Fracking and the Church of England

The prospect of a debate on environmental issues by General Synod on Wednesday 12 February prompted a thought-provoking post by Gillan Scott The Church of England mustn’t waste this opportunity to address the ravages of climate change, and an exchange of comments some of which suggested that the Church of England should “vigorously and vocally opposes fracking (hydraulic fracturing)”.  The initial foray into this area by the Diocese of Blackburn demonstrated the difficulties of engaging in contentious areas such as this.  Whilst the leaflet produced by the diocese provided a good overview of this emerging technology, its portrayal of some of the alleged environmental concerns did not stand close scrutiny, and its use of emotive language strayed from the impartiality necessary within such a document. Our post Fracking, the Facts and the Church concluded with the suggestion that in view of the heightened profile of fracking within the national and international media, the Church of England should give urgent thought to the development of an agreed position on fracking.

Interest in fracking was further escalated by: the high-profile protests in Balcombe, West Sussex; the Royal Society for the Protection of Birds, (RSPB), announcing its opposition to fracking at a site in Lancashire; and media confusion on the Church’s Mineral Registration Programme This resulted in the publication of two statements by the Church:  a Clarification on suggested links with hydraulic fracturing or ” fracking”; and a Statement from Church of England on fracking

The Statement on fracking was made by Philip Fletcher, Chair of the Church of England’s group on Mission and Public Affairs, and referred to earlier statements by the Diocese of Blackburn and from the Bishop of Chichester It envisaged the role of the Church

“[a]s with much of wider society [it] will continue debating the issue around fracking, seeking to balance theological, economic, environmental and societal issues.

Significantly, however, it stated that

“[the Church of England] has no official policy either for or against hydraulic fracturing (known as ‘fracking’). However there is a danger of viewing fracking through a single issue lens and ignoring the wider considerations.

Although satisfactory as a “holding” statement, events have moved on. In January 2014 the BBC reported that companies at the forefront of the UK’s shale gas industry are planning a “substantial” expansion in the number of drilling sites, and Energy minister Michael Fallon anticipates up to 40 shale gas sites to be drilled in England over next two years. Consequently there is now strong governmental pressure to remove legal obstacles currently preventing energy companies exploiting the technology.

Legal Issues

Whilst landowners may not own the title to sub-surface minerals, they may currently prevent energy firms from accessing these minerals under their land through the law of trespass. In his article Fracking – “not under my backyard!” Ben Du Feu analyses the legal issues and the Supreme Court’s clarification of the law on trespass for sub-surface horizontal drilling. In Star Energy Weald Basin Limited and another v Bocardo SA, which concerned drilling for petroleum in the wells that extended from about 800 feet to 2,800 feet below the surface  Lord Hope delivered the court’s unanimous decision that:

– “the owner of the surface is the owner of the strata beneath it, including the minerals that are to be found there, unless there has been an alienation of them by a conveyance, at common law or by statute to someone else,” [para.27];

– “the paper title owner to the strata and all within it (other than any gold, silver, saltpetre, coal and petroleum which belong to the Crown at common law or by statute), has the prima facie right to possession of those strata so as to be deemed to be in factual possession of them., [para 31]; and

– Since the right to search and drill was obtained by the respondents under licence from the Crown, there is no common law defence against a claim of trespass by a landowner who was not party to that arrangement, and the relevant statutory provisions do not provide a defence to a landowner’s trespass claim [paras. 32 to 36].

Du Feu notes

“these principles apply regardless of whether any harm is caused to the estate, or use or enjoyment of the land is interfered with … any objection by the landowner would be enough to prevent drilling from taking place under their land, without applying to the court under the Mines (Working Facilities and Support) Act 1966. To succeed, the fracking company making the application would have to demonstrate, amongst other things, that the grant is expedient in the national interest.

DECC is reported to be reviewing the planning process related to fracking operations to determine whether this is “fit for purpose”, and du Feu suggests that the options open to the government might include: a form of compulsory purchase, with mandatory (if nominal) compensation; or  a relaxation of the application process laid out in the Mines (Working Facilities and Support) Act 1966.

Comment

The development of a position and policy on fracking is a now a priority for the Church in view of: the potential impact of exploration and extraction operations on a number of parishes; the need to inform local groups, in the light of the growing opposition to the process; and the expected DECC consultation paper. It also has an important role to play as a significant landowner, and during the passage of any proposed legislation through the parliamentary process.

6 thoughts on “Fracking and the Church of England

  1. It is vital that the church provides some accurate guidance on fracking. To put it as gently as possible the two papers on fracking on the Diocese of Blackburn’s website are woefully inaccurate and need to be removed and corrected. It does seem that far to many in the CofE have jumped on the anti-fracking bandwagon and are happy to repeat the inaccuracies peddled by anti-fracking scaremongers. A reason for this is that few have the technical skills to grasp the whole process of hydrocarbon extraction , whether conventional or fracking.
    As someone who has worked many years ago in mineral extraction, I am pulling together a paper of fracking, using technical reports rather than journalistic hype. It is not an easy task due to the diversity and , at times, opposing views. However I have come to the conclusion that fracking is as safe as any other industrial process and that the gas will both help the energy situation in Britain and reduce our dependency on the worst fuel of all – coal.

  2. Dear Michael

    Thank you for your comments, which I read in conjunction with your blog All Gas and Gaiters, but no Gas. I come to this issue with a background of involvement in environmental issues since the early 1990s, most recently in relation to the achievement of mandatory process and CO2 emissions targets in a major process industry, and a regular column in Environmental Law and Management which I have written since 2001.

    Whilst I would dispute that “the Church has not had a long tradition in caring for the environment and was a johnny-come-lately to green concerns,” I agree that an important issue for the Church of England is the need for a professional approach to the analysis of climate change and environmental issues. I would also add that to progress the environmental agenda there is a need for the establishment of SMART targets, and for strong management to ensure that these are delivered throughout the organization.

    I do not have any particular technical expertise in hydraulic fracturing per se and therefore could not comment on its merits and drawbacks. However, for an impartial overview I would initially look to the Royal Society and Royal Academy of Engineering joint report “Shale gas extraction in the UK: a review of hydraulic fracturing”, Chris Smith’s review of possible future options for energy production including fracking which we published in ELM, and the Commons Library Standard Note, SN/SC/6073 Shale gas and fracking, which contains a number of links to other reviews and sources of information.

    I would be interested to see your proposed paper.

    David

  3. Dear David

    We ARE singing from the same sheet and I have been using those sources, but worked out my ideas before they were available . I would agree with almost all of them as they take a very wise position as does Chris Smith’s lecture which I had not seen. This is the type of material the church needs to be dealing with instead of superficial, and dare I say, naïve environmentalism. As Smith said there have been great strides in recent years.

    Michael

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