Andreas Späth

SA's new fracking regulations are flawed

2013-12-30 08:00

When Susan Shabangu, the Minister of Mineral Resources, published a set of proposed technical regulations  to cover the practice of hydraulic fracturing or fracking in the Government Gazette in October, many concerned South Africans breathed a cautious sigh of relief.

The regulations looked pretty comprehensive, addressing all of the worries various critics of the controversial technology had raised, including such crucial issues as water use and waste disposal. If fracking was going to happen in the Karoo or elsewhere in the country, at least it would happen safely, without damage to the environment.

Unfortunately that feeling of relief may have been somewhat premature. At the beginning of December, the Cape Town based Centre for Environmental Rights (CER) published its own assessment of what the minimum requirements for safe fracking regulations should be.

Making the point that “inadequate regulation of mining, and negligible compliance monitoring and enforcement, has had and continues to have significant negative impacts on the environment in South Africa” – think acid mine drainage in Johannesburg, for example – this well-reasoned document outlines what would be needed from a legal, regulatory, monitoring and administrative perspective to prevent fracking from adding to the country’s existing environmental problems.

What should make us sit up and take notice is the CER’s conclusion that, compared to its own stated requirements, the minister’s proposed fracking regulations are “inadequate and flawed”. Several criticisms stand out:

- Instead of defining legally binding obligations to hold fracking companies accountable, the CER finds that the government’s proposed regulations merely read like guidelines which “make no provision for the creation of offences and penalties for violations of these guidelines”.

In other words, Minister Shabangu’s rules don’t define how companies that break them, for example by negligently causing water contamination, would be punished.

It’s instructive to consider what’s happening elsewhere in the world in this regard. British environment minister Dan Rogerson has recently rejected calls to legally require fracking companies to take out a bond to be set aside to pay for any unforeseen pollution costs. Under current UK regulations the money needed to clean up any pollution caused by fracking companies that go belly-up will have to come from public coffers. Will the same be the case in South Africa?

- According to the CER, the government’s proposed regulations neither provide for adequate public access to environmental, performance or compliance information from fracking operators, nor offer effective means for public participation in the fracking debate.

- Rather than basing our regulations on the best international standards, the CER points out that the government’s proposed regulations “rely solely on industry standards published by the American Petroleum Institute (API), a US trade association for the oil and natural gas industry”.

That much is clear from Shabangu’s introduction to the gazetted document, in which she declares the intention to prescribe not to best international practices and regulations, but to “good international petroleum industry practices and standards”. Read: we’ll let the companies who will be doing the fracking decide what the best practices and standards are.

Again it pays to consider the situation elsewhere. In the US, an immensely powerful lobby led by some of the world’s largest and most profitable oil and gas companies continues to spend millions of dollars every year to significantly influence the regulations that govern its fracking operations. In essence, the industry has managed to write many of the rules of the game itself. Shabangu’s proposed regulations would appear to amount to the same thing.

So even if you think that fracking is a positive thing as long as it happens in a safe and responsible manner, I would strongly urge you not to assume that Minister Shabangu’s proposed regulations will guarantee such an outcome in any way, shape or form.

- Andreas is a freelance writer with a PhD in geochemistry. Follow him on Twitter: @Andreas_Spath
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