Fracking review suggests UK has softened precautionary principle since leaving EU – here’s why it matters

The UK government recently conceded that the reasons for its 2019 ban on hydraulic fracturing “have not gone away,” and there is “no compelling evidence” to support rethinking it. Better known as fracking, this industrial process injects millions of gallons of water underground at high pressure to release fossil gas from rocky pores

The moratorium was prompted by a series of tremors at the UK’s lone fracking rig in Lancashire. Cuadrilla, the operator, was scheduled to seal off its wells in March 2022.

Yet, a month later, the government permitted a scientific review of the safety of fracking in the UK. Cuadrilla obtained a one-year extension to prove that its operations are safe for the environment and public health. The company hopes to eventually resume its operations pending a positive outcome from the review.

The government defends its decision by saying that it wants to keep “all possible energy generation and production methods on the table” since Russia’s invasion of Ukraine has caused a rise in global oil and gas prices. It admits, however, that fracking would not provide a “solution to near-term (gas) pricing difficulties”. Fracking is unlikely to ever produce enough gas in the UK to ease soaring energy bills.

The decision to reopen the possibility of fracking in the UK marks a departure from European Union regulations now that it is no longer a member of the bloc. The UK appears poised to emulate environmental regulation in the US, where fracking has caused significant harm.

Brexit and the precautionary principle

The precautionary principle is a legal approach that allows regulators to restrict or prohibit the use of a technology even if the environment and health risks related to the technology are uncertain.

After leaving the EU, the UK adopted its own environmental legislation in 2021. It later released a draft environmental principles policy statement proposing that, while applying the precautionary principle, UK regulators “should only prevent or defer an innovative development where that risk outweighs the benefits”.

This proposed interpretation of the precautionary principle echoes the American understanding, that takes into account the financial impact of restricting or banning a technology before regulating it.

Before Brexit, the UK implemented the precautionary principle through EU law. The EU version regulates an environmental risk even if the likelihood of it happening is slim. Or, it puts the burden on the operator to show that the activity is safe.

Critics argue that this approach stifles innovation, as operators will baulk at the cost of scientifically demonstrating the safety of their technology. On the other hand, the American approach may allow lucrative technologies to permanently damage the environment and public health before the inherent risks are clear. Despite mounting evidence of environmental harm, including drinking water contamination and greenhouse gas emissions, fracking is still exempt from several precautionary regulations. For instance, fracking waste is still not regulated as hazardous waste. Corporations are not required to apply for permits disclosing waste disposals under US federal law.

The UK’s proposed version of the precautionary principle drifts from the European “better safe than sorry” approach and towards the cost-centric American one. The Office for Environmental Protection, a UK public body established under the 2021 environment legislation, criticised the government’s draft version of the precautionary principle for its “unusual emphasis on innovation, which may detract from the principle’s core aim of managing risk in the face of scientific uncertainty”.

On April 20 2022 Jacob Rees-Mogg, minister for Brexit opportunities and government efficiency, scoffed at the stricter application of the precautionary principle, saying that “if we followed the precautionary principle to its logical extent, we would never go into either our kitchens or our bathrooms”.

Mounting evidence of risks

Fracking continues to pose risks. Particularly so in the UK, where dense rocks make tremors likely during water injection. Up to 3.5 million gallons can be injected at each well, generating huge amounts of wastewater, which typically contains a highly combustible greenhouse gas called methane and radioactive material. The UK simply does not have the capacity to handle the radioactive waste if several fracking wells are operating at once.

Since late 2019, when the UK last conducted its scientific review of fracking, several studies have found an increase in airborne radioactivity within a 20-kilometre radius of fracking sites, a direct effect of fracking on infant health, pregnant people and children, and pulverising of the Earth’s bedrock which releases uranium. The UK government, while permitting the recent scientific review of fracking, did not mention these developments.

The UK has yet to finalise its post-Brexit interpretation of the precautionary principle, but its decision to soften the fracking moratorium aligns with its draft version of the cost-centric definition. This could pave the way for regulatory decisions which prioritise potential financial benefits over the risks to the environment and public health.

The UK’s shifting stance on fracking is not just a reaction to the energy crisis, but rather, a strong indication of its post-Brexit march towards a riskier society.

Shashi Kant Yadav receives funding from the Faculty of Arts and Social Sciences at University of Surrey

Rosalind Malcolm does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

Source: TheConversation