Infrastructure Bill [HL]

Written evidence submitted by Dr Janet Moxley (IB 31)

1) Introduction

1.1 I hold a doctorate in environmental science and have professional experience of ground water monitoring, climate change issues and environmental regulation. I have concerns about the provisions in clauses 36 to 43 of the Bill particularly with regard to how the might affect the UK Government's obligations to reduce emissions of greenhouse gases.

1.2 I also have concerns about how clauses 39 of the Bill fits with obligations to protect groundwater condition.

1.3 Finally, as a resident of Scotland I am concerned about how some of the Bill's provisions sit with policy areas which are currently devolved to the Scottish Government and those which the Smith Commission report (1) proposes should be devolved.

2) Climate change and unconventional gas extraction.

2.1 Clause 36 creates a duty for the UK Government to maximise economic recovery of oil and gas. This continues reliance on fossil fuels, and completely undermines the national and international obligations under the UK Climate Change Act (2008) and under international treaties including the Kyoto Protocol, the United Nations Committee on Climate Change reporting mechanism and the European Union Monitoring Mechanism to reduce emissions of greenhouses.

2.2 The Stern review on the Economics of Climate Change showed that the cost of adaption to changing climate resulting from continuing "Business as Usual" emissions of greenhouse gases will be more than the cost of emissions reduction. Any short term economic benefit gain from unconventional gas extraction will be outweighed by the long term costs of dealing with the effects of the change in climate caused by emissions of carbon dioxide when burning the gas and leaks of methane from the gas extraction process.

2.3 Experience in other countries who have exploited unconventional gas extraction suggest that there is a high rate of failure of well casings at coalbed methane and shale gas extraction sites even when best practice is followed. Recently NASA detected a huge methane cloud across the SW United States which it attributed to leaks from gas production sites (3). As methane 25 times more potent than carbon dioxide such emissions could several impact on the UK's ability to meet its greenhouse gas emissions targets as well as being very damaging to the environment. I therefore suggest that this clause is deleted from the Bill in order to protect the UK economy and the global environment.

3) Water Protection and unconventional gas extraction
3.1 Clause 39 subsections (d) and (e) of the Bill give a right to the holders of gas extraction licences to allow passing any substance through, or putting any substance into, deep-level land and keeping, using or removing any substance put into deep-level land. These provisions could change the level and composition of water in deep-level land, and if failures in borehole construction occur, as they have frequently done elsewhere could lead to contamination for groundwater aquifers closer to the surface.

3.2 The Water Framework Directive (EU Directive 2000/60/EC) requires EU member states to prevent a deterioration in groundwater condition. Activity which leads to a deterioration in either the chemical quality or level of groundwater would be contrary to the Water Framework Directive, and the UK could become the subject of infraction proceedings by the EU if it permitted such activity. I therefore suggest that Clause 39 is removed from the Bill.

4) Application of Clauses 38 and 39 in Scotland

4.1 Clauses 38 and 39 of the Bill make provision for access, use and modification of deep level land for the purposes of oil and gas extraction without the need to inform or gain permission from the owners of the overlying land. This is in effect a change to the trespass laws. However, laws relating to trespass and access to land in Scotland are devolved.

4.2 I question how the provisions of these clauses can be reconciled with Scots' law on trespass and the powers of the Scottish Parliament over this. Perhaps the UK Government feels that the reserved powers which it holds over energy policy trump the Scottish Government's devolved power over the trespass laws. However in the preamble to the Smith Commission report Lord Smith comments that measures need to be put in place to address the issue of weak inter-governmental working in order to create a more productive, robust, visible and transparent relationship. There is considerable opposition to unconventional gas extraction in central Scotland, and the UK government forcing through legislation to change powers which are devolved using powers which are reserved hardly seems a good way to develop the improved intergovernmental relationship which Lord Smith seeks to foster.

3.3 Furthermore Section 70 of the Smith Commission Report states that "Responsibility for mineral access rights for underground onshore extraction of oil and gas in Scotland will be devolved to the Scottish Parliament." Given this stated intention to devolve these powers it would be totally against the spirit of the Smith Commission for the UK Parliament to pass an act which pre-empts implementation of the Smith Commission recommendations by pushing through rights for developers to access and exploit oil and gas in deep level land prior to this area being devolved to Holyrood as intended.

3.4 In view of the current and proposed devolved powers of the Scottish Government in relation to activities involved in Clauses 38 and 39 of the Bill, I suggest that these clauses should not be applicable in Scotland.

January 2015


1) Report of the Smith Commission for the further devolution of powers to the Scottish Parliament, Nov 2014.

2) Stern Review: The economics of climate change (2010).

3) Four Corners: The largest US methane anomaly viewed from space. Geophysical Research Letters, Volume 41, Issue 19, Pages 6898–6903, Oct 2014.

Prepared 13th January 2015