Shock for Minister as court sets aside gas fracking rules
Extraction methods ‘could damage the environment’
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.”