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Thursday, May 22, 2014

What the frack is happening? Legal lessons from the US

[Fracking%2520law%255B4%255D.jpg]Fracking and the Legal Challenges: what can be learned from US precedents and practices
Fracking ventures here are several years behind such developments in the USA. As every country of the world struggles to produce energy resources that are both ethical and at the same time efficient, today is a salutary moment to consider what the UK can learn from the US example.

Fracking is controversial. Its supporters cite its cheapness and contribution to economic expansion. Its critics emphasise its environmental negatives, especially the threat to local water contamination and increased heavy traffic disruption. Economists celebrate its contribution to economic growth and savings in US fuel costs. At this moment, the UK is years behind the USA in exploiting its potential shale gas/fracking resources. However, it seems likely that the same environmental and legal debate will follow the US precedent. This article will consider what lessons the UK might learn from the US precedent.

So why today to ask this question? Only because today it was announced that the latest fracking venture in the UK would be off-shore. Cuadrillo has been granted licences to start fracking off the coast of Lancashire. This might please environmentalists in that it would avoid potential pollution of local water supplies. Equally it might bypass the problems of acrimonious negotiations with concerned local councils, communities and landholders. Controversial cases running through the US courts have pivoted around these issues.

Where fracking ventures in the UK have been on land rather than off-shore, they have met with venomous opposition from local environmental pressure groups. Foremost of these was the example of Balcombe in Surrey in 2013. So strong was the opposition that the venture was abandoned. Also in Sussex is the site of Fernhurst in Sussex. Local residents worry about the pollution effects of increased freight transport on their local network. Residents fear the unknown. Water contamination concerns are cited. These environmental challenges conflict with capitalist and economic objectives. New and cheap energy resources are vital to all economies, be they developing or established. Western economies are searching new and innovative ones. It might be alright for eastern producers such as China to flout environmental concerns. The more sophisticated, established and mature economies of countries such as the USA and the UK cannot be so cavalier.

A survey of litigation and US legal cases about fracking is a large one. The plethora of such cases includes ones from Pennsylvania, Texas, Wyoming, Minnesota, Colorado, West Virginia.. Even an urban area like New York has faced the challenge. The challenge has not only been between environmentalists and growth economists, In the USA most cases have been tried by state courts. However, there have been conflicts between town and county laws, before cases have reached the Court of Appeal.

So what do we need to learn from the US precedent.. Certainly it will be political, especially with a general election pending in 2015 and energy bills looking to be a top manifesto issue. On the whole the Obama administration has supported the environmentalists in this dichotomy. Fundamentally the debate is between environmental and economic issues but politics will play its part. In the final instance the debate will be decided in the courts. Irish litigators will do well to learn from the plethora of US examples that have already explored these issues. However, they must not forget that for them in Ireland,  the precedent and rules for much environmental litigatuin are embedded in European law.

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