Has the extraction of gas and oil had impacts on the environment and human race? How has the law been impacted by this. In your answer, focus on EU Law

It goes without saying that the extraction of gas and oil has had numerous effects to the environment and the human race. These effects of the extraction process have a big impact on the global environment that is seen in climate change[1]. Pollution from petroleum extraction activities has been seen to have hazardous effects on the marine environment. Particularly in the North-East Atlantic,[2] there has been a significant amount of damage to the marine ecosystem hence there is a need to ensure that there is some form of international regulation to ensure that the marine life does not suffer any further damage.[3]

There are many international treaties that try to regulate the United Kingdom Continental Shelf. These treaties include the United Nations Convention on the Law of the Sea (UNCLOS)[4], the London Convention of Prevention of Marine pollution by dumping wastes and other matter, the Convention for the Protection of the Marine Environment of the North East Atlantic (OSPAR Convention)[5], the Oslo Convention for Prevention of Marine Pollution by Dumping from Ship and Aircraft and the European Environmental Protection Directives.[6] These are just a few of the international treaties that were put in place together with the European directives for protection of  the environment and the national environmental protection laws enforced in the UK to ensure that the environment is protected in the North-East Atlantic.[7]

 The interaction of the OSPAR, UNCLOS, EU and UK Laws and Regulations

 All the regulatory frameworks that have been mentioned above have their own specific roles in the protection of the marine environment. Nonetheless, it’s important to note that there is a protocol that distinguishes them. There are principles that are highly influential and others that are less influential and superimposed at the national level in the UK. However, to a great extent, it would be right to make a generalization that the environmental protection laws in the UK are somewhat a representation of the ideas in the OSPAR, UNCLOS and directives of the EU.

Let’s take a look at the representation in the committees that govern each of these regulations. Basically, representation in the committees is generally interconnected.[8] The OSPAR committee should have representatives from not less than 15 Governments in the western coast of Europe. It should also have a fair representation of the European Commission (EC). The UK is a member of the European Union (EU), which is represented by the EC. As such, everybody in a way takes part in protecting the environment in the North-East Atlantic.[9]

It’s true that membership in the EU is voluntary. However, it requires that all states that would like to join should ensure that their laws and regulations are in harmony with any directives and regulations from the EC. This way, the treaties and regulations from the EC that call for compliance by all members are in a way binding to the member states. On the other hand, directives can be termed as guidelines for the member states to use as they make their legislation.[10]

In this regard, the international framework doesn’t take any of the states’ power to protect the environment. In fact, this power is enhanced by ensuring that every member state is accountable for what happens in their territories.

1.1            How UNCLOS (1982) is involved in the Protection of the Environment and the Monitoring and Control of UKCS.

The UNCLOS took effect in the UK in 1997.[11] It gives all the responsibilities of the UK when it comes to passing regulations and laws[12]that are aimed at protection of the marine environment from activities surrounding exploration and extraction of oil and gas.

While there is no direct link between the roles of the UN and the implementation of the UNCLOS, the UN is the one that establishes the International Seabed Authority (in charge of exploration in sea beds), the International Maritime Organization (in charge of implementation of measures against dumping by large water vessels) and the International Whaling Commission.

1.2            The Duty of Decisions of OSPAR in Protection of the Environment, Control and Monitoring in the UKCS

The Oslo convention on dumping waste at sea (1972) was replaced by the OSPAR convention in March 1998. The Paris Convention on land based sources of marine pollution (1974) was also replaced in the process. As a result, the OSPAR convention is currently the main instrument that aims at achieving some sort of legislation in the region after the ecosystem approach.[13]

The North East Atlantic’s duty to protect the environment from the OSPAR convention is implemented by the OSPAR convention.[14] In essence, the OSPAR Convention comes with a series of provisions[15] that employ the application of several principles. These principles include:

• The Precautionary Principle
• ^§    The Polluter Pays Principle
• Best Available Techniques(BAT)
• Best Environmental Practice (BEP)
• ^§    Including Clean Technology

This way, the OSPAR convention provides a platform where the commission[16] that was created by the OSPAR convention can adopt decisions that are binding and therefore useful.[17] It also enhances the participation of observers such as NGOs in the commission. There is also the issue of the rights of access to information surrounding the maritime area.

The main obligation of this commission is to take note of any threats that could be facing the marine environment and coming up with solutions that will combat all these challenges.[18]

The OSPAR commission is tasked with gathering information concerning any threats to the marine world, establishing priorities in the course of action, developing goals and reviewing the progress against these developed goals. Any areas that have suffered severe damages would need to be restored.

The EC works together with the OSPAR commission to ensure that follow up is done on a regular basis to ensure that there is implementation of all the commitments from the North Sea Conference. This is done by assessing and checking the quality of the seas. This way, the OSPAR commission plays a vital role in ensuring that governments cooperate in efforts to achieve better results in the protection of the highly affected North-East Atlantic.

Recently, new ventures have been made into gas exploration that can be termed as “unconventional” with the government of Denmark giving tax incentives for any oil or gas explorers that are ready to explore in the old ‘brown’ fields. However, gas and oil production in areas such as the Barents Sea in the OSPAR maritime area will need some extra legislation that is left on the hands of the OSPAR Commission and the EC.

1.3         Functions of the EU Directives when it comes to Environmental Protection, Control and Monitoring in the UKCS

When it comes to the rules and regulations that are set for the protection of the marine environment from the effects of pollution from the exploitation of hydrocarbons, ED members chose to transfer competences to the EC in line with the provisions that the EC adopted.[19] This has come up with an Environmental Action Programme that sets out a platform that enhances effective environmental legislation and matters related to the policies involved.[20]

The legislation of the EC in the UK is mainly effected by acts of Parliament and the concerned statutory instruments. With this in mind, most of the offshore regulation in the UK lies in the regulation of the European Union.³⁵ The EC has to make sure that all the European Union laws are applied in all member states. This prescriptive nature is prevalent to the extent that the commission can take legal action if need be to ensure that the laws are enforced like in the case where a country chooses not to report the measures it has taken to ensure that all the EU directives have been incorporated in the national law or when a country has been suspected to have breached any European Union treaty, regulation, provision or directive.

More details about the effect of every piece of EC Legislation and the requirements involved from the time of issuing exploration licenses all the way to the time when decommissioning takes place will be discussed according to any relevant Laws and Regulations that govern offshore oil and gas activates in the UK.

1.4         The Duty of UK National Laws in Protection of the Environment, Control and Monitoring in UKSC

In the UK, there is a vast legal framework that enhances environmental protection in marine environments. This framework covers the entire process. There is the preventive mechanism before the production or exploration license is given, safety, health and environmental protection mechanism as the operations are being carried out all the way to the decommissioning.This framework is supposedlyamong the most modern and complicated systems in the world. This is as long as the imposing of obligations will continue to be taken seriously by regulators and there is a high potential for the industry succeeding.[21]

The UK offshore industry’s regulation comes from two bodies. First, there is the HSE that’s responsible for ensuring that all risks to safety and health in offshore industries on the UKCS are properly regulated. The second body is the Energy Development Unit in the Department of Energy and Climate Change (DECC). This unit is charged with regulating gas and oil activities in the UK by giving licenses, creating an effective environmental regulatory framework for the region and ensuring that all the concerned parties comply with the set regulations. This includes the approval of emergency plans that could be used in cases of oil pollution. The body has been in operation since 1992.[22]

1.4.1 Licensing Phase

In order for the 85/337/EEC Environmental Impact Assessment to be effectively implemented, the United Kingdom had to enact some sort of regulation. This is where the Environmental Impact Assessment Regulation came from. It ensures that any possible effects on the environment caused by any new development are carefully considered and understood prior to the approval of the new development.[23]

The Petroleum Licensing Regulations for exploration and production on both seaward and landward areas of 2004 and 2008has given the minister the power to give licenses to explorers to start drilling wells or to abandon any wells that have more harm than good on the environment subject to DECC’s confirmation that environmental regulations are being followed.This is the regulation that ensures that all licensees are obliged to take every necessary step to ensure that the escape of petroleum or any waste from the process into the exploration area is prevented. This regulation also ensures that no flaring takes place,[24]conservation of all living resources is done and that they don’t fail to notify the Maritime and Coast Guard Agency and the Minister.This regulation also gives the minister the authority to authorize the inspection of any such installations and analyzing the current state of repair in the exploration process. The minister has the power to enforce any necessary action by making a request to the licensee for them to carry out any necessary works and if need be to revoke their license.[25]

The Offshore Petroleum Activities Regulation of 2001[26] that aims at enforcing the EC Directive 92/43/EECis responsible with protecting and conserving particular species and habitatsfrom offshore industry activities that are potentially harmful. A good example is the shallow drilling and seismic surveys.In consultation with the public and the Joint Nature Conservation Committee, the Secretary of State ensures that the company that will carry out assessment to see if there is any activity that is likely to have a significant negative effect on the site. If this doesn’t happen, the company will not get the license. Participating in these offences will attract a fine or even a conviction.

The Offshore Petroleum Production and Pipe-line Regulation of 1999 that aims at implementing EU Directive 85/337/EEC gives the regulation that ensures that any offshore oil or gas activity is assessed and the results of this assessment are submitted to the DECC prior to licensing.[27] It also aims at increasing public access to information and allows for a bigger participation of the public in the decision-making processs.

In the Coast Protection Act of 1949 and the Food and Environment Protection Act of 1985, companies need to have a license before they can be allowed to make any deposits on sea beds. The only exception is if they have been exempted by the Deposits in the Sea Exemptions Order 1985 SI 1985/ 1699.

The Marine Works Regulation of 2007 that implements Council Directive 85/337/EEC ensures that there is a framework for doing an assessment of the impact on the environment of any exploration activity in the oil and gas industry in the UK marine environment.

1.4.2 After Licensing

Merchant Shipping Act of 1995 and the Merchant Shipping Regulation of 1998[28] ensures that all the operators of offshore installations submit emergency plans in case of oil pollutionto the Secretary of State two months before the commencement of drilling operations. These emergency plans have to be reviewed in five years time from the time of submission and give 3 months notice should there be any major changes to be made. Failure to comply with this constitutes an offence.

Section 3 of the Pollution Prevention and Control Act 1999 and the Offshore Installations Regulation of 2002 that aims at enforcing the EC Directive 96/82/EC gives the UK Government the ability to intervene in the event of accidents that cause pollution in offshore installations.

The legislation that is in charge of setting limits and ensuring that atmospheric pollution does not take place is the Merchant Shipping Act of 1995 and the Merchant Shipping Regulation of 2008.[29] These two give a legislation that not only sets limits but also ensures that all emissions from vessels and any other platforms that operate in the marine environment are prohibited. There is also the Offshore Combustion Installation Regulation of 2001, that ensures that any combustion installations are assessed and qualified. The Petroleum Licensing (Production (Seaward Areas) Regulation of 2008 which was mentioned earlier together with the Energy Act of 2008 providing for the National Emission Ceiling Regulation of 2002 ensures that gas flaring is not don until there is a written consent.

The Petroleum Act of 1998 ensures that any construction or unauthorized use of pipelines is prohibited. The Secretary of State is charged with the duty of authorizing this use of pipelines. Any company that does not adhere to these guidelines faces prosecution.

1.4.3 During Decommissioning

Offshore decommissioning has been catered for in years in UNCLOS, Geneva Convention on Continental Shelf, Petroleum Act and the OSPAR Decision (98/3).  These conventions make it mandatory to remove all the installations that are subject to derogations by giving permits for all the installations that have been placed earlier than 1999.[30]

2. The concept of Over Regulation

Exploitation of hydrocarbon resources that are found offshore in sensitive and hostile environments is generally an activity that is hazardous thanks to the high potential of causing massive environmental damage on top of potential loss of lives. Unfortunately, owing to the economic benefit of the activity, it is a necessity and also very important for enhancing cooperation between regulatory authorities and the industry to ensure that the risks are kept at a minimum.

The regulatory and legal framework in the UK is mainly created from obligations that have been imposed by the EC’s and other international decisions that are legally binding. A fair share of this framework also comes from the country’s own enactments.

This brings us to the question: is it possible for this framework to eventually end in over regulation? The answer is yes and this is mainly because of the overlapping and complimentary nature of the framework where sensitivity to detail in the industry’s lifespan is enhanced by regulations. While it would be true to point out that there are stringent laws and regulations in the UK, it’s important to note that the alternative could be worse as evidenced in countries like Russia, Nigeria and Ecuador.There is also the extreme side that can be evidenced by the prescriptive framework that is employed in the US that can be considered as over-regulation.

The regulatory regime in the UK is advantageous in the sense that it sets safety measures, allows the consultation and involvement of the industry and other stakeholders before licensing is done and before any piece of legislation is passed. Satisfaction and understanding of the strict procedures is also mandatory.

3. Environmental Legislation in Norway and Regulations in the Country’s Continental Shelf.

Just like the UK, Norway is a member of the European Community. However, it is not a member of the European Union, party to the UNCLOS and the Continental Shelf Convention. The North Sea is split between the UK and Norway hence Norway also has the right to a section of the petroleum deposits in the sea complete with all the right to exclusively manage and develop petroleum resources. Despite the fact that both UK and Norway have somewhat similar regulatory and legal frameworks when it comes to the protection of the marine environment from pollution from petroleum extraction activities, Norway is renowned for having oil and gas activities that represent good practices environmentally for production offshore in the North Sea. This is mainly due to the management regime for the Norwegian sea being based on the ecosystem.

The legislative framework for petroleum activities in Norway is implemented by the Norwegian Coast Guard, a number of related ministries and is covered in the Petroleum Activities Regulations of 1997 and the Petroleum Activities Act of 1996. These two cover everything between applying for licenses for exploration and production and decommissioning of structures. They also provide for the liability of damage from pollution.The Nature Management Act from 2009 is also applied in the Norwegian maritime zones. It aims at preserving biodiversity, geology and landscapes. The Planning Act; [31] 2008 Marine Resource Act and a number of similar restrictions are applied to the petroleum industry in Norway’s continental shelf. This is provided for in the 2005 Working Environment Act.

The license for exploration is given by the Ministry of Petroleum and Energy. It is given to legal or natural persons that have been domiciled in an Exclusive Economic Area or European Union for seabed and subsoil exploration.¹⁰¹ In line with EU requirements, production licenses are issued and development plans are shown before the license is given.

Decommissioning is governed by international laws that have been gradually incorporated into domestic law.i.e. OSPAR, MARPOL.

Norway asserts jurisdiction over foreign vessels especially when it comes to safety and the protection of the environment, something that is not there in the UK. All installations on the continental shelf that have something to do with petroleum activities are also subject to Norwegian jurisdiction.The industry in Norway is very innovative when it comes to technologies that have been created for the purpose of marine environmental protection. A good example is gas extraction and shipping vessels.

Owing to the fact that Norway is yet to enact legislation on its move to the arctic in accordance with the 2008 Ilulissat Declaration,any challenges that could possibly arise will establish if it was successful in environmental protection and petroleum development goals.

Conclusion

In conclusion, the legal framework for environmental protection of marine environments in the UK is wide and very specific at all stages of the lifespan of industries. Nonetheless, owing to the theoretical regulatory and legal framework, overlapping regulation is still prevalent though when compared to countries like Nigeria and Ecuador, this framework is sufficient. However, the simple yet effective legal framework employed in Norway makes it comprehensive for the public, government and the industry.
Bibliography

OSPAR Decisions

•  OSPAR Decision 98/3 on Disposal of Disused Offshore Installations

•  OSPAR Decision 2OO2/2

•  OSPAR Recommendations 2OOO/4, and 2OOO/5

EU Legislation

•  EC Directive (85/337/EEC) as amended by E C Directive (97/11/EC) on Environmental Impact Assessment

•   E C Directive 92/43/EEC on the conservation of natural habitat and of wildlife fauna and flora

•   EC Directive 92/43/EEC, a site hosting a priority natural habitat type of priority species

•  Fullerton D, ‘Guidelines for Preparing Economic Analyses: Regulatory and Non- Regulatory Approaches to Pollution Control’ 2010

•   Maitland G, Offshore Oil and Gas in the UK: An Independent Review of the Regulatory Regime (2011)