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Fracking – The Legal Standpoint

Hydraulic fracturing, or ‘fracking’ as it is more commonly known, is a method used to extract gas from shale rock formations deep underground. It involves drilling 6-10,000 feet under the ground, then drilling sideways to bore 2-3,000 feet horizontally. Water, sand and chemicals are then injected into the boreholes at high pressure to create fissures in the shale rock and keep the holes open, clean and free from bacteria. The fissures allow the gas in the shale rock to escape back up the boreholes and be collected for use.

The method is controversial as environmentalist groups fear the toxic chemicals being pumped into the ground when fracking could potentially contaminate underground water supplies. Fracking exploration and extraction leads to higher emissions of carbon dioxide and methane compared to more conventional gas extraction methods, contributing to greenhouse gas pollution. The Department of Energy and Climate Change published a report in April 2012 which confirmed that fracking causes earthquakes and had done on two occasions in Blackpool in the Spring of 2011.

As fracking includes drilling horizontally deep underground, land may be potentially fracked without the knowledge or permission of the landowner. Greenpeace have started a ‘not for shale’ campaign where landowners of areas which have been earmarked for shale gas exploration can sign up to declare that fracking may not occur on the land underneath their home.

The Petroleum (Production) Act 1934 provided that any petroleum deposits (including shale gas) below land in Great Britain belong to the Crown. However, case law has confirmed that failure to obtain the consent of the landowner could mean that any drilling under their land is a trespass. If the drilling does not affect the landowner’s use or enjoyment of the land, an injunction will not be granted and only limited damages will be awarded for the trespass.

In order to avoid trespassing on land, fracking operators will seek the consent of any landowners prior to carrying out any drilling. However, if the landowners are too numerous or have conflicting interests, cannot be ascertained/found or unreasonably refuse to grant the rights or demand terms which are unreasonable, the fracking operators may make an application to the Secretary of State, who will refer the case to the High Court, who may grant the rights to drill without the landowner’s permission (section 7 Petroleum Act 1998).

Therefore any ‘legal block’ created by environmentalist groups may initially delay the development of a fracking site, but as the rights to drill may be granted by the court without the landowner’s permission, it is unlikely to prevent fracking in the long term.

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