By Lucy Crabtree
Hydraulic Fracturing or ‘fracking’ is no stranger to criticism from the media and
environmentalists. But how are the government seeking to align the law with the
dramatically shifting public opinion against it? According to UK common law, there have been no successful cases of a company being held liable for earthquake-related damages as a result of fracking. This is particularly strange when you consider the Ryland v Fletcher doctrine: ‘the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.’
The case of Ryland relates to the improper storage of water which caused damage to neighbouring properties so, in theory, this tort principle should easily extend to the toxic water stored underground by frackers. However, the courts have repeatedly made policy decisions to not find public bodies liable for the damage to local property, the most recent case being R. (on the application of Friends of the Earth Ltd) v Environment Agency (2019). This could be the UK’s attempt to reduce the importation of shale gas from Russia by setting up their own fracking sites, or, perhaps, as a source of income in increasingly unsteady economic times leading up to Brexit. Speculation aside, a House of Commons briefing paper, released 31st March 2020, declared that the Government established a ‘moratorium’ on fracking in Lancashire.
This is due to Cuadrilla resuming drilling in Lancashire in 2019, causing a 2.9 seismic event. Yet, this is not the only moratorium the government has issued. Back in 2011, Cuadrilla was also forced to stop its drilling in Lancashire due to a 2.3 seismic event. The ‘Traffic Light System’ was established, along with provisions set out in Part 6 of the Infrastructure Act 2015. Given the increased magnitude of seismic events between the years 2011-2019, the provisions set in place are clearly inadequate for ensuring the safety of the locals to the fracking site. The hope of further regulation beyond simply pausing fracking was noted in Emma Howard Boyd’s speech, ‘The future for environmental standards in the UK’. In February 2020, as the Chair of the Environment Agency, she spoke of being “tough on those who break the rules, damage the environment” and raised concerns regarding sanitary water in the upcoming Environmental Bill of 2020. This would be the perfect place to tighten or even prohibit the practice of fracking in England. However, no reference to this has been made in the most recent bill. The government needs to take decisive action against fracking, beyond moratoriums, given the harsh policy decisions in the civil court, and the inadequate safeguards in place.