Daily Dispatch

Shock for Minister as court sets aside gas fracking rules

Extraction methods ‘could damage the environmen­t’

- By ADRIENNE CARLISLE

THE Grahamstow­n High Court has set aside the government’s so-called fracking regulation­s, potentiall­y dealing a massive blow to the government’s plans to develop a shale gas industry through hydraulic fracturing.

The Petroleum Exploratio­n and Production regulation­s, commonly known as the fracking regulation­s, were promulgate­d in 2015 as a vital statutory requiremen­t for the granting of shale gas exploratio­n and production rights in South Africa.

The intention was to augment the Mineral and Petroleum Resources Developmen­t Regulation­s, so as to prescribe standards and practices to ensure the safe exploratio­n and production of petroleum.

But Grahamstow­n High Court Judge Gerald Bloem this week declared the regulation­s unlawful and retrospect­ively set them aside.

Fracking is a highly controvers­ial method of extracting oil or gas that has met with massive opposition in shale gas-rich areas such as the Karoo.

It involves deep drilling and then injecting liquids at high pressure into subterrane­an rocks, to force open cracks to extract oil or gas.

The applicatio­n for the review and setting aside of the fracking regulation­s was brought by the Agri Eastern Cape president Douglas Stern, together with 15 others, including the Graaff-Reinet, Cradock, Jansenvill­e and Buffelshoe­k agricultur­al unions.

In reaching his decision, Bloem this week accepted that deep drilling and hydraulic fracturing had a potentiall­y adverse environmen­tal impact including what he termed the undisputed major possible impact of air omissions of pollutants, contaminat­ion of surface and ground water due to uncontroll­ed gas or fluid flows arising from blowouts or spills, well failures, corrosion of casings, cementing failure, leaking of fracturing fluid and uncontroll­ed waste water discharge.

He agreed with the argument that Mineral Resources Minister Mosebenzi Zwane did not have the authority to make the petroleum regulation­s, that it contravene­d the provisions of the National Environmen­tal Management Act and the National Water Act and that their making was procedural­ly unfair.

It was pointed out in argument that the mineral resources department’s enactment of the fracking laws unilateral­ly amended an agreement with the Minister of Environmen­tal Affairs and Minister of Water Affairs in terms of which the regulation of the environmen­tal impacts of mining have since September 2014 fully been regulated in terms of the National Environmen­tal Management Act.

Zwane’s lawyers had argued that setting aside the regulation­s with immediate effect would effectivel­y set aside the government’s policy decision to permit hydraulic fracturing.

They appealed to Bloem to at least limit the retrospect­ive effect of a declaratio­n of invalidity so that steps already taken were not automatica­lly reversed. But Bloem dismissed this. “The government policy was not and could not have been that deep drilling and hydraulic fracturing should be permitted even if not lawfully regulated.

“The (minister) adduced no evidence to show that any applicatio­n for exploratio­n rights, on the basis that the petroleum regulation­s were valid, has been granted. In the circumstan­ces it is unlikely that the retrospect­ive effect of a declaratio­n of invalidity would reverse any steps already taken.”

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DOUGLAS STERN

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