- Article rank
- 19 Oct 2017
- Business Day
- Charlotte Mathews Energy Writer firstname.lastname@example.org
The government has been sent back to the drawing board over regulations intended to manage shale gas exploration.
Preliminary exploration for shale gas in the Karoo, in the hope of finding quantities of gas that would fundamentally alter the South African economy, has begun. Three companies applied for exploration permits: Bundu Gas & Oil, Falcon Oil & Gas and Shell Exploration. The permits allow seismic and exploratory drilling only.
If exploration turns up viable shale-gas resources, it would be followed by hydraulic fracturing or fracking, a controversial extraction method that can pollute the environment and particularly scarce water resources if it is not properly controlled.
To enable shale-gas exploration, the Department of Mineral Resources published its petroleum regulations two years ago. They deal extensively with the steps needed to prevent environmental damage.
In a judgment in the Eastern Cape High Court on Tuesday, Judge Gerald Bloem ruled that the regulations were invalid.
In June 2013, two years before the petroleum regulations were published, section 107 of the Mineral and Petroleum Resources Development Act, which allowed the minister to make regulations related to the environmental aspects of prospecting for minerals and petroleum, was repealed. This was part of the introduction of the “One Environmental System”. Under that system, only the minister of environmental affairs can make regulations relating to the National Environmental Management Act and the minister of water affairs in relation to the National Water Act.
Judge Bloem also upheld the applicants’ argument that proper procedures were not followed. Schedule 1 to the regulations, which set out the substances that may not be used during fracking, was excluded from the proposed technical regulations published for comment.
David Msiza, acting directorgeneral of the Department of Mineral Resources, argued that the applicants were biased as they wanted to protect their existing privileged positions in the Karoo.
Judge Bloem said this was irrelevant since Msiza had not disputed expert testimony on the potential environmental dangers of fracking.
Msiza also argued that the ministers of environmental affairs and water affairs should have been joined in the action. Judge Bloem said this was unnecessary since the Department of Mineral Resources had drawn up the regulations.
Attorney Derek Light, who acted for the applicants, said the judgment did not mean there would be no shale gas exploration or fracking. It meant the government was being compelled to follow proper processes in developing the legislation.
His clients had pushed hard for the government to conduct a strategic environmental assessment and to study SA’s technical readiness for shale gas extraction, both of which had been done, he said.
The studies highlighted that the country lacked the technical skills for fracking and the capacity to monitor and enforce regulatory compliance, Light said.
The government was ordered to pay the costs of the group of Karoo farmers.