Court win for anti-frackers

Judge throws out environmental protection regulations put in place by mining minister

IN an important victory for the anti-fracking lobby, the Grahamstown High Court has declared that the environmental protection regulations formulated by the mining minister were invalid and illegal.

In “the most measurable victory yet” for the 400 Karoo landowners represented by 16 individuals and organisations who brought the application, Judge Gerald Bloem set aside the minister’s formulation of the regulations, which should by law have been formulated by the environment minister.

He instructed that the regulations should be reconsidered, and ordered the respondent, the minister of mineral resources, to pay the applicants’ costs.

“It’s not the end of the whole debate,” attorney Derek Light, for the landowners, said yesterday.

“But it goes a long way to ensuring the proper controls and regulations that we have been fighting for.”

The landowners have challenged the fracking applications by Bundu, Falcon and Shell on several fronts, calling for a swathe of studies including on environmental impact and agri-job loss concerns, the volume of gas available and a cost-benefit analysis on whether there is a need to frack.

They also seek to ensure proper regulations are in place if fracking goes ahead and the court case is part of that process.

In terms of a recommendation in the 2012 inter-governmental report on fracking, the government had to “augment regulations” to cater for the industry if it was given the go-ahead.

The cabinet endorsed the recommendation and mandated ministers to work together to achieve this task.

Instead of all the ministers working together on the cabinet mandate, however, the mineral resources minister took over the process, and in 2015 he presented the regulations he had formulated.

This was nearly a year after the key One Environmental System amendment to environmental law in terms of mining projects, which stipulated that the mining minister should preside only over core mining competencies.

The regulations developed by the mining minister – on aspects including the environmental impact assessment to be commissioned by the mine applicant, the risk of seismicity, protection of water resources, permitted drilling and fracturing fluids and how to contain them and fugitive emissions – all relate directly or indirectly to the environment.

“In my view the respondent did not have the authority to make the petroleum regulations which deal with [these] matters,” Bloem said. “The environmental affairs minister should set the regulatory frame work and norms and standards, and the minister of mineral resources should implement the regulations as far as they relate to . . . prospecting, exploration and production.”

Light said his clients were happy because a full public participation process would now have to be launched around the reconsideration of the regulations.

In line with the lack of transparency and validity in the formulation for the regulations so far, a list of the controversial fracking fluids had been drawn up by the department without consulting landowners, and this was procedurally unfair, he said.

Bloem noted that mining acting director-general David Msiza had not rejected the contention that these fluids were dangerous.

The department could not be reached for comment.

The respondent did not have the authority to make the [controls]