Comment and Analysis

Fracking issues require new laws

David Fig

Existing legislation does not address the legal, environmental and social ramifications of fracking, says David Fig.

Fracking may harm farming in the Karoo and 70 000 workers could be affected if farms fail because of it. (Les Stone, Reuters)

Hydraulic fracturing, or fracking, involves high-pressure drilling into deep underground rock formations to mine for shale or methane gas. The drilling is vertical until it reaches the relevant rocks, when it will become horizontal. A mixture of water, toxic chemicals and sand is pumped into the rock and the gas released by enlarging small fissures is pumped back to the surface.

Huge quantities of water are used in the drilling: an estimated 1 500 truckloads or about 25-million litres for each drilling. The water will have to be trucked in, because it is not available in the areas designated for fracking, mainly in the Karoo basin. Up to 30% of the water will remain underground and be subtracted from the hydrological cycle.

The chemicals are potentially hazardous and will have to be managed scrupulously. Up to 8% of the shale gas will escape in the process and enter the atmosphere, creating a problem for climate change. Methane is a greenhouse gas 28 times more lethal than carbon dioxide.

The moratorium on fracking is still in place. A likely scenario is that the interdepartmental task team report commissioned by the minister of mineral resources will be passed on to the Cabinet, which may decide to lift the moratorium. Then the regulator, the Petroleum Agency of South Africa, will grant existing applicants – Royal Dutch Shell, Challenger and Falcon – permission to explore.

The applicants will begin to frack immediately to establish whether the shale gas production is viable. Under existing mining laws, exploration can occur for up to nine years and an exploration right is usually converted easily to a production right.

Administrative flaws
Because of environmental and social factors, there are a number of administrative flaws in this process that the minister should correct before this scenario plays out.

First, shale gas recovery falls under the existing mining laws, namely the Minerals and Petroleum Resources Development Act of 2002, which is a bad idea. People who make their livelihoods in the Karoo rely entirely on underground water for their survival. The risk of contamination is high – "the fracking liquid will contaminate the groundwater; there is no doubt at all", according to the University of the Free State's Gerrit van Tonder, a professor of groundwater studies (Daily Maverick, June 15).

Mismanagement of the toxic chemicals would have major impacts on environment, health and agriculture.

Trucking in fresh water, sand and chemicals to each well will cause immense dust pollution from the gravel roads of the Karoo. Because fracking has such obvious effects on the environment and was not foreseen in 2000 when the Act was written, it is imperative to write a new Act to cover the specifics of the shale gas industry to ensure it does minimal harm to the fragile Karoo environment. The minister of water affairs should also look at strengthening the protection of underground freshwater resources, which is not adequately covered in the Water Act.

Under the minerals and petroleum Act, the regulator is also a national agency to promote the oil and gas industry. This is a clear conflict of interest. These functions should be separated immediately. There is an urgent need for a separate, independent regulator for shale gas extraction.

Robust process
The law is also weak on environmental protection. Currently, the applicant has to do an environment management programme report within 120 days of applying to explore. But it is impossible to come up with a robust scientific analysis of risks – and plans for the mitigation of risk – in that time. Presentations to the public on the Shell application have happened, but not in the case of the other applicants.

In any case, the environment management programme report process is outmoded. It is regarded as a watered-down version of an environmental impact assessment, a more robust process. The departments of mineral resources and environment previously agreed that in future mining would be subjected to environmental impact assessments instead of in-house environment management programme reports. The environment department has taken the steps necessary to make this possible, but the mineral resources department has dragged its feet, and sabotaged the change.

The less stringent environment management programme report process will apply to fracking. But because fracking is such a risk to the environment, it is imperative that more robust assessment processes must prevail.

In practice, there needs to be a strategic assessment after the exploration phase so that future problems can be recognised and steps to mitigate them put in place. There should be no automatic conversion to a production right without a significant independent assessment of the impacts of exploration.

And what of the costs that the fracking industry will pass on to the taxpayer and to local industries?

A provincial function
Farmers in the Karoo have said they believe fracking and agriculture are incompatible. Water contamination and dust pollution could cost the Karoo its reputation for purity, ruining the reputation of products such as Karoo lamb. The minister should ensure that, to minimise dust pollution, the fracking applicants pay to tar the roads they will use to deliver water, sand and chemicals to the wells. This cost should not be passed on to taxpayers, nor should it jeopardise existing livelihoods in the region. If farms fail in the Karoo, 70 000 workers will be affected.

Hazardous waste management under South African law is a provincial function. Fracking will occur mostly in the Eastern and Northern Cape, among the poorest provinces in the country. They have few facilities for the management of hazardous waste, which will require immense resources to contain that from shale gas exploitation. Facilities will have to be put in place and people trained to manage them.

These costs should be borne by the industry and not passed on to the taxpayer. The polluter-pays principle, enshrined in our environmental legislation, should apply and needs to be negotiated before the moratorium is lifted.

Before beginning production, the industry should also be made to sponsor epidemiological baseline studies in the concession areas to establish the health status of the local population before any fracking takes place. This would allow continuous assessment and monitoring to establish the industry's role if the health of local inhabitants is affected. The industry should also be prepared to compensate proven victims.

When the department of energy researched the country's optimal energy mix, no account was taken of the potential of shale gas. The integrated resource plan 2010 did not include any mention of unconventional gases.

Constitutional prerogative
But the plan is meant to be updated every two years. There is currently no attempt to produce an integrated resource plan 2012 and it is unclear how the state plans to integrate shale gas into energy planning. The process is meant to be transparent and participatory, but there has not yet been any consultation with the public and affected parties.

There has been no formal public debate on the shale gas industry. Instead, the industry will come to life the minute the moratorium is lifted and the regulator approves the ­applications for exploration. This flies in the face of our ­constitutional prerogative for ­transparency as well as for public participation in decision-making.

The impacts of this industry will be long-standing. Fracking will compromise our supply of fresh water. It may contaminate the Karoo's fragile resources and do away with livelihoods. It will add to problems of global warming and climate change. It will extend South Africa's dependence on fossil energy rather than encouraging the use of renewables. Therefore, the industry needs much more public debate.

The government should not hand over control of our resources without applying the highest standards of monitoring and the most robust initiatives for environmental, health and livelihood protection. The moratorium should not be lifted until there is substantial agreement on these proposals.

David Fig is honorary research ­associate at the environmental evaluation unit, University of Cape Town


 The people must have a say

The Southern Cape Land Com­mittee is a non-governmental organisation established in 1987 to support communities fighting against forced removals. We continue in the democratic era to promote equitable land redistribution and support farm dwellers and emerging farmers in the Eastern Cape and central Karoo.

Fracking in the Karoo is an important issue. The perception that fracking is confined to a struggle by white farmers seeking to retain the status quo and obstruct job opportunities is simply not true. Fracking will affect us all, especially in a water-scarce country such as ours.

We call on the government to ensure the meaningful participation of all our people, facilitated by nonpartisan institutions. We call for the extension of the moratorium on fracking to enable citizens to make an input.

How is fracking going to help our country to address skewed land ownership, or will it further compound the problem? What jobs will fracking create, for whom and how many? We believe that fracking will not address the gap between rich and poor.

What are the risks to our precious natural resources and how will this affect future generations?

We call on all South Africans to urge the government not to fall for the empty promises of multi­national companies. We call on progressive civil society ­organisations to work to protect our natural resources.

We demand that the participation process explores alternatives to shale gas. Our future is not for sale. – Phumi Booysen, on behalf of the Southern Cape Land Committee

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