Public Consultation on UGEE - Web viewPublic Consultation on UGEE. ... (email or email attachment in MS Word or equivalent). ... Shale gas is usually exploited through a method known

AN COMHCHOISTE UM

CHUMARSÁID, GNÍOMHÚ AR SON NA HAERÁIDE

AGUS COMHSHAOL

JOINT COMMITTEE ON

COMMUNICATIONS, CLIMATE ACTION

AND ENVIRONMENT

DRAFT PUBLIC CONSULTATION

ON THE

PROHIBITION OF THE EXPLORATION AND EXTRACTION

OF ONSHORE PETROLEUM BILL 2016

AND

THE EPA LED JOINT RESEARCH PROGRAMME

ON THE IMPACTS OF

HYDRAULIC FRACTURING

ON THE

ENVIRONMENT AND HUMAN HEALTH 2016

REVISED CLOSING DATE: FRIDAY 10 FEBRUARY 2017

Monday 30 January 2017

Public Consultation on UGEE

TABLE OF CONTENTS

1. Introduction.....................................................................................................................................4

1.1. Public Consultation...............................................................................................................4

1.2. Themes.....................................................................................................................................4

1.3. Making Submissions.............................................................................................................5

1.4. Format of Submissions........................................................................................................5

1.5. Making a submission is a public process......................................................................6

1.6. Closing Date...........................................................................................................................6

1.7. Web site...................................................................................................................................6

1.8. Queries.....................................................................................................................................7

2. Background......................................................................................................................................8

2.1. UGEE..........................................................................................................................................8

Prohibition of hydraulic fracturing or fracking – Private Members Business in the Dáil, Thursday 27th October 2016....................................................................................................................................................8

The Bill......................................................................................................................................................8

Fracking & potential environmental concerns............................................................................8

Environmental Protection Agency Fracking Report...................................................................9

Future trends.............................................................................................................................................10

SWAN Report........................................................................................................................................11

US EPA report.......................................................................................................................................11

Other countries....................................................................................................................................11

Unconventional Gas Exploration & Extraction (UGEE)...............................................................................12

Trade Agreements.....................................................................................................................................14

Amendment to Motion for Second Reading (not moved)...............................................................................16

Theme 1: Bill...................................................................................................................................................17

Interpretation............................................................................................................................................17

Prohibition.................................................................................................................................................17

Short title...................................................................................................................................................17

Joint Committee on Communications, Climate Action and Environment Page 2


Questions arising:......................................................................................................................................18

Theme 2: Legal issues.....................................................................................................................................19


Theme 3: Constitutional Issues.......................................................................................................................21


Theme 4: North – South Issues.......................................................................................................................23


Theme 5: EPA report – general.......................................................................................................................24


Theme 6: EPA Report - Water.........................................................................................................................26

Groundwater, surface water and associated eco-systems.........................................................................26

Seismicity...................................................................................................................................................26

Air Quality..................................................................................................................................................27


Theme 7: EPA Report – Impacts and Mitigation Measures.............................................................................30


Theme 8: EPA Report – Regulatory Framework..............................................................................................31




1. INTRODUCTION

1.1. PUBLIC CONSULTATION

The Joint Committee is carrying out a public consultation ON THE PROHIBITION OF THE EXPLORATION AND EXTRACTION OF ONSHORE PETROLEUM BILL 2016

AND

THE EPA LED JOINT RESEARCH PROGRAMME ON THE IMPACTS OF HYDRAULIC FRACTURING ON THE ENVIRONMENT AND HUMAN HEALTH 2016

You are invited to read the bill, explanatory memorandum and other documents, and consider the themes listed below.

1.2. THEMES

Theme 1: Bill

Theme 2: Legal issues

Theme 3: Constitutional Issues

Theme 4: North – South Issues

Theme 5: EPA report – general

Theme 6: EPA report - Water

Ground Water Surface Water Associated Ecosystems Seismicity Air Quality

Theme 7 EPA report - Impacts and Mitigation Measures

Theme 8 EPA report - Regulatory Framework



1.3. MAKING SUBMISSIONS

Written submissions and communications should be sent by email to:

[email protected] and / or by post to:

The Clerk Joint Committee on Communications, Climate Action and EnvironmentHouses of the OireachtasLeinster HouseKildare StreetDublin 2D02 XR20Ireland

Submissions should be received not later than the closing date below.

The Committee will consider any suitable written submissions received and may decide to invite a number of contributors to public hearings should it be considered necessary.

Submissions and communications should only be sent to the email address above and not to individual members of the Committee.

Please note that the Clerk will ensure that all members of the Committee receive, in due course, copies of all submissions and communications received.

1.4. FORMAT OF SUBMISSIONS

GUIDELINES

As a general guideline, submissions should consist of:

a covering letter (email or email attachment in MS Word or equivalent); a main submission document (email or email attachment in MS Word or

equivalent).

The covering letter should contain your name and contact details (phone number and postal address and, if available, an email address). If the submission is on behalf of an organisation, you should indicate your position in the organisation. If your submission is on behalf of another organisation, please make this clear in your letter.


mailto:[email protected]


DETAILS TO BE CONTAINED IN SUBMISSIONS

The main submission document should contain the following information:

1. Your name;

2. A brief introduction, for example, explaining your area of expertise;

3. Any factual information that you have to offer from which the Committee might be able to draw conclusions, or which could be put to other parties for their reactions;

4. Any recommendations to the Committee which should be as specific as possible and should be summarised at the end of the document;

5. An executive summary of the main points made in the submission, if your document is more than 10 pages long;

6. Whether you would be prepared to appear at a public session of the committee.

1.5. MAKING A SUBMISSION IS A PUBLIC PROCESS

The Committee is not obliged to accept your document once it has been submitted, nor is it obliged to publish any or all of the submissions if it has received or accepted.

However, the operation of a parliament is a public process, and you should be aware that any submissions made to a Committee may be published either as part of a Committee report, or separately, if the Committee decides to do so.

1.6. CLOSING DATE

The revised closing date for receipt of submissions will be Friday 10 February 2017.

Late submissions will be circulated to the committee, but there is no guarantee that they will be taken into account when the committee is considering its report.

1.7. WEB SITE

The committee has set up a web site for this public consultation including links to relevant documents and the full text of committee meetings.


http://www.oireachtas.ie/parliament/oireachtasbusiness/committees_list/ccae/publicservicebroadcasting/


1.8. QUERIES

Should you have any queries in relation to this matter, please email:

[email protected]

or contact:

Leo Bollins, Clerk to the Committee, at 01 618 3575 or

Jack Nugent, Policy Advisor, at 01 618 3529or

Lisa Kiely, Junior Clerk, at 01 618 4053


mailto:[email protected]


2. BACKGROUND

2.1. UGEE

PROHIBITION OF HYDRAULIC FRACTURING OR FRACKING – PRIVATE MEMBERS BUSINESS IN THE DÁIL, THURSDAY 27TH OCTOBER 2016

Prohibition of the Exploration and Extraction of Onshore Petroleum Bill 2016

THE BILLThe Explanatory Memorandum states that the bill proposes “the prohibition of any exploration or extraction of petroleum from rock that requires additional processes to increase the permeability of the rock and aid in the extraction of petroleum from lithologies, the shale rock, tight sands and coal seams.” According to the explanatory memo this includes but is not limited to the process of hydraulic fracturing or fracking.

FRACKING & POTENTIAL ENVIRONMENTAL CONCERNS“Hydraulic fracturing, or ‘fracking’, is a method used by drilling engineers to stimulate or improve fluid flow from rocks in the subsurface. In brief, the technique involves pumping a water-rich fluid into a borehole until the fluid pressure at depth causes the rock to fracture… After the fracking job, the pressure in the well is dropped and the water containing released natural gas flows back to the well head at the surface.” (David Healy 2012)

There has been a recent surge in the exploitation of shale gas by fracking. This is due in part to the fact that fracking, in combination with advanced directional drilling techniques has made it possible to economically extract oil and gas from unconventional resources, such as shale, tight formations, and coalbeds (US EPA 2015). However, this method may pose risks. According to Healy (2012), concerns raised in the media, and to a much lesser extent in scientific literature, relate to potential environmental impacts from fracking and include:

Earthquakes;

Pollution of groundwater and subsequently, potential pollution of drinking water;

Emissions of greenhouse gases including methane; and

Leakage of contaminated drilling waste fluid from storage ponds.



ENVIRONMENTAL PROTECTION AGENCY FRACKING REPORTIn 2011, the Environmental Protection Agency (EPA) was requested by Mr. Pat Rabbitte TD, the then Minister for Communications, Energy and Natural Resources, to commission and coordinate the management of research in relation to the environmental impacts of Unconventional Gas Exploration & Extraction (UGEE) (EPA 2015). The UGEE research project is funded by the EPA, the Department of Communications, Climate Action and Environment (formerly the Department of Communications, Energy and Natural Resources) and the Northern Ireland Environment Agency.

In 2012 the EPA published a preliminary report on the potential environmental and human health impacts of fracking, ‘Hydraulic Fracturing or ‘Fracking’: A Short Summary of Current Knowledge and Potential Environmental Impacts’ (David Healy 2012).

In 2014, the EPA held a public consultation on the Terms of Reference for the UGEE research project. In August 2014, a contract was awarded to a consortium led by CDM Smith Ireland Limited for a 24-month research programme looking at the potential impacts on the environment and human health from UGEE projects and operations (including construction, operation and aftercare). The research programme comprises five projects involving environmental field studies, such as baseline monitoring of water and seismicity and an extensive desk-based literature review of UGEE practices worldwide (EPA 2016). The research project is scheduled for completion by the end of the year. Status updates are available on the EPA website here.

Regarding the UGEE research project, “no fracking will be undertaken as part of the research programme” (EPA 2016a) and according to the Department “no decisions will be made on any proposal for the use of hydraulic fracturing in exploration drilling as part of an unconventional gas exploration programme, until there has been time to consider the outcome of the research programme” (Department of Communications, Climate Action and Environment 2016).

During the second stage debate in Dáil Éireann on 27 October on the Prohibition of the Exploration and Extraction of Onshore Petroleum Bill 2016, the Minister for Communications, Climate Action and Environment, Denis Naughten TD indicated his strong view that the work of the Oireachtas Committee on Communications, Climate Action and Environment in respect of the Bill would be considerably aided and advanced by being able to consider the outcome of the Environmental Protection Agency led Joint Research Programme on the Impacts of Hydraulic Fracturing on the Environment and Human Health.



The Report of the Environmental Protection Agency led Joint Research Programme was published on 30 November 2016, in the following parts:

Integrated Synthesis Report

Summary Report 1: Baseline Characterisation of Groundwater, Surface Water and Aquatic Ecosystems

Summary Report 2: Baseline Characterisation of Seismicity

Summary Report 3: Baseline Characterisation of Air Quality

Summary Report 4: Impacts and Mitigation Measures

Summary Report 5: Regulatory Framework for Environmental Protection

The full suite of documents associated with Report of the Environmental Protection Agency led Joint Research Programme can be accessed at: http://www.epa.ie/pubs/reports/research/ugeejointresearchprogramme/

FUTURE TRENDS

The Government (2011-2016) published its White Paper on Energy, Ireland’s transition to a low carbon energy future in December 2015 which commits Ireland to radically reducing our dependence on fossil fuels and also our greenhouse gas emissions by 2050. The paper acknowledges however, that oil and gas will continue to play a role in Ireland’s energy mix well into this century, albeit on a declining basis over time. Ireland’s indigenous natural gas supply will play an important role in our security of supply. It is expected that at peak production, gas from the Corrib field will provide up to 42% of our natural gas needs over the first two years of operation.

The White Paper on Energy refers to the EPA study on UGEE and states that no policy decision on fracking will be made prior to the publication of the research findings. It further acknowledges that any decision will be taken in the context of the aim of reaching zero carbon emissions by 2050.



SWAN REPORTThe Sustainable Water Network (SWAN) is an umbrella network of 26 of Ireland’s leading environmental NGOs. On 25th October 2016 SWAN published the report, HYDRAULIC FRACTURING ─ INTERACTIONS WITH THE WATER FRAMEWORK DIRECTIVE & GROUNDWATER DIRECTIVE AND IMPLICATIONS FOR THE STATUS OF IRELAND’S WATERS . The report found that fracking for shale gas is incompatible with good water quality and recommended its prohibition in Ireland.

US EPA REPORTFracking is widely used in the States and is responsible for the fall in US gas prices due to the increase in domestic gas production. However, environmental concerns have led to some controversy.

The US Congress urged the US EPA to study the relationship between fracking and drinking water. In 2015 the EPA published their draft report, THE ASSESSMENT OF THE POTENTIAL IMPACTS OF HYDRAULIC FRACTURING FOR OIL AND GAS ON DRINKING WATER RESOURCES (EXTERNAL REVIEW DRAFT) . The report concluded that there “there are above and below ground mechanisms by which hydraulic fracturing activities have the potential to impact drinking water resources”. However, they also noted that “We did not find evidence that these mechanisms have led to widespread, systemic impacts on drinking water resources in the United States.” (Taken from the Executive Summary page 6).

However, in the final version of the report, this conclusion has been removed on the grounds that the claim “could not be quantitatively supported” by the EPA scientists involved in the research. (New York Times, 13 th December 2016 ).

OTHER COUNTRIESFracking was banned in France in 2011 in response to pressure from environmental groups. While the previous and current UK Governments have been in favour of it, fracking in the UK was suspended in 2011 when drilling near Blackpool caused mini earthquakes. While the moratorium was lifted in 2012, many fracking applications have been turned down. However, earlier this month the Government overruled a council decision to block oil and gas company Cuadrilla carrying out test drilling in Lancashire (Equal Times, 26 October 2016). The moratorium remains in place in Scotland and Wales and fracking is currently banned in Northern Ireland (Belfast Telegraph, 28th September 2015).


https://www.nytimes.com/2016/12/13/us/reversing-course-epa-says-fracking-can-contaminate-drinking-water.html?_r=3

https://www.epa.gov/hfstudy/executive-summary-hydraulic-fracturing-study-draft-assessment-2015



http://www.foe.ie/news/2016/10/25/research-report-finds-fracking-for-shale-gas-incompatible-with-good-water-quality-and-recommends-its-prohibition-in-ireland/




UNCONVENTIONAL GAS EXPLORATION & EXTRACTION (UGEE)

Ireland is a country that is rich in sedimentary rocks, such as shale. Shale, in particular, can be exploited in such a way so as to produce natural gas. Given that the international oil and gas markets are often unstable for various reasons, exploitation of such gas represents an opportunity for governments to ensure that their energy needs are met, while exploration firms are keen to find new resources to bring to the market.

Shale gas is usually exploited through a method known as hydraulic fracturing, or as it is more commonly known, fracking. The process, essentially, involves injecting a mixture of water, small particles known as proppant, and often chemicals down a gas or oil well where the sheer pressure will crack apart (fracture) the rocks inside, releasing trapped oil and gas that can flow to the surface and be captured.

A report commissioned by the Environmental Protection Agency (EPA) in 2012, which will come under the aegis of the Department,1 explored fracking, with particular emphasis on the challenges presented by the process.2 The report used information gathered in the United States and the United Kingdom in an attempt to shed some light on the process. The most serious environmental concern, according to the report, is that of ground water contamination.3 The potential risk to ground water has been documented as coming from two sources: the injected fluid (water + chemical additives) and the released natural gas. However, the report had the following to say on the matter:

There may be an element of confusion in the media and in the wider public understanding, between contamination incidents from coal bed methane (or coal seam gas) fracking jobs, which occur at a relatively shallow depth closer to the water table, and alleged incidents from shale gas fracking, which is generally much deeper (thousands of feet or metres below the surface) and much further from any ground water aquifer and therefore presenting less of a risk for ground water contamination. That said, each shale gas play is unique…4

1 Minister for Communications, Climate Action and the Environment, Denis Naughten TD, Committee Debates, Vote 29 - Communications, Energy and Natural Resources, 29th June 20162 Dr. Healy, D., “Hydraulic Fracturing or ‘Fracking’: A Short Summary of Current Knowledge and Potential Environmental Impacts”3 ibid, p.104 ibid, p.10



Other challenges presented by the report include the issue with the use of chemical additives, noting that in some countries fracking companies are under no legal obligation to declare the exact composition of the mixture used (although the Irish regulatory regime requires full disclosure of all additives to the EPA), and the issue of where to source the vast amounts of water needed, noting that the extraction of water from small catchments could have an impact on the ecology and hydrology of rivers in the relevant areas.

To date, no commercial licenses for fracking have been issued by the EPA in Ireland. The EPA awarded a contract to CDM Smith Ireland Limited in August 2014 to carry out a 24-month research programme looking at the potential impacts on the environment and human health from UGEE projects and operations. The research, intended to be completed in two overlapping phases, involves extensive desk-based work (literature review and assessment) by technical experts (Phase 1), as well as baseline-monitoring of seismicity and water resources (Phase 2). The EPA had the following to say on the prospective findings of the study:

The desk-based work (Phase 1) has now been substantially completed. In January 2016, the EPA was requested by DCENR [Department of Communications, Energy and Natural Resources] to pause the next Phase of the research to allow time to review the multiple outputs of Phase 1. Following consideration of this request by the project Steering Committee, the Steering Committee has agreed to complete Phase 1 of the study before any decision is made about future work.5

As such, it is unclear when exactly the findings of the research programme will be published, although it was originally anticipated that the programme would be completed by July 2016.6

Members should perhaps be aware that the Joint Committee on Transport and Communications met with the EPA to discuss the potential impacts of hydraulic fracturing in June 2015 and again to discuss UGEE in December 2015.7

TRADE AGREEMENTS

5 EPA, “Statement Regarding Research Programme on Unconventional Gas Exploration and Extraction”, February 2016, accessible at: http://www.epa.ie/pubs/reports/research/ugeejointresearchprogramme/EPA_Statement_UGEE_JRP_040216.pdf6 http://www.dccae.gov.ie/natural-resources/ga-ie/Oil-Gas-Exploration-Production/Pages/Hydraulic-Fracturing.aspx7 Joint Committee on Transport and Communications, “Unconventional Gas Exploration and Extraction: Environmental Protection Agency”, 2nd December 2015, Accessible at: http://oireachtasdebates.oireachtas.ie/Debates%20Authoring/DebatesWebPack.nsf/committeetakes/TRJ2015120200004?opendocument#F00100


http://oireachtasdebates.oireachtas.ie/Debates%20Authoring/DebatesWebPack.nsf/committeetakes/TRJ2015120200004?opendocument#F00100

http://oireachtasdebates.oireachtas.ie/Debates%20Authoring/DebatesWebPack.nsf/committeetakes/TRJ2015120200004?opendocument#F00100

http://www.dccae.gov.ie/natural-resources/ga-ie/Oil-Gas-Exploration-Production/Pages/Hydraulic-Fracturing.aspx

http://www.dccae.gov.ie/natural-resources/ga-ie/Oil-Gas-Exploration-Production/Pages/Hydraulic-Fracturing.aspx

http://www.epa.ie/pubs/reports/research/ugeejointresearchprogramme/EPA_Statement_UGEE_JRP_040216.pdf

http://www.epa.ie/pubs/reports/research/ugeejointresearchprogramme/EPA_Statement_UGEE_JRP_040216.pdf


The committee may wish to note the potential future importance of the proposed Transatlantic Trade Investment Partnership (TTIP) between the EU and the United States of America and how this agreement may have an impact on issues that the Committee may wish to consider.

The proposed Comprehensive Economic and Trade Agreement (CETA) between the EU and Canada is another trade agreement that could have an effect on areas relevant to this Committee.

While these trade agreements are not within the orders of reference of the committee, the committee may wish to maintain a “watching brief” on the negotiations, and should any aspect of either of these trade agreements fall within the competence of this Committee, then Members may wish to issue a report should they have any observations to make.

The committee may wish to note that in July 2014, the Joint Committee on EU affairs submitted a political contribution to the EU institutions to voice the committee’s observations on TTIP.

Subsequently, and building on the original political contribution of the Joint Committee on EU Affairs, a joint political contribution to the EU institutions on aspects of TTIP as fell within their competence in December 2015 was submitted by:

the Joint Committee on Jobs, Enterprise and Innovation, the Joint Committee on Agriculture, Food and the Marine, the Joint Committee on EU Affairs.



TTIP, CETA, and particularly the potential effects that these agreements may have on areas such as Energy and Climate Action, are topics that Members should perhaps be aware of. One such aspect that may be of particular interest to Members is the Investor-State Dispute Settlement (ISDS) mechanism.8

The committee noted that on Thursday, 27 October 2016 the Minister told the Dáil:

Without going into the complexities of geology or legal definitions, if the current wording of the Bill were to become law, the spirit and intention of the Deputy’s objective may not in fact be definitively reflected in law.As such, it is my strong view that the work of the Joint Committee on Communications, Climate Action and Environment would be considerably aided and advanced by being able to consider the outcome of the shortly to be published integrated synthesis report on the environmental impacts of fracking.

On 30 November 2016 the Minister stated in a press release regarding the EPA report:

I have decided to refer the report to the Joint Oireachtas Committee on Communications, Climate Action and the Environment for its consideration. I hope this will assist at the Committee Stage debate of the proposed hydraulic fracturing legislation to be progressed by the Oireachtas next year.

8 A procedural mechanism provided for in international agreements on investment. Countries sign such agreements in order to set out ground rules when foreign companies invest on their territory, for example by building factories. ISDS allows an investor from one country to bring a case directly against the country in which they have invested before an arbitration tribunal. There are reports in the media that a Canadian company is taking the United States government to court over its refusal to allow the construction of an oil pipeline from Canada to the Unites States under the terms of the North American Free Trade Agreement (NAFTA), and similarly, a US company is suing the Canadian government over the Quebec government’s decision to revoke oil and gas exploration licences “located beneath the St. Laurence river”.



AMENDMENT TO MOTION FOR SECOND READING (NOT MOVED) :

1. To delete all words after “That” and substitute the following:

“Dáil Éireann resolves that the Bill be deemed to be read a second time on 30 June, 2017,

to allow for:

(a) the publication of the Integrated Synthesis Report prepared as part of the Environmental Protection Agency led cross-border Joint Research Programme on the Environmental Impacts of Unconventional Gas Exploration and Extraction;

(b) the opportunity for a public consultation on the Integrated Synthesis Report to be undertaken and considered by the Minister for Communications, Climate Action and Environment, while noting that no application to engage in unconventional gas exploration has been received by the Minister, nor would any such application, if submitted, be considered until the research programme has concluded and there has been time to consider its findings; and

(c) scrutiny between now and then by the Joint Committee on Communications, Climate Action and Environment and for the Committee to consider submissions

and hold hearings that have regard in particular to ensure that:

(i) the proposed Bill strikes a balanced and measured approach in relation to protecting public health and the environment and promoting the common good;

(ii) the Committee can take full account of the Integrated Synthesis Report on the

Environmental Impacts of Unconventional Gas Exploration and Extraction and the related public consultation;

(iii) the proposed Bill does not give rise to any unintended consequences or adverse effects on the utilisation by the State of its natural resources or on the State’s energy policy;

(iv) the proposed Bill takes account of scientific information and expert knowledge on matters related to exploration and extraction; and

(v) the proposed Bill does not give rise to Constitutional or legal difficulties for the State; and to fully discuss and explore other practical issues and consequences that may arise as a result of the proposals.”.— An tAire Cumarsáide, Gníomhaithe ar son na hAeráide agus

Comhshaoil.



THEME 1: BILL

INTERPRETATION

1. In this Act—“coal seams” means a layer or stratum of mineral coal;“Irish onshore and Ireland’s internal waters” means all the land comprising the Republic of Ireland and its onshore lakes, rivers and streams;“petroleum” includes any mineral oil or relative hydrocarbon and natural gas and other liquid or gaseous hydrocarbons and their derivatives or constituent substances existing in its natural condition in strata which can be extracted and refined to produce fuels including petrol, paraffin, oil, diesel, liquid natural gas or natural gas;“shale rock” means a fine-grained sedimentary rock that forms from the compaction of silt and clay-size mineral particles which readily splits into thin pieces along its laminations and which contains organic material that sometimes breaks down to form natural gas or oil;“tight sands” are low permeability sandstone reservoirs that produce primarily drynatural gas. A tight gas reservoir is one that cannot be produced without assistance from stimulation treatments to increase permeability to aid extraction.

PROHIBITION

2. Notwithstanding the provisions of any other Act of the Oireachtas, no Minister, Agency, Planning Authority or Body acting on behalf of the State shall grant an authorisation and/or grant of any consent, licence, permit, lease or undertaking for the exploration or extraction of petroleum from shale rock, tight sands or coal seams in the Irish onshore and Ireland’s internal waters.

SHORT TITLE

3. This Act may be cited as the Prohibition of the Exploration and Extraction of Onshore Petroleum Act 2016.



QUESTIONS ARISING:

This Bill proposes to introduce a “blanket” ban in relation to unconventional exploration and extraction of onshore petroleum. What is the likely impact of an absolute ban such as this? Is such a ban warranted given the available evidence?

As per section 3, the Bill, if enacted, may be cited as the Prohibition of the Exploration and Extraction of Onshore Petroleum Act 2016. Do stakeholders have any views on the wording of this citation?

According to the Explanatory Memorandum that accompanies this Bill, “the purpose of this Bill is to provide for a clear an unequivocal position in relation to the exploration and extraction of petroleum from shale rock, tight sands and coal seams in the Irish onshore and Ireland’s internal waters.”9 Do stakeholders feel that the Bill establishes a clear and unequivocal position in this regard?

9 Explanatory Memorandum, Prohibition of Exploration and Extraction of Onshore Petroleum Bill 2016.


https://www.oireachtas.ie/documents/bills28/bills/2016/3716/b3716d-memo.pdf


THEME 2: LEGAL ISSUES

On 27 October 2016 the Minister for Communications, Climate Action and Environment informed the Dáil:

Without going into the complexities of geology or legal definitions, if the current wording of the Bill were to become law, the spirit and intention of the Deputy’s objective may not in fact be definitively reflected in law.10

In light of the Minister’s statement above, it is worth noting that there have been many previous instances where the legislative intent of Acts of the Oireachtas have not been fully realised.

Readers may wish to note the potential future importance of the proposed Transatlantic Trade Investment Partnership (TTIP) between the EU and the United States of America and how this agreement may have an impact an the area of Unconventional Gas Exploration and Exploitation.

The proposed Comprehensive Economic and Trade Agreement (CETA) between the EU and Canada is another trade agreement that could have an effect on this area.

One aspect of these agreements that may be of interest in the context of Unconventional Gas Exploration and Exploitation is the Investor-State Dispute Settlement (ISDS) mechanism.11

10 Minister for Communications, Climate Action and Environment, Denis Naughten, T.D., Minister Denis Naughten's Prohibition of Petroleum Exploration and Extraction Bill 2016 Dáil Speech, 27 October 2016. 11 A procedural mechanism provided for in international agreements on investment. Countries sign such agreements in order to set out ground rules when foreign companies invest on their territory, for example by building factories. ISDS allows an investor from one country to bring a case directly against the country in which they have invested before an arbitration tribunal.


http://www.dccae.gov.ie/news-and-media/en-ie/Pages/Speech/Minister-Denis-Naughten's-Prohibition-of-Petroleum-Exploration-and-Extraction-Bill-2016-Dail-Speech.aspx


QUESTIONS ARISING:

Do stakeholders believe that there is potential for the legislative intent of this Bill to be undermined if it is enacted with its current wording?

Do stakeholders believe that there are other potential legal issues that could arise if the Bill is enacted with its current wording?

In the event that this Bill is enacted, is there a possibility that the State could be exposed to litigation from companies that have already invested in Unconventional Gas Exploration and Exploitation in Ireland, especially in the context of the prospective free trade agreements between the EU and the United State of America and Canada respectively?12

12 There are reports in the media that a Canadian company is taking the United States government to court over its refusal to allow the construction of an oil pipeline from Canada to the Unites States under the terms of the North American Free Trade Agreement (NAFTA), and similarly, a US company is suing the Canadian government over the Quebec government’s decision to revoke oil and gas exploration licences relating to oil and gas “located beneath the St. Laurence river”.


http://www.international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/disp-diff/lone.aspx?lang=eng

https://www.washingtonpost.com/news/energy-environment/wp/2016/11/09/now-that-trump-has-won-transcanada-wants-to-give-keystone-xl-pipeline-another-try/?utm_term=.13b3fd3e2813


THEME 3: CONSTITUTIONAL ISSUES

Articles 26 and 27 of the Constitution provide mechanisms for challenging prospective legislation on constitutionality grounds. While these mechanisms allow for the challenge of potentially unconstitutional legislation on behalf of society, the State is also answerable before the courts for wrongs committed against individuals for breach of their constitutional or legal rights. However, while individuals can claim redress for a breach of their constitutional rights, it is worth remembering that the Constitution itself may only be altered following a referendum, provision for which is made in Article 46.

There are a number of these fundamental rights that are protected by the Constitution, and there a number of others that are not specifically contained in the Constitution, but that are recognised by the Courts nonetheless. In relation to the Prohibition of the Exploration and Extraction of Onshore Petroleum Bill 2016 and the issue of Unconventional Gas Exploration and Extraction in general, there are number of these rights that may be relevant. Rights relating to property and the right to earn a livelihood may be of relevance in the current instance.



QUESTIONS ARISING:

Do stakeholders feel that a Bill which is in favour of/against the introduction of Unconventional Gas Exploration and Extraction practices may be open to challenge under either Article 26 or Article 27 of the Constitution?

In a briefing paper published on 04 January 2017, the House of Commons appears to suggest that fracking is feasible in the United Kingdom, but there are a number of issues that need to be addressed before this can happen. For instance, there needs to be a determination on the legal aspects of drilling under someone else’s property. 13 Do stakeholders have any views on a compensation mechanism for when property rights of individuals are affected in the event that Unconventional Gas Exploration and Exploitation practices are allowed to proceed?

As mentioned previously, trade agreements such as TTIP and CETA provide a new means of litigation for companies where the company’s potential profits are adversely affected. Do stakeholders anticipate that companies/private individuals could potentially sue the State for breach of fundamental rights in the event that Unconventional Gas Exploration and Exploitation practices are not allowed to proceed?

13 Delebarre J., Ares E. and Louise Smith, House of Commons Library, Shale Gas and Fracking: Briefing Paper, 04 January 2017, p.21



THEME 4: NORTH – SOUTH ISSUES

The Northwest Carboniferous Basin, an area which is believed to have potential for shale gas exploration, spans across the border between Ireland and Northern Ireland. It spans an area that includes counties Cavan, Donegal, Leitrim, Mayo, Monaghan, Roscommon and Sligo in Ireland14 and county Fermanagh in Northern Ireland.15

It is worth noting that each jurisdiction has its own Department that issues licenses in relation to the exploitation of Natural Resources.

QUESTIONS ARISING:

Do stakeholders have any views on how a Unconventional Gas Exploration and Exploitation operation that exists in Northern Ireland, and located in the Northwest Carboniferous Basin, could exist where similar operations in the same Basin, but located in Ireland, are prohibited? Is it possible to accurately identify which resources are within the jurisdiction of Ireland, and which are within the jurisdiction of Northern Ireland?

Is it possible that a situation could arise in a post-Brexit era where a body in Northern Ireland could benefit from a Unconventional Gas Exploration and Exploitation operation that may impinge on Ireland’s resources, while at the same time, Ireland may be prevented from benefitting from the output of such an operation due to trade restrictions etc.?

14 Past Minister of State at the Department of Communications, Energy and Natural Resources, Mr. Conor Lenihan, Minister Lenihan invites applications for Onshore Petroleum Licensing Options over the Northwest Carboniferous Basin and Clare Basin. 15 EPA, Proposed Terms of Reference for EPA/DCENR/NIEA Research Programme on Environmental Impacts of Unconventional Gas Exploration & Extraction (UGEE), 2013, p.1.


http://www.epa.ie/pubs/reports/research/ugeejointresearchprogramme/drafttermsofreferenceforugeeresearchprogramme.html

http://www.epa.ie/pubs/reports/research/ugeejointresearchprogramme/drafttermsofreferenceforugeeresearchprogramme.html

http://www.dccae.gov.ie/natural-resources/en-ie/Oil-Gas-Exploration-Production/Pages/Onshore-Licensing.aspx

http://www.dccae.gov.ie/natural-resources/en-ie/Oil-Gas-Exploration-Production/Pages/Onshore-Licensing.aspx


THEME 5: EPA REPORT – GENERAL

The Environmental Protection Agency (EPA) awarded a contract to CDM Smith Ireland Limited in August 2014 to carry out a 24-month research programme looking at the potential impacts on the environment and human health from Unconventional Gas Exploration and Extraction (UGEE) projects and operations.

In November 2016, the EPA published an Integrated Synthesis Report and a series of related reports (eleven in total) arising from the Joint Research Programme on Environmental Impacts of UGEE.16

As a precursor to the consideration of the Joint Research Programme, readers may wish to note that:

Environmental monitoring is needed before, during and after UGEE activities (exploration drilling, hydraulic fracturing and potential production) at both sub-regional and local scales. There are three types of environmental monitoring which relate to the different stages of UGEE activity, as follows:

baseline monitoring conducted prior to any construction or operations, to establish pre-existing environmental conditions;

operational monitoring conducted during construction, drilling, hydraulic fracturing and production activities, in order to be able to identify and track changes from the baseline and determine if such changes can be linked to a particular activity; and

post-closure monitoring conducted after completion of gas production, well decommissioning and site restoration, to check for potential impact in the long term and verify that mitigation measures have been effective.17

16 http://www.epa.ie/pubs/reports/research/ugeejointresearchprogramme/ 17 Olsen R., Keating D., Claros C., Moe H. and Lorraine Gaston, Unconventional Gas Exploration and Extraction (UGEE) Joint Research Programme, Summary Report 4: Impacts and Mitigation Measures, 2016, p. 14.


http://www.epa.ie/pubs/reports/research/ugeejointresearchprogramme/


The scope of the Joint Research Programme was developed to address two key questions, namely:

can UGEE projects/operations be carried out in the island of Ireland while also protecting the environment and human health; and

what is best environmental practice in relation to UGEE projects/operations?18

In light of the questions above, the authors of the Integrated Synthesis Report concluded that:

many of the activities associated with UGEE projects/operations could proceed on the island of Ireland, while protecting the environment and human health. This should be done using the best practices identified in Final and Summary Reports 4: Impacts and Mitigation Measures and applying the current regulations, together with a small number of additions and modifications that should be complemented by adequate implementation and enforcement.19

QUESTIONS ARISING:

Do stakeholders agree that there are three identifiable types of environmental monitoring which relate to the different stages of UGEE activity, i.e. baseline monitoring, operational monitoring and post-closure monitoring, and have these types of monitoring been undertaken in similar projects to date?

The scope of the Joint Research Programme was developed to address two key questions, namely:

o can UGEE projects/operations be carried out in the island of Ireland while also protecting the environment and human health; and

o what is best environmental practice in relation to UGEE projects/operations?Do stakeholders feel that the EPA research has adequately addressed the 2 key questions as specified above?

Do stakeholders believe that UGEE projects/operations could proceed on the island of Ireland while protecting the environment and human health, subject to the additions and modifications specified above?

18 Hooper A., Keating D. and Roger Olson, Unconventional Gas Exploration and Extraction (UGEE) JointResearch Programme, Integrated Synthesis Report, EPA, 2016, p. 42. 19 Ibid, p.42.



THEME 6: EPA REPORT - WATER

GROUNDWATER, SURFACE WATER AND ASSOCIATED ECO-SYSTEMS

The EPA notes that in a regulatory context identifying and documenting volumetric impact is relevant. They state that the ecological impact of UGEE-related abstractions will ultimately determine whether or not an abstraction authorisation should be granted.20

The EPA state that the bedrock aquifers in both study areas (the Northwest Caboniferous Basin and the Clare Basin) are viable sources of water to meet demands, at least in part. It is stated that the potential future UGEE-related abstractions would have to be evaluated at both local and catchment levels.21

The Report acknowledges that the characterisation and knowledge of deep geological and hydrogeological conditions represent the principal data gaps associated with both case study areas.22

SEISMICITY

It is suggested that if best practice is applied it is unlikely that there will be any seismic consequences to normal receptors.23 However, the EPA Report has identified the need for detailed baseline monitoring should be an essential requirement of any future unconventional gas exploration and extraction.24

20 Hooper A., Keating D. and Roger Olson, Unconventional Gas Exploration and Extraction (UGEE) Joint Research Programme, Integrated Synthesis Report, EPA, 2016, p. 12.21 Ibid, pp. x-xi. 22 Ibid, p. xi. 23 Ibid, p. xi.24 Ibid, p. xiv.



AIR QUALITY

The EPA recommends that further research into the potential cause-effect relationship of UGEE activities and actual health outcomes in hazard analyses requires further research.25 As the Report notes:

A review of seven jurisdictions where commercial UGEE operations are ongoing found that, in all cases, a full baseline characterisation of air quality had not been carried out prior to the commencement of operations. This has been highlighted as an important information gap and recommendations for baseline studies and extensive investigations into potential air quality impacts have been made in many studies.26

25 Ibid, p. xvi. 26 Ibid, p. xvi.



QUESTIONS ARISING:

GROUNDWATER, SURFACE WATER AND ASSOCIATED ECO-SYSTEMS

Do you agree with the EPA’s conclusion that the operators and regulators share responsibility for the for baseline monitoring?

What if any ecological concerns do you associate with UGEE-related abstractions? The EPA Report notes the following: “the recommended sub-regional baseline

monitoring programmes also include specifications for parameters that should be measured, recommendations for installation of new monitoring wells, sampling of stream sediments and monitoring of a small number of designated groundwater-dependent habitats”.27 Do you believe these considerations are suitable?

What measures should be put in place to ensure the views of local stakeholders are taken into consideration?

What environmental reference conditions do you think should be taken into consideration? How are different areas and their needs measured?

How would the catchment area be defined? Are the appropriate measures in place to monitor and address the cumulative impact across catchment areas?

Do you believe that the appropriate contingency plans are in place should a contamination event occur?

Do you believe that the appropriate measures are in place to reduce any potential spillages associated with human error and equipment failure?

Do you believe that all potential environmental and public health concerns have been considered and addressed by the EPA report?

How do UGEE-related abstractions fit in with the wider energy policy objectives both in Ireland and the EU?

27 Hooper A., Keating D. and Roger Olson, Unconventional Gas Exploration and Extraction (UGEE) Joint Research Programme, Integrated Synthesis Report, EPA, 2016, p. xi.



SEISMICITY

Do you agree with the recommendation of the EPA given that the dearth of data means that robust forecasts of the main parameters are not possible?

AIR QUALITY

The EPA recommends that further research into the potential cause-effect relationship of UGEE activities and actual health outcomes in hazard analyses requires further research.28 Do you agree that further research should be conducted in this area?

Given the fact that long term emissions can occur after completion through leaks from capped wells what do you think is an appropriate time-frame for any potential research in this area?

28 Hooper A., Keating D. and Roger Olson, Unconventional Gas Exploration and Extraction (UGEE) Joint Research Programme, Integrated Synthesis Report, EPA, 2016, p. xvi.



THEME 7: EPA REPORT – IMPACTS AND MITIGATION MEASURES

The Report notes that surface chemical spills and leaks would be likely to occur and operators must be prepared with appropriate responses and mitigation measures.29

In addition the Report also notes that fluids associated with drilling and hydraulic fracturing operations, together with natural gas constituents that are present or released, represent potential sources of groundwater contamination if these migrate to the near-surface environment via natural, induced or artificial pathways.30

The EPA Report highlights the following issue: accidental spills of flowback and produced water can be expected from UGEE-related activities and, although the overall risk of impact from transport-related spills of flowback31 and produced water is considered to be low, these could result in an environmental impact.32

The Report notes that “one of the main areas where uncertainties are liable to remain relates to the quantification of long-term greenhouse gas emissions”.33

QUESTIONS ARISING:

How would you suggest that the actions of the operator be monitored to ensure that the appropriate responses and mitigation measures are put in place?

What measures do you believe should be put in place to avoid any potential sources of groundwater contamination?

How should the risk of groundwater contamination be assessed? Given that the report notes that the risk is low should measures be put in place to

assess the potential environmental impact of accidental and transport related spills of flowback?

Do you believe that there should be a ban on UGEE-related activities until more information is available?

The Report notes that “one of the main areas where uncertainties are liable to remain relates to the quantification of long-term greenhouse gas emissions”.34 Is this something of concern to you and/or your organisation?

29 Hooper A., Keating D. and Roger Olson, Unconventional Gas Exploration and Extraction (UGEE) Joint Research Programme, Integrated Synthesis Report, EPA, 2016, p. xvii.30 Ibid, p. xvii. 31 Flowback is a water based solution that flows back to the surface during and after the completion of hydraulic fracturing.32 Ibid, p. xvii. 33 Ibid, p. xvii.34 Ibid, p. xvii.



THEME 8: EPA REPORT – REGULATORY FRAMEWORK

The European Commission is currently reviewing the scope of the Best Available Techniques (BAT) Reference Document (BREF) regarding the Mining Waste Directive and is also considering the development of a BREF that focuses on hydrocarbon exploration and production that would encompass UGEE.35

A selection of countries and states in the United States of America were identified for review and five were selected, in consultation with the steering committee, for detailed assessment. This assessment examined Denmark, Germany, the UK and the states of Pennsylvania and Colorado, identifying their regulatory approach and specific requirements through the project’s life cycle, together with a comparative analysis of the approaches.36

QUESTIONS ARISING:

Do you believe that UGEE-related abstractions should be delayed until the findings of The European Commission’s Report have been published?

35 Hooper A., Keating D. and Roger Olson, Unconventional Gas Exploration and Extraction (UGEE) Joint Research Programme, Integrated Synthesis Report, EPA, 2016, p. xix.36 Ibid, p. xix.


Documents

Public Consultation on UGEE - Web viewPublic Consultation on UGEE. ... (email or email attachment in MS Word or equivalent). ... Shale gas is usually exploited through a method known