- Regulation of petroleum exploration and development licences (PEDLs)
- Public procurement and open competition for PEDLs
- Environmental permits for managing environmental risks
- Planning applications, public consultation and planning permission
- Health and Safety legislation applicable to onshore gas and oil wells
- Statutory appeals and Judicial Review
- Contractual disputes
- Contaminated land regime and tortious liability for hazardous substances, trespass and nuisance
- Mediation and Arbitration
Shale, Gas & Oil
The 36 Shale Gas & Oil law team have over 30 years experience of planning applications, statutory appeals, judicial review of regulatory regimes and commercial disputes. Members of the team have been involved in some complex and important judicial review and commercial appeals in the higher courts in recent years, all the way to the Supreme Court.
We provide legal advice, assistance and representation on the law and regulations relating to the exploration and extraction of onshore shale gas and oil in the United Kingdom.
Members of team are experienced in acting for corporate clients, local authorities, public bodies, landowners, homeowners and community groups.
Legal and regulatory framework
Shale Gas and Oil law is the legal framework that regulates exploration, drilling, transportation, commercial transactions and commercial delivery of shale gas and oil.
Onshore shale gas and oil is extracted by hydraulic fracturing (or “fracking”). This process involves the injection of a fluid mixture (water, chemicals and sand or small beads) into sedimentary rock at high pressure at well depths several thousand feet below ground.
The legal and regulatory framework has developed with different, and sometimes conflicting, interests and objectives.
These interests and objectives include:
- The commercial extraction and delivery of shale gas and oil;
- The fundamental safeguarding of the health and comfort of communities and the general public, of employees in the sector, landowners their land and livestock and householders in the vicinity of wells or related surface operations;
- The UK Government’s long-term climate change energy policy on CO2 omissions and the continued use of carbon-fossil fuels (particularly gas), but as part of a transition to a cleaner energy economy dominated by “renewables” (e.g. wind, wave, marine, hydro, biomass and solar etc.).
Advice and assistance on regulatory matters
Issues requiring legal advice and assistance may arise for individuals, companies or regulatory bodies at any stage of several different and quite complex regulatory processes. These include, but are not limited to:
Permitting and planning regulations before operations
- The Oil and Gas Authority (OGA) award of exclusive licences for exploration of shale gas and oil after open competition. OGA is a newly created Executive Agency of the Department of Energy and Climate Change (DECC).
- Environmental Permits from the Environment Agency in England and Wales (EA) and the Scottish Environmental Protection Agency (SEPA) for groundwater extraction, handling of mining waste and naturally occurring radioactive materials, surface and groundwater discharge facilities.
- Minerals Planning Authorities (MPA) and the grant or refusal of planning applications and imposition of planning conditions, following public consultation.
- Health and Safety Executive (HSE) scrutiny before operations on well design and construction and independent verification (“well integrity”) and on safety of drilling operations
- Grant or refusal of well consent by the DECC
On-going regulation during operations and after abandonment of site
- Health and Safety Executive (HSE) and proper management by the site operator of health and safety risks and compliance with the relevant health and safety legislation
- Environment agencies (EA or SEPA) and proper management of environmental risks and compliance with permits by operators.
- Minerals Planning Authority (MPA) and compliance by operators with planning conditions (chemicals injection, disclosure of constituents of fracturing fluid, ensuring chemical additives non-hazardous mitigates effect of any spillages, spills from trucks, blowout protectors etc.)
Appeals and/or Judicial Review
Decisions of regulatory bodies may be subject to statutory appeal and/or a claim for judicial review in the Administrative Court.
We are able to advise, assist and represent clients on statutory appeals and/or claims for Judicial Review in respect of decisions on the grant, refusal, or imposition of conditions relating to:
- Petroleum Exploration Development Licences (DECC)
- Environmental Permits (Environment Agency)
- Planning permission (Mineral Planning Authority)
- Well consent (DECC)
- During operations: compliance with health and safety legislation (HSE), proper management of environmental risks (EA) and compliance with planning conditions (MPA).For more information on our Commercial Judicial Review work which is concerned with challenges to decisions to industry or sector regulators. Click Here
Contractual disputes may also arise between operators in the shale gas and oil sector and other commercial entities or investors.
We are able to provide legal advice and representation on commercial disputes, which may concern:
- Joint ventures between commercial operators, including local UK entities and foreign investors
- Production sharing agreements
- Service contracts
- Sale or supply of goods or services
- Transportation agreements
On general commercial disputes our colleagues in 36 Commercial, a specialist commercial law team, may be able to provide further assistance. For further information see 36 Commercial
We are able to assist potential claimants or defendants where issues arise as to whether operators have allowed hazardous substances to escape and contaminate (pollute) adjoining land or water or air.
There may also be claims for trespass and damage where access rights from landowners have not been acquired before the siting of a well and commencement of drilling operations.
Nuisance claims (noise, pollution, dust, traffic etc.) may arise as a result of on-going operations.
We can also provide expert legal advice and representation (for prosecution or defence) in the event of any Health and Safety Executive investigations that lead to criminal prosecution.
On prosecutions arising more generally out of operations in the shale gas and oil sector, our colleagues in our specialist criminal law practice group 36 Crime may be able to assist. For further information, see 36 Crime
Alternative Dispute Resolution
The grant or refusal of licences for the exploration of shale gas, environmental permits or planning permission has proved controversial on occasion, and has led to legal challenge.
The 36 Group has a panel of accredited mediators and arbitrators ready and able to assist parties settle a dispute, without the need or expense of resort to the courts.
A dispute settled by mediation or arbitration will often prove more economical for all sides, than a heavily contested case in the courts.
For further information, see 36 Alternative Dispute Resolution