Bishop Hill A voluntary approach to shale gas
Feb 4, 2014 Climate: Parliament Energy: gas The Telegraph reckons that things are about to get heated on the shale gas front, with protestors threatening to sue anyone who tries to drill under their homes. Their hope is that the law of trespass will prove equal to the task, and it seems that David Cameron is sufficiently worried that he is considering a change to that law in order to ensure that the nascent shale gas revolution is not crushed before it gets going.
In some ways I sympathise with the homeowners who are objecting, however ephemeral any problems may may prove to be in practice. Drilling under someone's home seems like an imposition, even if it is thousands of feet down, and regardless of the letter of whatever law Mr Cameron gets put on the books.
But if, as was once said politics is "the art of looking for trouble, finding it whether it exists or not, diagnosing it incorrectly, and applying the wrong remedy" then Mr Cameron's approach is the archetype. Ramming shale gas down people's throats is not going to win any friends, let alone the wider PR battle.
A far better approach would be to repeal the Petroleum (Production) Act 1934, which nationalises ownership of onshore oil and gas resources. This would send out a signal to the country that shale gas development will take place on a voluntary basis. Landowners would be clamouring to be at the front of the queue to have their land drilled. Those who really objected could sit secure in the knowledge that they were in control of their own destinies.
Coincidentally, there have been mutterings in Parliament about a lack of bills put in front of the house - a function it seems of most decisions now being taken by bureaucrats in Brussels. What better use to put our MPs than to get them to bring about a voluntarist revolution.
Some months ago, I mentioned this idea to a BBC journalist, who was appalled at the suggestion that valuable assets might be put into private hands (even the private hands from which they had originally been taken by the state) and in reality I think these kinds of objections would probably be insurmountable. In public life, the taking of valuable assets from private people is permissible, or even to be desired. Giving them back is not.
So instead of adopting a policy of voluntarism, we will carry on down the spiral of coercion and outrage, more coercion and more outrage that characterises most aspects of the UK today.
Sad really.
Reader Comments (64)
Surely mining for coal and minerals takes place under people's homes and land? Tunneling for metro systems water, sewage and gas transportation happens under people's home and land. All of these are much closer to the surface than oil and gas exploitation, which is also happening today and have been for years.
What is new and different for shale?
And for how many decades (centuries?) has coal been mined from under people's houses? Little clamour there and any subsidence damage repaired by the NCB.
SandyS. You beat me to it, but I was going to add an example of a mineral being the salt mines which extend under large areas of Cheshire. If people don't want water extraction from under their homes, are they going to do without water?
You're having a laugh surely: Libertarian private property ideology gone mad! As Crocodile Dundee sagely said "it's like two fleas on a dogs back arguing about who owns the dog".
James G
Vesting oil and gas rights in landowners is how it is done in the USA and how it was done in the UK prior to 1934. Surely the madness is in ruling it out a priori?
So, in summary:
Labour coal mines under people's homes = GOOD
Conservative shale mines under people's homes = EVIL
Glad we got that sorted.
And how do they prove the drill went under their house?
Yes, Coal mining caused immense damage at the surface. I have yet to read of any surface effects from fracking apart from minor tremors which happen daily anyway.
Doug
It doesn't apply in Scotland, because the Crown FALSELY IN MY VIEW uses an English based law to claim that it owns all of Scotland (which rightly belongs to the people and not the crown).
That means that QEII claims to own EVERYTHING which is not explicitly owned by anyone else. That includes
OIL, Minerals, Water, etc.
It also includes
Pollution, CO2 & the air we breath. It also means she claims to own every invention that no one yet claims (i.e. not discovered yet). She claims to own people if we can't show we are owned by anyone.
In other words, unless you can produce a receipt ... QEII claims it ... because as an English Monarch the "ancient"** law of England says that the Queen owns everything not claimed by anyone else (ignoring the prior ownership by the people of Scotland of Scotland).
**Introduced about 1950
The seminal case for this issue was Mohammed al Fayed, whose house in Hogtrough Lane, Oxted (I kid you not - see google map here: http://goo.gl/maps/HGWwv ) was drilled under by Star Energy for the Palmer's Wood oilfield (drillpads visible on linked map, but you'd struggle to see anything of them in Streetview). Initially, he won big:
http://www.telegraph.co.uk/news/uknews/2455240/Mohamed-Fayed-strikes-it-rich-with-stake-in-backyard-oilfield.html
He lost on appeal, and again in the Supreme Court, being awarded just £1,000:
http://ukscblog.com/case-comment-star-energy-weald-basin-ltd-or-respondents-v-bocardo-ltd-appellant/
Comment I've seen suggested that the compensation might be as low as under £100 on the principles decided by the court if the company had negotiated prior to drilling. In this context, the £100,000 local compensation figure seems generous.
James Verdon emails echoing the thoughts of commenters here. I agree that the trespass issue is overdone, but voluntarism would still be a better approach.
There's solicitors all over the country digging through dusty old law and sending out letters telling people that the oil / gas under their feet is somehow the property of erm, The Duchy of Cornwall, The Longleat Estate, The Church of England and sundry other nabobs... according to laws enacted when candles were the primary source of light after the sun went down.
"Permitting" is a pivotal and often overlooked part of oil and gas exploration and resource development - there's a wave of land grabbing going on :-)
How long before the law of unintended consequences kicks in?
Think of the juicy claims the lawyers could chase for anyone who has suffered "trespass" under their property. Mining is the obvious candidate but what about utilities: water, gas, sewers, 'leccy? The grand-daddy has to be CrossRail - or H2S - and even the whole tube network!
Much fun to come, methinks.
Gas pipelines are NOT laid/run under homes or buildings. They're in the public highway, or, under land having had landowners' prior permission.
Voluntarism, plus waving a wedge of £100 notes may certainly do the trick.
Andrew, it will never work. The law is always stacked in favour of the few with money against the many without. The result is that when it comes to "voluntarism" ... it always ends up as the ordinary citizen being forced to "voluntarily" give up or pay up unless a few daft individuals (like you and me) start some kind of campaign.
So, for example people can "voluntarily" decide whether or not to burn energy ... and so they are entirely free to decide how much money they WISH to give to rich land-owners to chop up birds. There's no compulsion over wind farm payments!!!
And look at the way communities are now "voluntarily" take bird mincers across Scotland as a result of "voluntarily" taking up the bribe from the windmincer developers. In any other area of life giving money to organisations to secure planning consent is a criminal offence.
But, now just imagine what those protesters who so eagerly encouraged windmincer developers to bribe local communities would now say if the fracking companies did the same? What if fracking companies paid out 100,000s to local planning committees to encourage them to be friendly to their development!
In the end, the best way to decide large infrastructure projects, is to have an open honest public debate WHERE BOTH SIDES HAVE THE MEANS TO PUT THEIR CASE UNLIKE RENEWABLES OR CO2 ... and then yes compensate for any harm, but in my experience, you need that public debate. All that trying to avoid it by some kind of "bribe" scheme (which is what you are really suggesting) would do is just make a lot more people a lot more angry as we've seen over wind and CO2.
What I'm trying to say, is that unless you have that heated public debate -- the public will not accept it. So, whilst voluntarism might appear to make it less fractious and ease the process for the frackers, I'm afraid the only real solution is to encourage the kind of public debate we are now seeing as that will convince a lot more people - and no doubt a bit of compensation if it happens to them would not hurt.
mikeh. Excellent . Many utilities go under peoples homes. Some of the coal seams in Wigan are so shallow one can enter them from peoples basements. Where water is pumped from a confined aquifer , the ground can settle . Consequently pumping water from any confined aquifer beneath a city , such as London, should be stopped. The problem was many underground tunnels were constructed after the water level had declined . Consequently the water level is now rising and boreholes are having to be pumped to prevent flooding of tunnels.
If water can be abstracted from beneath one's home why not gas?
Charlie, the daft thing is that we need people like greenspin and Full of Earth to organise the kind of protests that then get the scientific illiterate chatterArti on radio to discuss it. This then forces the commercial interests to spend the time and money to convince people - and usually, we reach a kind of compromise somewhere between the £s in the eyes commercial interests and the earwigs for brains greens which most people can accept.
The problem on CO2, is that the earwig brigade were bought by the £s in their eyes developers, the broadcasters joined in (showing their true feelings to their audience) and started attacking any ordinary member of the public who disagreed and eventually we had all the earwigs in the public service from academia to the civil service howling for a full blown witch trial of anyone at all who dared to question whether their holly writ had any scientific basis.
So, my view is that just because the earwig brigade totally failed to do their job to stop bird-mincers - doesn't mean that those with earwigs for brains, might not be doing a useful job over fracking.
I can't see them winning the debate -- but they are making sure that everyone hears the arguments and ensuring that the developers get off their fat arses and put a case to the public to get support - rather than just thinking they can buy it.
Could this right to object be extended to trespass of Airspace? I have Grid cables crossing my airspace within 30m of my home and on summer weekends the local flying club use their noisy little aircraft in my airspace to the extent that I'm minded to get my hands on a surface to air missile. If trespass is relevant 5000ft below then I assume it must be 5000ft above !!
I doubt l would be worried about the drill holes themselves, just the draining/damage of any aquifers the water is drawn from, where the produced water goes, and what it contains.
Wee Iain:
See the legal opinion I cited re al Fayed.
only applies to airspace up to a height which may interfere with the ordinary enjoyment of the land (Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 479).....unless there has been an alienation of them by a conveyance, at common law or by statute to someone else
http://ukscblog.com/case-comment-star-energy-weald-basin-ltd-or-respondents-v-bocardo-ltd-appellant/
Funnily enough I'd be going full steam in the opposite direction. One of Thatchers few big errors was privatising essential utilities. We have no choice but to use water, gas, electricity etc and do so for the most basic provisions of living; as such imo they shouldn't be in private ownership.
Also, one of the biggest objections to shale is the prospect that a handful of well-connected elites will get rich at the expense of the masses, and so far Cameron hasn't done a good job of dispelling that impression.
The solution? A nationalised British Shale gas industry. Ring-fence revenues - either gas comes down in price and every household benefits from lower bills or the price stays high (modest supply, international market prices) and a UK fund is overflowing with cash.
Leave the Fund untouched for 10 years to build up savings and clearly show The People what the benefits are.
Pay companies to get the stuff out of the ground, not to cream off a disproportionately large share.
I'd also factor in a payment for every household within X meters of a producing well. That way you'd leverage a majority of voters onside who wouldn't be ideologically against it, to overwhelm the eco-nutters who are. (You could then claim 'consensus' support - maybe even 97.1%...)
In short, share, and just maybe shale will happen. (Not so different from the Bish' then, albeit an entirely different type of sharing) And to think I'm normally a full-on free market capitalist.
Fracking has been carried out in Lincolnshire for many years for oil. Where are the riots in Lincs.? None and not an earthquake to be felt.
Perhaps anti-shale protestors should avoid ever travelling on the London Underground. They presumably already avoid travelling by plane, except of course when they are going to attend protests or conferences on climate change.
Doug Elliot:
Subpoena the drill log. Modern directional drilling can hit a target the size of a large handkerchief at several thousand feet.
http://www.aapg.org/explorer/2012/12dec/geosteering1212.cfm
Might not be many bills but there is a shedload of Statutory Instruments passing through Parliament. 4000 a year at the moment IIRC. MPs often let them pass without much opposition or discussion. There is plenty of work for them to do but they choose not to. They want Bills because they get attention.
Some good solid logical comments above but we must not underestimate the capacity of our judiciary to foul things up.
Some good solid logical comments above but we must not underestimate the capacity of our judiciary to foul things up.
Surely the existing mineral rights state of play covers this. All minerals under the ground belong to the Crown. Why do these eejits keep pretending that gas from shale is something different and new?
"repeal the Act , which nationalises ownership of onshore oil and gas resources."
Rubbish ! Think it through, Oil and gas don't respect the boundaries of individuals land , so the practical solution is to say that they live under "our land as a nation". You might think you should have a right to veto what goes on underneath your land.. but that would be against the common good (I like the allegory with airspace).
..You don't have an automatic right to veto renewables when they impact on your view or pollute your property with noise/traffic. so a right to veto shale is a double standard.
.. Granting ownership is a bribe ..surely we don't support that ?
(Haseler Royal Family is English ? I don't think so as they came down from Scotland and took control, not the other away..well until Willam came over from Holland and colonised us (well he had a British royal wife))
@Spen
you missed out "and then bill us for the required repairs"
@Jeremy Poynton
If that were the case then I wonder why Longleat, Duchy o Cornwall, CofE and a motley procession of traditional landowners are shelling out on tens of thousand of solicitors letters (and local rag PR) asserting that their rights trump the oiks presently sat on the land...? However horizontal drilling is a possible solution = the Kuwaiti option.
Cheshirered:
I'm not convinced that nationalisation would help. We used to have a nationalised company or two - BNOC, Britoil and Enterprise - the latter two demerged from BNOC as operating companies. BNOC survived by living off the work of the private industry. It was disbanded after it was discovered to have been cheating the government on royalties to try to hide losses. Shale gas is being developed by relatively small entrepreneurs to begin with - big oil has too frightened by the Greens and government attitudes, and is probably too wedded to its other large scale projects such as LNG. Indeed, they have sold up most of their North Sea interests too, leaving them to nimble smaller companies to squeeze the last drops from old fields. Of course, you could have a state behemoth like the Environment Agency - that really inspires confidence, doesn't it?
People own the land on the surface, they do not own its projection to the centre of the earth. What happens beneath the surface should not affect the enjoyment of the surface property by the owners without the consent of the surface owners, but if the exploitation of subterranean resources can be undertaken without interfering with the surface owners then this should be allowed. The problem with allowing surface owners a right of veto in circumstances where exploitation will not affect them is that it can prevent (often through ignorance) exploitation to the detriment of the local and wider communities.
PS I'm an underground coal mining engineer.
Since the British government confiscated the mineral rights under the surface, surface owners should have no legal standing to claim trespass on lawful drilling or mining below their surface interests.
MikeHaseler. Up to a point. The Trot/Class War/ALF members of the green movement can be very intimidating for most people and they have plenty of time to take part in demonstrations. In the country,it is difficult to keep one's premises secure. Consequently, it is difficult for many law abiding members to challenge the troublemakers. Modern day communications means it is very easy for 100s of troublemakers to descend on a location and cause problems for a few days. The Police appear to allow troublesome protest for a few days and then clamp down on the more undesirable elements. It can be very intimidating for elderly and those with young children. When protesters are speaking to large and fit men , then they are often peaceful.
MikeHaseler. Up to a point. The Trot/Class War/ALF members of the green movement can be very intimidating for most people and they have plenty of time to take part in demonstrations. In the country,it is difficult to keep one's premises secure. Consequently, it is difficult for many law abiding members to challenge the troublemakers. Modern day communications means it is very easy for 100s of troublemakers to descend on a location and cause problems for a few days. The Police appear to allow troublesome protest for a few days and then clamp down on the more undesirable elements. It can be very intimidating for elderly and those with young children. When protesters are speaking to large and fit men , then they are often peaceful.
I shall resist the exploitation of mineral rights under my land until the price is high.
"Landowners would be clamouring to be at the front of the queue to have their land drilled. Those who really objected could sit secure in the knowledge that they were in control of their own destinies."
I suggest you read up on the technology. This is like having people volunteer to have scheduled flights fly over their houses.
Can you imagine how air travel would work if every landowner on an aircraft's flight path could sue for violation of his/her airspace?
Drilling for unconventional gas and oil is more like air travel than coal mining or any other sort of conventional mining. This is why it is better to amend the statute.
How precisely would you prove that drilling was under your property, when its a mile underground..?
DocBud has it correct - in the UK you do not own the stuff beneath your land - you only own the surface. In the US you not only own the mineral rights under your land, but the air above it! Any comparison of US and UK land and mineral rights would have mentioned this. There is simply no legal ground for a challenge to drilling horizontally unless it affects the surface (such as mining subsidence which we have known about and dealt with in the UK for many years).
In general legislation has been historically piecemeal and reactive.
In the old coalmining areas, major landowners used to reserve ownership of minerals when the surface was sold. That enabled them to lease out the underground mining rights for a royalty.
Coal and mines of coal were taken into public ownership under the Coal Act 1938. However postwar developments in opencast mining meant that the strata between the surface and the coal had to be excavated so special rights orders were introduced by statute.Similarly seperate legislation was brought into deal with exploiting our oil and natural gas.
Potential fracking has had old estates dusting off their records for long ago reservations of mineral ownerships. These reservations suddenly have potential great value and thousands of property owners have received applications to register overriding interests from the old estates in recent months. It seems to me that the process of horizontal fracking will involve the disturbace of minerals in ways that the coal, gas and petrol legislations never envisaged so future disputes seem inevitable.
Or charge ground rent . Locals will be well up for that.
@Joe Public: utilities do very much cross private land, and there's very little the landowner can do to stop it - there are statutory rights for all utilities if they invoke them to put water and gas mains, sewers and electricity pylons/cables over or under private land. The landowner is entitled to compensation for damage caused by their construction, and an ongoing wayleave payment, but CANNOT prevent them being installed. While this is an imposition on private property rights, we as a society accept it - everyone gains from utilities, so it would be wrong for one person to prevent millions getting the basics of life. The same goes for shale gas (and oil/coal etc). They are scarce national resources and should not be prevented from being utilised for everyones benefit by a few Nimbys.
[Apologies Hunter, but I have removed all the comments you are responding to. This kind of thing is just going to lead to a shouting match]
Sherlock, The exact location of the wells drilled are measured by law every 100 meters of depth and reported to the authorities, and then put in the public domain. Onshore these are called Pon9b.
See https://www.gov.uk/oil-and-gas-petroleum-operations-notices
I'm surprised that no-one's noticed the utter hypocrisy in the Green's methods here.
Greenpeace has never respected trespass -- they're always barging onto other people's properties (albeit usually commercial) in order to chain themselves up or hang some stupid banner. When Frack Off go onto companies' sites, do you think they are invited? And they don't respect the reverse right either -- to allow people to go where they want on public land without intimidation, given as that would make protests outside fracking sites only a noisy distraction.
When these groups can themselves respect the laws of trespass, then maybe I'll think they have a right to seek to use it legally. Their hypocrisy just astounds me.
If they are going to sue would it not have to be for damages, since it isn't for removal of property or presumably trespass, these having been dealt with in 1934. Might be worth watching the ecofascists trying to find some damage caused by an "earthquake" that can't quite rattle teacups.
Returning ownership to those on the surface sounds ok but land ownership here is in much smaller areas than in the US. I can see protestors saying the pipeline 3,000 ft down might actually be 20 ft to the right/left and thus "might" be under their land and it is up to the mining company to prove otherwise - to their satisfaction.
Bish, I think you have fallen for the Green propaganda.
Gas fracking involves "drilling under people's property"? Who knew? Here was me thinking that they drill one hole, and then fracture the rock horizontally.
But "drilling" sounds much more sinister and dangerous.
johanna,
In some cases, that's exactly how they do it. In most(?) cases though, they drill down a few thousand feet till they reach the play, then turn the drillbit side ways and continue drilling horizontally, sometimes for quite long distances. Until recently, apparently Wytch Farm in Dorset, UK held the record at almost 10km. Doing this maximises the return on each drill and frac.
Here in Australia (where I now ply my trade), the minerals are owned by the individual states. The land is parceled up into mining leases and when a mining company becomes the lessee of one of these leases, ownership passes to the mining company. If the mineral is extracted, royalties are paid to the state. For the current tax year, the government in Western Australia is forecasting about $6 billion in royalty income (about 20% of state income). Queensland will be about half that. The citizens of the 'mining states' do nicely out of their mining industry. The attempt by the last Labor Federal Government to get its grubby paws on some of the so-called 'super profits' through a Mineral Resources Rent Tax was an abject failure.
Laurie, Wytch Farm is an oil field, not a gas fracking site.
That's where I think the confusion arises - horizontal drilling is common in oil extraction, but the Bish's post is explicitly about gas fracking, which is a different process. As I understand it, they drill the hole, install pipes, fracture the rock, and that's it - leaving the little well-heads which we have seen illustrated on other posts here as the only visible sign that they were ever there.