A temporary pause
The moratorium has been widely criticised in the press as an “election stunt” to hold on to voters as public support for fracking has dropped to an all-time low. The main criticism has been around the fact this moratorium is only a temporary pause and so easy to reverse when “compelling new evidence is provided”.
Published a few days later, the government response to consultation on whether to introduce permitted development rights for shale gas exploratory drilling, said that although not being taken forward now, “there could be considerable merit in taking forward these proposals in the future” and that “the government remains committed to making planning decisions faster and fairer for all those affected by new shale developments.”
But the temporary nature is not the only problem with this moratorium. It is also partial in scope, only covering some fracking operations. And there is confusion about which ones.
The moratorium announcement says that the government will take a presumption against issuing Hydraulic Fracturing Consents (HFC). The requirement for an HFC, along with other controls on shale gas exploration, was introduced by the Infrastructure Act 2015 (IA2015). An HFC is given by the Secretary of State (SoS) for Business, Energy and Industrial Strategy (BEIS). It is required for operations that meet the “associated hydraulic fracturing” definition in the IA2015, which is hydraulic fracturing that “involves, or is expected to involve, the injection of—
- more than 1,000 cubic metres of fluid at each stage, or expected stage, of the hydraulic fracturing, or
- more than 10,000 cubic metres of fluid in total.”
However, since the 29 November 2017 BEIS ministerial direction to the Oil and Gas Authority (OGA), all operations that meet the definition of “relevant hydraulic fracturing” (introduced in 2016 regulations for protected areas) should also be referred to the SoS for consent. The difference between “relevant” vs “associated” hydraulic fracturing is that the volume is, or is expected to be 1,000m3 at any stage vs each stage (this does make a very big difference!).
So we interpret this as that the moratorium covers only to operations that meet either the “associated” or “relevant” hydraulic fracturing definition.
4 Nov 2019 – Andrea Leadsom’s Written Statement Confusion
The above interpretation is contradicted by Mrs Leadsom’s statement to Parliament on 4 November 2019, where she refers to HFCs but also says that “the OGA are therefore unlikely to approve future Hydraulic Fracture Plans unless new evidence is presented.”
Hydraulic Fracture Plans and Hydraulic Fracturing Consents are two different things.
A Hydraulic Fracture Plan (HFP) is required by the OGA. Its main purpose is to mitigate the risk of induced seismicity through a traffic light system contained within the HFP. The OGA guidance states that an HFP will always be required for hydraulic fracturing operations (any operation where injections are above fracture gradient), but in evidence given to Housing, Communities and Local Government (HCLGC) in 2018, the OGA seems to contradict this by saying that they would not always require an HFP for operations that are below the IA2015 volume thresholds.
It is therefore unclear when exactly an HFP is required, but it is clearly required for a wider spectrum of fracking operations than either “associated” or “relevant” hydraulic fracturing. Therefore, Mrs Leadsom’s statement suggests that the moratorium covers a wider spectrum of operations than “associated” or “relevant” hydraulic fracturing.
Since the reason for imposing the moratorium is because “it is not possible with current technology to accurately predict the probability of tremors associated with fracking” and since seismicity is regulated through an HFP, this conclusion seems correct.
Fracking of PNR1 and PNR2 – neither “associated” nor “relevant” hydraulic fracturing
Neither of the Preston New Road (PNR) fracking operations in 2018 (PNR-1) and 2019 (PNR-2) met the definition of “associated” or “relevant” hydraulic fracturing. The maximum volume in any stage in both cases was only 400m3+, while the total volumes were well below 10,000m3 (see the numbers highlighted in pale salmon below).
In both cases Cuadrilla sought Hydraulic Fracturing Consent from the SoS for BEIS because the expected volumes were much higher than those achieved in the actual operations. It appears that, had Cuadrilla made more realistic expectations, they would not have had to obtain HFCs for neither of the PNR wells.
However, even if the expected volumes matched the reduced volumes actually achieved, Cuadrilla would have likely had to submit and agree Hydraulic Fracture Plans with the OGA for both.
Testing the Moratorium
It looks like the fracking problem isn’t gone at all. The first test case for the moratorium (if it is not reversed before then) might be the Wressle, North Lincolnshire planning enquiry decision, where a Hydraulic Fracture Plan is required for the planned operations (and according to Drill Or Drop, the Environment Permit for the site makes 27 references to hydraulic fracturing), but where the volumes are not expected to meet the “associated” or “relevant” definitions of hydraulic fracturing, and therefore won’t need a Hydraulic Fracturing Consent.
Other cases to watch are the Harthill site in S Yorks where Ineos is pursuing a shale gas development but the company said that the moratorium has no effect since they are not fracking, and Woodsetts (also in S Yorks), where Ineos installed new protest injunction notices.
What about acid stimulation?
In any case, the moratorium definitely does not cover matrix acid stimulation – a form fracking carried out through injections below fracture gradient (where the rock is dissolved by acid rather than fractured under hydraulic pressure). It is suspected that this form of well stimulation might already be taking place at sites in Surrey and Sussex under the guise of acid wash, therefore escaping vital protections and regulations, including the traffic light system for induced seismicity. Given that, according to data from the British Geological Survey (BGS), Surrey is now one of the UK’s earthquake hot spots, this is a truly shocking state of affairs.
P.S. We are inviting signatures for our open letter to the Government to close this loophole and ban all forms of fracking. The letter is based on an in-depth legal briefing that goes into the above issues in more detail. See here for more.
Acknowledgements: the above analysis would not have been possible without the comprehensive and in-depth reporting by Drill Or Drop?
Sources for comparison chart of high volume hydraulic fracturing:
Preese Hall, 2011