5Shale Environmental Regulator
60.Following commitments in the 2017 Conservative general election manifesto, the Government announced its intention, again in the 2018 WMS, to establish a Shale Environmental Regulator (SER). The Government told us that the SER would bring together the organisations that have a regulatory role in fracking developments to act “as one coherent single face for the public, mineral planning authorities and industry.”111 The Government also clarified that there will be a consultation on whether a standalone regulator is necessary, what it would look like, and, if it is required, whether it will be given additional powers.112
61.The majority of witnesses, including the existing regulators, raised concerns about creating a single regulator. The primary justification for this position was the “dilution of those skills and competencies” of the individual regulators.113 Chris Flint from HSE told us that the relationships between the regulators already “work very well and effectively, and have been proven to do so without creating a separate body … The benefit of us regulating together in the way that we do is that we have expertise that the EA can rely upon and they have expertise that we can rely on, and the same with the OGA”.114 Chris Hesketh from Frack Free Dudleston agreed:
Why we would question the ability of the Environment Agency to look after the environment, or HSE to look after the safety of employees and the people concerned? Those bodies should and do have the ability to look after their areas of expertise. If you create a new body that is independent of those, it is not going to have this depth of experience.115
62.In addition, Tom Wheeler of the OGA expressed concerns about creating a conflict of interest in a single regulator. He told us that “there is good experience that mixing an economic and an environmental regulator without very careful diligence is not a good approach”.116 He cited the findings of the Cullen Report into the 1986 Piper Alpha disaster which concluded that a single body should not be responsible for both production and safety due to an inherent conflict of interest. The Cullen Report resulted in the regulatory responsibility for safety being transferred from the then Department for Energy, which was also responsible for production at the time, to the HSE. The importance of ring-fencing health and safety regulation was also highlighted by the industry representatives that we heard from.117
63.While the Government told us that the consultation will be considering whether the SER “should have any standalone responsibilities”,118 it allayed fears about merging existing regulatory functions. The Government told us that that “there would no transfer of the licensing conditions that sit in the OGA into the regulator”.119 The Secretary of State for Environment, Food and Rural Affairs also recently confirmed that the EA’s powers would not change in relation to shale gas.120 The Government did not explicitly rule out transferring the functions and powers of the HSE but did tell us that “this is not about stripping very highly functioning regulators - HSE and EA, in particular - and putting them into another regulator with a statutory footing”.121
64.Given the existing roles and wider remits of the Oil and Gas Authority, Environment Agency and Health and Safety Executive, a single regulator is inappropriate for the fracking industry. The regulatory roles and powers of the existing regulators should be maintained to protect the independence of the regulatory regime, avoid conflict of interests and ensure regulatory specialisms are maintained.
65.Assuming that the existing regulatory roles are not merged, we heard that a single point of contact for fracking queries would be welcome. Matt Lambert from Cuadrilla told us:
There is a huge amount of misleading information about fracking out there. A single point of contact, independent from the industry, with a level of independence, that the public could trust, who could answer those questions and say, “No. You have heard this—it is not true” or, “Yes, this is true, but here is what happens” and could explain it properly, would be helpful.122
66.Kate Gordon of Friends of the Earth expressed concern about the creation of an SER (see below) but acknowledged that there may be a role for a “signposting body that would support communities”.123 Similarly, Richard Flinton from NYCC suggested that while he saw limited benefits of an SER, “the issue of public understanding of other agencies is clearly a problem” and the creation of an SER may be of limited benefit in that way.124
67.Despite the potential awareness-raising role of a SER, we heard from anti-fracking groups that “this separate regulatory body could all too easily be seen as an offshoot of the industry body”.125 Kia Trainor from CPRE Sussex argued that a multi-agency approach to regulating fracking would be preferable: “instead of another body, which could cause more confusion, we would be looking for better joint working with the existing bodies and more support for them to be able to do it”.126 Kate Gordon from Friends of the Earth supported this view, telling us that “there are perfectly good bodies. The answer is much better joint working between local authorities and the statutory bodies … There needs to be better communication - open and transparent - so everybody knows what is going on”.127 Matt Lambert from Cuadrilla agreed that such an approach “would help make the process move more smoothly for everybody”.128 Cuadrilla’s written submission elaborated:
The benefit of the multi-agency examination meeting(s) would be to bring together the diversity of specialist regulatory knowledge into one or more defined meetings where concerns or further request for information can be discussed openly on a multilateral rather than unilateral basis. This would reduce the risk of regulatory approaches overlapping and enable key technical and regulatory concerns to be discussed at an early stage helping speed up the process and ensuring statutory consultees are up to speed with the development’s key issues.129
68.There is a need to better communicate the purpose and role of the regulatory bodies. We recommend that the Government establish an overarching single point of contact for fracking queries., which should host the “one-stop shop” for fracking guidance and policy documents that we recommend in Chapter 3. The overarching body should encourage multi-agency working between the existing regulatory bodies. We note the Government’s suggestion that the proposed Shale Environmental Regulator would “act as one coherent single face for the public, mineral planning authorities and industry” and acknowledge that a Shale Environmental Regulator could fulfil this role. However, in view of our previous recommendation that the existing regulatory functions should be maintained, the Government should consider renaming and repurposing the proposed Shale Environmental Regulator as the ‘Shale Information and Coordination Service’ in order to avoid further confusion. We also recommend that the overarching point of contact co-opts the planning brokerage system to provide a comprehensive service to Mineral Planning Authorities and applicants as well as the public, pursuant to our recommendation in Chapter 6, and minimise confusion about the role of an additional body in the fracking development process.
120 Topical questions (Department for Environment, Food and Rural Affairs), 7 June 2018.
Published: 5 July 2018