The Infrastructure Act 2015 and some of what it means

The Infrastructure Bill was one of the largest and most complex pieces of legislation ever to progress through the British legal system.  It gained Royal Assent last month and is now the Infrastructure Act 2015.  Groups opposed to shale gas extraction have expressed concerns about some of its provisions – are they right to be worried?


The particular sections of the Infrastructure Act that have everybody excited are 43 – petroleum and geothermal energy: right to use deep-level land; and 44 – further provision about right of use.

Of the provisions that apply to the use of deep-level land, it is the reference to “passing any substance through, or putting any substance into, deep-level land or infrastructure installed in deep-level land” that has received most of the focus, and it is being suggested that this will in future allow depleted shale gas wells to be used as permanent geological disposal facilities for high level radioactive waste from the nuclear industry, for instance.

At the same time, people point to the Infrastructure Planning (Radioactive Waste Geological Disposal Facilities) Order 2015 that refers to “boreholes” in connection with the permanent disposal of radioactive waste, and draw the conclusion that this is somehow linked to the Infrastructure Act provisions and proof that shale gas wells may one day be repurposed for this use.

Others claim that the section 44 rights are a precursor to the use of deep injection wells for the disposal of shale gas wastewater – a process commonly used in the US but that has been linked to an increase in seismic activity over the years.

So, should we be worried?

There are several reasons why we don’t think so.


What does the Infrastructure Act actually say?

All legislation is open to some degree of interpretation, but on the rights to the use of deep-level land, the Infrastructure Act 2015 is clear.  It says:

44 (2)The purposes for which the right of use may be exercised include—

(a)searching for petroleum or deep geothermal energy;

(b)assessing the feasibility of exploiting petroleum or deep geothermal energy;

(c)preparing for exploiting petroleum or deep geothermal energy;

(d)decommissioning, and other activity which falls to be continued or undertaken, in consequence of activities undertaken for the purposes of exploiting petroleum or deep geothermal energy.

There is no ambiguity here: the right to use deep-level land is restricted to the listed activities.  Nowhere does it say that deep-level land can be used for disposal purposes – regardless of what the waste may be.  There is certainly no way that the disposal of radioactive waste from nuclear power generation could ever be construed as falling within this provision 44 (2).

Some might say that the wording of 44 (2) (a) is sufficiently vague to allow – when read in the context of provision 44 (1) (d) “passing any substance through, or putting any substance into, deep-level land or infrastructure installed in deep-level land” – the disposal of shale gas wastewater into deep-level land.  But again, this is not possible.  In a case heard before the European Court of Appeal in 2003, the underground deposit of waste (other than produced waters) in depleted oil fields was ruled to fall within the definition of landfill – and, since 2001, the landfill disposal of liquid wastes has been banned throughout Europe, and here in England and Wales via the Landfill Regulations (England and Wales) 2002 as you can see here:

Prohibition of acceptance of certain wastes at landfills

9.—(1) The operator of a landfill shall not accept any of the following types of waste at the landfill—

(a)any waste in liquid form (including waste waters but excluding sludge)

The Infrastructure Act 2015 doesn’t change this.  If it did, it would contain specific references explaining these changes, but there are no such references in the consequential amendments section.

And then there is this provision:

(4)The right of use—

(a)does not give a person (“R”) any power which is greater than, or different from, the power which R would have had if the right had been granted by a person legally entitled to grant it; and

(b)does not relieve a person (“R”) from any obligation or liability to which R would have been subject if the right had been granted by a person legally entitled to grant it.

It may not be entirely clear on first reading, but what 44 (4) is saying is that, regardless of the right of use to deep-level land conveyed by the Infrastructure Act, a person (or organisation) wishing to make use of such right is still bound to obtain all other necessary rights, authorisations and permissions such as planning permission and an environmental permit.

It is simply not possible to obtain an environmental permit to operate a landfill that accepts liquid waste.


What about the Infrastructure Planning (Radioactive Waste Geological Disposal Facilities) Order 2015?

Again, it’s important to actually understand what this is.

Currently, it is simply a draft and therefore has no legal status.  If it does go on to become a Statutory Instrument, it has nothing at all to do with shale gas and the use of depleted wells for radioactive waste disposal.

This draft Order would simply amend the Planning Act 2008 by allowing organisations to drill boreholes – for the purposes of testing the geology in selected locations, to see if it might one day be suitable for the excavation and construction of a permanent repository for the disposal of radioactive waste – but without having to apply for planning permission in order to drill those boreholes.

You can see it here for yourself on 30A (5) (b)

(5) The conditions are that—

(b)the main purpose of constructing the borehole is to obtain information, data or samples to determine the suitability of a site for the construction or use of a radioactive waste geological disposal facility.

So, not only is this a draft Order, it clearly has no connection to onshore oil and gas.


Spin overcoming science in fracking

In this article in The Scotsman, the chief executive of Weir Group, Keith Cochrane, said: “I’m afraid as I look at the recent debate unfold in Scotland in particular, I think the spinners are beating the scientists and we should all regret that.”

Concerns that are circulated about the provisions of the Infrastructure Act may not be spin; they might be genuine, raised by people that are unfamiliar with British legal texts and the plethora of other legislation that governs how we regulate our interactions with the environment.

Whatever the cause, the facts are indisputable: neither the Infrastructure Act 2015, nor the many other European directives and British environmental laws that exist to protect us, are paving the way for depleted onshore oil and gas wells to become disposal facilities for waste of any kind.

Do you disagree?  We’d be happy to hear your views, please use the comment function below.