleum Act 1998, as inserted by section 50 of the Infrastructure Act, which, following scrutiny in this House and the other place, received Royal Assent in February 2015.

The Infrastructure Act requires the Government to specify protected areas within which hydraulic fracturing cannot take place. As hydraulic fracturing occurs far below the surface, the regulations can relate only to subsurface activities, so they will not contain an answer to all the questions Members may wish to raise about hydraulic fracturing at surface level; however, I will address those questions in a moment.

I remind hon. Members that sections 4A and 4B of the Petroleum Act set out further safeguards for onshore hydraulic fracturing in England and Wales to provide the public with confidence that the shale industry is being developed in a safe, balanced and measured way. The Act lays down a number of conditions that must be satisfied before a hydraulic fracturing consent is issued by the Secretary of State. It includes two conditions specifying that associated hydraulic fracturing cannot take place within “protected groundwater source areas” or “other protected areas”.

[Andrea Leadsom]

If my hon. Friend will bear with me, I will certainly give way in a moment.

Those two terms are not defined in the Act. Instead, the Act contains a requirement for the Government to produce draft regulations with the proposed definitions and to lay them in both Houses by the end of July this year. To honour that commitment, we laid the instrument in draft form on 16 July.

Let me be clear: despite accusations to the contrary by Opposition Members, there has been no attempt to sneak the regulations past Parliament. The instrument has been in the public domain for three months, during which time the Opposition have not requested a debate on the Floor of the House, so to affect outrage that there will not be a House debate at such a late stage—hours before this Committee met—is pure political point scoring. On that point, I will give way to the hon. Member for City of Chester.

[Christian Matheson]

It is okay. Time is moving on.

[Andrea Leadsom]

In that case, I give way to my hon. Friend.

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[Andrea Leadsom]

The regulations tighten the protections on hydraulic fracturing; that is precisely what they are for. As I have made clear, they deal with the subsurface implications of hydraulic fracturing, a process that occurs far below ground level, and they will tighten the protections. Far from loosening them or turning back on whatever the hon. Gentleman seems to think, they will improve the protections.

[Christian Matheson]

I accept what the Minister is saying: the regulations deal with what is happening far below ground level. But for that to happen far below ground level, something has to happen at the surface. Frankly, I cannot see why the Minister is making that rather false distinction.

[Andrea Leadsom]

I am grateful to the hon. Gentleman because he gives me the chance to repeat what I said, which is that the Infrastructure Act required the Government to lay regulations to deal with the hydraulic fracturing process, which happens far below the ground. We will, as soon as possible, make a statement regarding the areas on ground level—the surface drill level—in which activity will be banned. We are looking very carefully at how to define and protect our most valuable areas. We will be making announcements shortly, but that is not for today. These regulations are the consequence of a requirement in the Infrastructure Act to deal with the subsurface implications, so I will move on.

The draft regulations set out definitions for the protected groundwater source areas and other protected areas in which hydraulic fracturing will be prohibited, and will afford greater protection to some of our most precious areas in a manner that still meets the Government’s broader policy objective of supporting the long-term development of the UK’s shale gas industry.

Regulation 2 defines protected groundwater source areas. The definition is equivalent to the existing definition of source protection zones 1, which applies to those areas close to drinking water sources where there is the greatest risk associated with groundwater contamination. The draft regulations ensure that the process of hydraulic fracturing cannot take place in such areas at depths above 1,200 metres. The vast majority of drinking water supplies are located at depths above 400 metres. The limit therefore provides at least 800 metres between the depth of most drinking water sources and the highest possible level at which hydraulic fracturing can take place.

As required by the Infrastructure Act, we consulted the Environment Agency and Natural Resources Wales on the definition of protected groundwater source areas. They confirmed that they are content with the definition being aligned with source protection zones 1, as that reinforces their approach to controlling risks from other groundwater activities. Indeed, it is already the case that neither agency permits onshore drilling for oil or gas, which does currently happen in the UK—to be clear, hydraulic fracturing does not—in source protection zones 1. They have successfully influenced operators not to apply for sites in those zones and have ensured that pipelines do not run through such areas. Furthermore, if either agency assesses that more stringent controls are needed to protect groundwater, those will be applied as conditions in the environmental permits required for all developers. The proposed definition would not affect the environmental regulator’s current powers to refuse permit applications within source protection zones 1, 2, 3 or wider on a case-by-case basis, if it considers that an activity poses an unacceptable risk to the environment.

Regulation 3 defines “other protected areas” as national parks, the broads, areas of outstanding natural beauty and world heritage sites. The draft regulations ensure that the process of hydraulic fracturing cannot take place above 1,200 metres below ground in such areas. In defining protected areas there is a need to strike the right balance, affording them additional protection without stifling the nascent shale industry. The Government firmly believe that the depth limit chosen—1,200 metres—strikes that balance.

In addition, national parks, the broads and areas of outstanding natural beauty are our finest landscapes and are afforded the highest status of landscape and scenic beauty protection within the planning system. Similarly, world heritage site status is the highest international heritage designation. Our world heritage sites are simply irreplaceable, and the Government take their responsibility to conserve and protect them very seriously.

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[Dr Whitehead]

My hon. Friend may well be right. He has drawn attention to the impact assessment accompanying the statutory instrument, which dwells at length on the relative utility for the public—or private—purse of fracking at 1,000 metres or 1,200 metres. Even assuming—this is what the hon. Member for Newbury and I were puzzling about a little while ago—that there could conceivably be a proposition that one could drill diagonally from outside the areas in question below 1,200 metres, and that that would not give rise to a great deal more danger or problems for the whole process than drilling vertically down, a 200 metre “additional protection zone” seems an odd creation.

Either the 1,000 metre limit below which fracking may take place nationally is deemed not to be safe, but under these particular areas 1,200 metres is safe—in which case why is there a 1,000 metre prohibition for the rest of the country, and additional protection under areas of outstanding natural beauty and national parks—or there is no difference as to protection. In that case, the statutory instrument is a completely vacant measure, which should not have been put before the Committee in its present form, as it makes no difference to the reality of what goes on under the surface.

There is another strange locution in the statutory instrument, about the question of what a national park is. The regulation refers to

“land at a depth of less than 1,200 metres beneath…a National Park”

as if a national park were merely what is on the surface. In planning terms, it is not possible to be granted planning permission in a national park if what is under the national park is not taken into account. The definition of a national park is not just the surface of the national park; in planning terms, it is the surface and what is under the national park. Therefore, we cannot decide to introduce even secondary legislation that treats a national park as if what is under it is nothing to do with it and as if the national park is merely a millimetre deep linear feature on the surface of the earth.

[Christian Matheson]

My hon. Friend makes an interesting point. I recall going to Edale in the Peak District national park when I was a child. I visited Blue John mines and Speedwell cavern, which are rather deep under the national park. They are considered to be important tourist attractions within that national park, even though they are underneath it.

[Dr Whitehead]

My hon. Friend makes a strong point, which leads me to draw attention to the word “within”, which is in condition 6 of section 4A of the Petroleum Act 1998. “Within” a national park must mean what is in and under it. It is therefore illogical—and, indeed, a simple misreading of what a national park is—to try to define a national park as if it consisted of two separate things, one for the purpose of what is on the surface and the other for the purpose of what is 1,200 metres beneath it. I contend that this was simply not what was set out when the Act was passed. Indeed, the apparent strength of the bans that were set out at that point may have caused some doubting Members to vote for the legislation in the first place.

One can, at the very least, say that this provision is a serious diversion of the intention of the Act—of what the Act said and, indeed, what those who proposed it said about it at the time. Either this SI has been accidentally very badly drafted, meaning that it allows fracking activity in all of these areas while claiming that it does not, or it has been deliberately drafted to take a very fine definition of what

“specify the descriptions of areas”

means to drive a coach and horses through the protections that Members thought were in the Act when it became law.

Under those circumstances, it would be best if the SI were simply withdrawn to be returned for further consideration. At that point, if and when the Minister decides what should have been done in the first place—which is to specify the extent of the protections that are to be on the surface—a properly drafted SI can be brought forward with that protection so that Members can see whether this provision is an accidental or a deliberate diversion of the intention of the Act. Either way, we demand that the SI is withdrawn. Failing that, we will divide the Committee. This is not just a question of whether the Government vote one way and the Opposition vote another. All hon. Members are engaged in a joint endeavour about whether the protections put forward in the Infrastructure Act, which all hon. Members here voted on, should be maintained or set aside.

Some hon. Members may already have corresponded with constituents about protections for various areas in their constituencies. The hon. Member for St Austell and Newquay has an area of outstanding natural beauty in his constituency, as does the hon. Member for North Cornwall. The hon. Members for Lichfield and for Croydon South, and the right hon. and learned Member for Beaconsfield have water source protection zones in their constituencies. The hon. Member for Skipton and Ripon has a national park in his constituency; he is doing rather well there. Indeed, all but one of the hon. Members on the Committee have sites of special scientific interest in their constituencies. It is a question not simply of possible party animus, but of how Members want to vote in light of how those sites in their constituencies may be dealt with and what they have said about those sites. I merely draw attention to the fact that should hon. Members on either side of the Committee decide to vote for the SI, they will effectively be saying that those areas in their constituencies, contrary to their understanding and that of their constituents, have no protection. That is a weighty decision for hon. Members to take.

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[Christian Matheson]

I agree with my hon. Friend the Member for Southampton, Test that the regulations simply are not up to scratch. The hon. Member for Newbury raises an interesting point, but the idea that we can somehow separate what happens 1,200 metres below the surface from what happens on the surface is absurd and therefore the idea that we can separate the regulations for one and the regulations for the other is equally absurd. Yes, lateral drilling takes place, but it does not take place as far as perhaps the hon. Gentleman hopes that it might.

In the brief time available to me, I want to talk about some of the problems with the drilling. The industry-accepted figures on well failure stand at 7% of wells failing immediately, and Schlumberger, the world’s biggest fracking company, cites failure rates of 60% over a 30-year span, so there is a very high likelihood that wells will fail. The Minister talked in her opening address about the 400-metre to 1,200-metre depth, but what happens if the well fails within that zone—within the zone that is not being fracked—and then the pollution and gas escapes that my hon. Friend the Member for Bolsover talked about in relation to the coalmining industry happen within that zone? We simply cannot guarantee that well failure will not take place within that zone.

There is a problem, in that there was an agreement and assurance was given before the general election that SSSIs would not face fracking. Labour Members are becoming increasingly used to the Government saying one thing before a general election and doing something entirely opposite after it: whether it is saying, “There will be no top-down reorganisation of the NHS,” and then introducing the Health and Social Care Act 2012; saying, “There will be no changes in tax credits,” and then bringing in the Government’s tax credit cuts, or saying, “We are the greenest Government ever,” and then replacing that with, “Get rid of all the green crap”. However, that brings into question the Government’s motives and, indeed, their credibility in this area.

Additionally, in the Infrastructure Act, engineering standards, environmental protections and seismic monitoring measures were discussed, and the Minister talked in her opening speech about ensuring that we have high safety standards and strong regulatory regimes. Because she is not bringing those forward at the same time as this statutory instrument, there are grounds for us to be cautious about whether the Government will go back on those promises and assurances as well. There is enough doubt about the Government’s credibility to prevent us from approving this statutory instrument without seeing everything that goes on on the surface. I remind you, Mr Hanson, of the 24-hour a day operations, the huge air and light pollution and all the heavy goods vehicle movements that go with it. This is not the right time to introduce a statutory instrument about something that is happening down below, because it is intrinsically linked to what is happening on the surface.

[Several hon. Members rose—]