Environmental regulation

Early exploration stages of unconventional gas development such as borehole drilling are likely to fall within both ‘General Permitted Developments‘ under planning regulations and ‘General Binding Rules‘ under water regulations.

This means that they may be exempt from active regulation by either the planning authority or the Scottish Environment Protection Agency (SEPA – Scotland’s environmental regulator) provided they adhere to certain rules and standards.

Once a project enters the development phase, it may fall under certain regulations, however it is possible that  projects will fall under certain thresholds meaning they are exempt from any environmental regulation – but not planning permission – until they are at the stage of commercialisation.

Environmental Impact Assessment

Environmental Impact Assessment (EIA) is a way of assessing the possible impact that a development might have on the nearby environment. Major developments always require an EIA, but because unconventional gas developments can be classed as local developments, they do not always require an EIA.

With local developments, the requirement for an EIA will depend on a number of factors, but is generally down to the size of the development. If the development is less than half a hectare (highly possible with this kind of development), it may not require an EIA.

However, as the project matures, other factors come into play (such as the volume of gas being extracted) that trigger the requirement for an EIA. Therefore it is likely that an EIA will be required before commercialisation.

You can find out more about the specific requirements for EIA in the Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2011.

SEPA’s role

SEPA is a statutory consultee for major developments, but not necessarily for local developments. If a local development has an EIA, then SEPA require to be consulted. However, as unconventional gas developments will not necessarily require an EIA, particularly at testing stage, SEPA may go un-consulted.

Whether or not SEPA is consulted by the planning authority, the developer must apply to the regulator for a license for any activity that may impact on the water environment under the Controlled Activities Regulations (CAR), unless the activity falls under certain thresholds and meets CAR General Binding Rules.

It is likely that developers will be able to act under the General Binding Rules in exploration stages, and possibly even during the development phase, but developers will always require permission from SEPA to inject fracking fluids into the ground and dispose of abstracted fluids and waste water.

Risks to the water environment are the ONLY environmental factors considered by SEPA in regulating onshore unconventional gas extraction. This means the climate change impacts of coalbed methane and shale developments go unchecked.

Controlled Activities Regulations

Activity that might affect Scotland’s water environment are regulated under the Water Environment (Controlled Activities) (Scotland) Regulations 2011, (more commonly known as the Controlled Activities Regulations (CAR)) by SEPA. The CAR regulations were introduced to implement the EU Water Framework Directive.

CAR permits are granted for specific activities including:

•    Discharging in water and ground water
•    Impounding water courses
•    Abstracting water from water bodes
•    Undertaking engineering activities in or near water bodies

In issuing the license SEPA may:

•    Ask the developer to advertise the application to allow local interested parties to engage in the licensing process.
•    Seek to issue a draft licence for consultation under the EU Public Participation Directive.

SEPA consider a range of environmental factors and whether operator is a fit and proper person to hold the licence in evaluation of the application. CAR licenses are only issued when SEPA are satisfied that any risks to the water environment are negated or within manageable tolerances.

The only instance of SEPA issuing fracking permits to date is to Greenpark Energy (now owned by Dart Energy) for its Canonbie development. SEPA did not issue the draft license for consultation.

Freedom of Information regulations

While certain information may be made available under Freedom of Information legislation, companies in the EU (and around the world) tend not to publicly disclosing the chemicals used in fracking projects, citing commercial confidentiality. In fact, in the USA fracking is specifically exempt from regulation under Safe Drinking Water legislation.

This makes it impossible to assess the environmental and health risks, including full life cycle impacts, of fracking.

However, in Scotland SEPA made Greenpark Energy’s Hydrological Assessment – the study the company had to submit to get permission to inject fracking fluids at their Canonbie site – public under Freedom of Information.

The Hydrological Assessment contained details of all the chemicals and quantities of chemicals in the fracking fluid. This indicates that in some ways the Scottish regime may be ahead of others.