Undermining Devolution at Depth: The Implications for the Devolution of Environmental Powers of the Infrastructure Act 2015 and the Practice of Hydraulic Fracturing

摘要

It is not hyperbolic to state that the process of hydraulic fracturing or "fracking" has become one of the most controversial methods of hydrocarbon extraction in the world.~2 Alongside other sources such as the oil sands of Alberta, Canada and drilling within the Arctic circle, it has become known as an "extreme energy" source and emblematic of our continued reliance on oil and gas for energy and material production. ~3 There is considerable debate amongst States internationally about the validity of using such sources, and indeed the use of oil and gas at all, particularly in relation to energy production. These debates also come at a time when pressure on the use of plastics, the production of which is reliant on hydrocarbon supply, is at its utmost. As such, the question of whether we should be using such sources at all or striving to wean ourselves from this multi-faceted resource is at the forefront of policy debates the world over. This complex argument is, however, not exclusively supranational. The policy of devolved governments in the UK varies on the utility of hydrocarbon resources found in shale rock formations and the validity of opting to extract them. Policy variance, the nature of the hydraulic fracturing extraction process and existing legislative provisions regarding its licensing have inadvertently created a standoff over the use of these oil and gas resources. This is one which might be broken by undermining (literally and metaphorically) powers devolved to the Welsh Government by that in Westminster. This piece hopes to outline the nature of this potential loophole which emerges from legislation created to assist in the development of hydraulic fracturing projects in the UK. Following from this, it will consider the wider issue of the inadequacy of the existing regulatory framework for these projects which this loophole highlights. Finally, it assesses what is needed to ensure that this complex and fragmented licensing process does not result in an abuse of environmental justice, as well as the powers constitutionally afforded to the devolved Government of Wales.