Fracking in a SSSI
As ever, the rhetoric and reality are somewhat mismatched when it comes to fracking. This time, it’s about fracking in designated Sites of Special Scientific Interest (SSSIs).
Recently, the Government laid draft Regulations before Parliament that are aimed at providing further clarity to the scope of fracking protections included in the Infrastructure Act, which gained Royal Assent back in February 2015.
Environmental campaigners, including Friends of the Earth and Brighton MP Caroline Lucas, have criticised the move, claiming that the Government is guilty of a u-turn that will lead to widespread fracking in Britain’s most protected wildlife sites.
Firstly, it’s not exactly a u-turn at all
In January this year, during the final debate on the Infrastructure Bill, a group of MPs triggered a vote on the introduction of a fracking moratorium. Opposition Labour MPs threatened to vote in favour of the moratorium unless the Government agreed to certain concessions – including a ban on fracking within a Site of Special Scientific Interest (SSSI). The Government caved in to the pressure, and, at the vote, Labour MPs mostly abstained – helping to defeat the motion.
Recent reports have focused on the draft Regulations put before Parliament ahead of the summer recess, and suggest that these now unpick the commitment made in January. But that’s not strictly true.
In fact, a number of additional changes were made to the Bill just before it was enacted.
Among them is a requirement to modify the Petroleum Act 1988 such that the Secretary of State cannot give consent for hydraulic fracturing to take place unless satisfied that certain conditions have been met.
One of those conditions is that “associated hydraulic fracturing” will not take place within “other protected areas” and that, in order for the Secretary of State to be satisfied the condition is met, a notice must be provided by the local planning authority that the area in respect of which relevant planning permission has been granted does not include any land which is within any other protected areas.
The Act doesn’t define what is meant by other protected areas.
It certainly does not say that a SSSI, National Park or Area of Outstanding Natural Beauty (AONB) is or is not to be included within such a definition. What it does say is that the Secretary of State must, by Regulations made by statutory instrument, specify the descriptions of areas which are “protected groundwater source areas” and the descriptions of areas which are “other protected areas.”
This is what the draft Regulations are intended to do.
So, if there has been a u-turn, it wasn’t brought about by these draft Regulations, it occurred back in February.
Not all SSSI are created equal
Much has been said about protecting the important wildlife sites that are designated as SSSIs, implying that fracking within those sites will put that wildlife at risk and that is why there needs to be a blanket ban.
That may be true in some cases, but not all SSSIs have the designation because of a need to protect wildlife. In many cases, it’s about preserving the geological record.
Take the Ravenhead Brickworks site in Lancashire for example, next to an active quarry.
It has its designation because ‘it is a nationally important geological site for the exposures of the Late Carboniferous, Westphalian succession within this part of the Pennine Basin; lying between the Honley and Parkhouse Marine Bands. The sequence includes both marine and non-marine strata and demonstrates the patterns of deposition in a lower delta-plain setting at this time.’
It doesn’t seem reasonable to ban fracking in a former quarry, itself a remnant of an extractive process, provided that doing so wouldn’t in any way compromise the integrity of the location such that its geological importance was degraded.
There are 4,129 designated SSSIs in England. Of these, over 1,270 are designated for their geological not biological importance.
That’s why a blanket ban isn’t appropriate and it’s also why it’s wrong for journalists and other commentators to try and portray this as an assault on the protection of wildlife and biodiversity.
SSSI are already heavily protected
Shale gas exploration sites require several different yet interrelated permits and approvals before drilling or hydraulic fracturing can commence.
This includes planning permission and an environmental permit issued by the Environment Agency.
The Agency’s guidance on developments that require both planning permission and environmental permits states:
‘Although separate to the Habitats Regulations, we must also assess whether a proposal is compatible with furthering the conservation and enhancement of the special interest of a Site of Special Scientific Interest (SSSI). This is so we can meet our statutory nature conservation duties, including those under The Countryside & Rights of Way Act (2000). Our assessment will follow a similar process; a screening approach followed by more detailed assessment of those developments that are not screened out. We will liaise with the planning authority and Natural England to agree which issues relate to the permit application and which relate to the planning application to avoid overlap and duplication of roles. Where possible, we will also promote joint or simultaneous assessment of impacts on a SSSI or other nature conservation sites and species, using the same information and covering all aspects of the project or development.’
DEFRA guidance on SSSIs states that ‘Local authorities should include policies for the protection and, where appropriate, enhancement of SSSIs in their Local Plans. Every public body should take full account of its duty (to take reasonable steps, consistent with the proper exercise of its functions, to further the conservation and enhancement of the special features on an SSSI) whenever actions may affect SSSIs. In issuing consents on or affecting the special interests of SSSIs, public bodies must have full regard to the duty and consult English Nature (now Natural England) before issuing any consent that may affect the special interest.’ This is further underpinned by Planning Policy Statement No.9
And the 1999 Environmental Impact Assessment (EIA) Regulations (as amended) require assessments to be made for certain types of project before they can be given development consent. Projects fall under two lists: Schedule 1 where EIA is required in all cases and Schedule 2, where EIA is required if there are likely to be significant effects on the environment. Thresholds and criteria are applied to Schedule 2 projects that exclude smaller projects from the need to be screened for EIA. SSSIs, however, are designated as ‘sensitive areas’ under the Regulations and all Schedule 2 development in or partially in an SSSI must be screened for the need for EIA. This also extends to any consultation area around an SSSI, where this has been notified to the local planning authority under article 10(u)(ii) of the GDPO 1995.
In truth, drilling and fracking within SSSIs is unlikely
As you can see, SSSIs and other protected areas are already subject to a whole raft of regulatory safeguards which, in reality, make shale gas extraction unlikely in most cases.
There will no doubt be some exceptions, where it can be demonstrated by screening and risk assessment that such activities pose no significant risk to designated sites and therefore shale gas exploration and future extraction may proceed safely.
But that’s likely to be very much the exception and not the rule.