Concluding our feature on Planning Law, Lawyer Monthly speaks to W Robert Griffiths QC, a practising Queen’s Council and Joint Head of Chambers of 4-5 Gray’s Inn Square. Robert specialises in commercial, administrative, planning and regulatory law.
As an expert in the oil and gas regulatory regime, what would you name as the ‘issues of the day’ in this area?
The issue of the day, if not the decade, is the commercial exploitation of onshore oil and gas exploration. There is no bespoke or streamlined regulatory framework in place and the same regulatory system applies to conventional as well as shale gas and oil production. Although the regulations in place are rigorous, thorough and address the environmental and health risks, the system lacks coordination and is unnecessarily complicated. This regime has been the subject of much criticism. The House of Lords Economic Select Committee recently reported that,”Bureaucratic complexity and the diffusion of the authority are not the best basis for clear and effective regulation of a new and fast evolving industry.”
Fracking is a controversial subject currently, sparking lots of heated debate amongst supporters and opposers of the process. What are your views on this issue?
There is no doubt that is fracking is not carried out competently and the regulatory regime is not robust, then like any activity of its kind it can result in adverse consequences. In the US leaks and surface spills of dangerous chemicals used in fracking fluids have occurred and where wells have not been properly sealed there has been some migration of gas and chemicals. This is not attributable to any intrinsic operational problem with fracking and has been caused by poor technique and, in the US, until recently a fairly lax regulatory regime, In the UK, we have learnt from the American experience and already have in place a strict regime to ensure that drilling and fracturing can be carried out safely, without risk to health and the environment.
How complex is the legal framework that regulates surrounds fracking?
The process of obtaining consent to drill an oil well is a cumbersome one The department of Energy and Climate Change issue a license that grants exclusivity to operators in the licence area to explore and produce petroleum. Prior to implementation of the Infrastructure act 2015, operators wishing to drill a well must also be granted by the Coal Authority if the well encroaches on coal seams. The operator then needs to seek planning permission from the Local Minerals Planning Authority, and must consult with the Environmental Agency. In the case of hydraulic fracturing, an EIA is mandatory. Environmental permits are also required.
What would you change about this framework if you had the power?
What we currently have in place is a dauntingly complex framework which provides little certainly or practical guidance to operators. There is a need to reduce the complexity and increase the transparency of the regulatory system itself. It should be more accountable and there should be a direct appeals process in the event that an application for planning permission is refused by a Local Authority. The process should be consistent and planning and permit applications should run in parallel. A clear timetable for decisions making should be set in advance so that operators can plan accordingly. A streamlined system should be put in place that is effective as well as rigorous so that the UK will be able to take advantage of the economic opportunity afforded by shale gas,
How drastically has the oil and gas industry changed since you were called to the Bar in 1974?
It has changed dramatically. This country is seeing a significant slowdown from its North Sea oil beds. We have been importing gas since 2004 relying on Norway and the Netherlands. It is a precarious position. In March 2013 this country came within six hours of running out of natural gas entirely (according to a Financial Times report). A third of UK energy demand is met by as and we will use less coal in the next 10-15 years for electricity generation. As we use less coal, gas is needed to fill the gap alongside renewable and nuclear electricity. By 2025 it is expected that the UK will have to import up to 75% of the gas we consume if we do not develop shale.
Have things changed for the better or for the worse?
The shale gas revolution which took place in the US, if it takes place in the UK, will result in the production of an abundance of cheap gas and oil by horizontal drilling and hydraulic fracturing. There is now a real prospect that the UK will be a participant in this revolution. There is great potential for the creation of many new jobs and increased tax revenues. Communities will benefit by payments from access and increased employment. It has been estimated that UK shale gas production would be a huge benefit to the public finances and could attract annual investment of £3.7 billion and support up to 74,000 jobs.
What has been the biggest change to affect planning law in recent years?
A multitude of European Directives, which are often incomprehensible, contradictory and inconsistent with our Common Law tradition an our domestic planning regime.
Is there anything else you would like to add?
We must change the public perception that hydraulic fracturing is unsafe, a risk to health and damaging to the environment. The overwhelming scientific and technical evidence is that this is not the case. There is a need to accelerate decision making timescales both in relation to the planning and regulatory regimes and for responsible and objective decision making based on probative and compelling expert evidence as well as legal principles.