Fracking and the Legal Challenges: what the UK can learn from US precedents and practices

Guest PostFracking ventures in the UK are several years behind such developments in the USA. As every country of the world struggles to produce energy resources that are both ethical and at the same time efficient, today is a salutary moment to consider what the UK can learn from the US example.

Fracking is controversial. Its supporters cite its cheapness and contribution to economic expansion. Its critics emphasise its environmental negatives, especially the threat to local water contamination and increased heavy traffic disruption. Economists celebrate its contribution to economic growth and savings in US fuel costs. At this moment, the UK is years behind the USA in exploiting its potential shale gas/fracking resources. However, it seems likely that the same environmental and legal debate will follow the US precedent. This article will consider what lessons the UK might learn from the US precedent.

So why today to ask this question? Only because today it was announced that the latest fracking venture in the UK would be off-shore. Cuadrillo has been granted licences to start fracking off the coast of Lancashire. This might please environmentalists in that it would avoid potential pollution of local water supplies. Equally it might bypass the problems of acrimonious negotiations with concerned local councils, communities and landholders. Controversial cases running through the US courts have pivoted around these issues.

Where fracking ventures in the UK have been on land rather than off-shore, they have met with venomous opposition from local environmental pressure groups. Foremost of these was the example of Balcombe in Surrey in 2013. So strong was the opposition that the venture was abandoned. Also in Sussex is the site of Fernhurst in Sussex. Local residents worry about the pollution effects of increased freight transport on their local network. Residents fear the unknown. Water contamination concerns are cited. These environmental challenges conflict with capitalist and economic objectives. New and cheap energy resources are vital to all economies, be they developing or established. Western economies are searching new and innovative ones. It might be alright for eastern producers such as China to flout environmental concerns. The more sophisticated, established and mature economies of countries such as the USA and the UK cannot be so cavalier.

A survey of litigation and US legal cases about fracking is a large one. The plethora of such cases includes ones from Pennsylvania, Texas, Wyoming, Minnesota, Colorado, West Virginia.. Even an urban area like New York has faced the challenge. The challenge has not only been between environmentalists and growth economists, In the USA most cases have been tried by state courts. However, there have been conflicts between town and county laws, before cases have reached the Court of Appeal.

So what does the UK need to learn from the US precedent.. Certainly it will be political, especially with a general election pending in 2015 and energy bills looking to be a top manifesto issue. On the whole the Obama administration has supported the environmentalists in this dichotomy. Fundamentally the debate is between environmental and economic issues but politics will play its part. In the final instance the debate will be decided in the courts. UK litigators will do well to learn from the plethora of US examples that have already explored these issues. However, they must not forget that for them in the UK the precedent and rules for much environmental litigatuin are embedded in European law.

This article was provided on behalf of Vannin Capital, one of the UK’s leading specialist litigation funding providers.

Flood damage – what can I do?

The UK is slowly emerging from its wettest winter since records began. Many people have had their homes and lives ruined by flood the unprecedented flood waters.

Damage from flooding can be devastating, with the financial loss representing just a fraction of the misery and heartache that victims suffer.

So what are your options if the worst happens and your property floods? More proactively, what can you do to minimise the risk and impact in advance?

What should I do if my property is affected by flooding?
Homeowners are responsible for any repairs that are necessary as a result of flooding. You are also responsible for replacing any belongings that have been damaged as a result.

Following flood damage, you should contact your insurer as soon as possible. All insurance companies keep records of customers, so losing your insurance policy documents in the flood should not prevent you from making a claim. If it's possible, taking photos of the damage (property and belongs) is a very good idea. Contemporary evidence tends to prove invaluable when making an insurance claim.

Your insurer should take care of any repairs that are necessary, as well as making arrangements to replace your damaged belongings. Keeping records of conversations, quotes and the work done by the party making repairs is always a smart move.

If your property is too badly damaged for you to remain there while repairs are made, your insurance company should relocate you to alternative local accommodation (such as B&B or a hotel), although this is dependent on the terms of your insurance policy.

I rent my own property from a private landlord. What are my rights?
Section 11 of the Landlord and Tenant Act 1985 ("the Act") states that it is the landlord who is responsible for most repairs.

Under the Act your landlord must:

• Keep the property’s structure and exterior in a good state of repair. This is the case even if the property was in a poor state of repair when the tenancy started.
• Repair the property when damage has been properly reported.
• Make sure that the property’s supply of gas, electricity and water is maintained.

Aside from the statutory protection, your tenancy agreement may also include other obligations of maintenance and/or repair that your landlord must comply with. Check your tenancy agreement carefully and take legal advice if in doubt. If your landlord fails to carry out their obligations you may be able to bring legal action against them for breach of contract.

I am a Council or Housing Association tenant. What rights do I have?
Local authorities and housing associations (private registered provider of social housing ("PRPSH") or registered social landlord ("RSL")) have a legal duty to repair damage and disrepair in your property. Section 11 of the Act, discussed in outline above, also applies to PRPSH / RSL.

It is dangerous to remain in my property. What can I do?
Guidance on potential health and safety hazards for tenants is available. The 'Housing Health and Safety Rating System - Guidance for Landlords and Property Related Professional' sets out what is classed as a hazard. You can view this information here.

If you believe remaining in your property represents a hazard but your housing provider will not move you to alternative accommodation, you should contact your local environmental health department. They, with the help of the guidance, will determine if they need to take enforcement action against your landlord.

In the case of Council and Housing Association tenants, your housing provider should provide you with suitable alternative accommodation if you are unable to remain in your property whilst repairs are being carried out.

There is no such right for private tenants. If you have to leave because you cannot safely remain in the property, you should ask your landlord to terminate the tenancy agreement or to suspend the rent on until you can move back in.

If you are forced to leave your property and you have nowhere else to stay, you may be able to make a 'homelessness application' to your Local Authority. If you are considered to be in serious need, you should qualify for suitable accommodation until you can go back to your own property.

In addition, you may be entitled to claim a crisis loan. Crisis loans are interest-free loans from the Department of Work and Pensions (offered on a discretionary basis) and intended to help with expenses in emergency situations. For flood victims, crisis loans can be used as advances on rent for alternative accommodation or for everyday necessitates such as clothing and toiletries.

Crisis loan applications can be lodged, and in urgent circumstances approved, over the phone.

Good preparation can make all the difference when flood waters start to rise. Here are some points to bear in mind.

Insurance
It is highly advisable to have appropriate insurance on your property and the contents. Make sure you read your policy carefully! If in doubt, seek legal advice as to the policy's suitability for your circumstances. Sometimes the policy small print excludes certain types of claim. For instance, if you live within a certain distance of a river or flood plain your policy may not cover you for flood damage. Keep your insurance policy documents in a safe place, preferably in a waterproof folder. It's also a good idea to have copy securely backed-up online.

Take steps to protect your home
There are numerous practical steps you can take to help protect your home from flooding. The Environment Agency ("EA") website features a ‘flood plan kit’ which you can download. Tips include ensuring your gas and electricity supply is safely turned off and thinking in advance how you can best save as many possessions as possible (such as taking items upstairs or safely stacking smaller pieces of furniture on larger ones). Ensuring you have a safe means of escape should the flood waters rise is vital, too.

Stay Informed: get to know the flood warnings
The EA might issue one of three different warnings when an area may be affected by flooding:

1. Flood alert. This is the lowest grade of warning and means that flooding is possible and residents should be prepared.

2. Flood warning. The intermediate grade. Flooding is expected and immediate action by residents is required.

3. Severe flood warning. This is the most serious grade and means that severe flooding is expected and there may be a danger to life.

Sign-up for flood warnings
If you sign up to the free Floodline Warnings Direct, you can be sent a direct message when flooding is expected which may affect your property.

Social media may also prove invaluable in staying up to date with flood warnings for your area (assuming it is safe to either use your smartphone or some other appropriate communications device).

HSE uses intervention powers to inspect workplace cooling towers

Sponsored Post

In recognition of the risk of Legionnaires’ disease associated with workplace cooling systems, the Health and Safety Executive (HSE) plans to inspect around 5000 sites with such systems over the next 6 months.

A cooling system may consist of a cooling tower, evaporative condenser or other cooling element, together with the associated pipe work, heat exchanger, pumps, supply tanks and pre-treatment equipment.

Legionellosis is the collective name given to the pneumonia-like illness caused by legionella bacteria. This includes the most serious Legionnaires’ disease, as well as the less serious Pontiac fever and Lochgoilhead fever. Legionnaires’ disease is a potentially fatal form of pneumonia and everyone is susceptible to infection. However, people over 45 years of age, smokers, heavy drinkers, those suffering from chronic respiratory or kidney disease and anyone with an impaired immune system are at the greatest risk.

The bacterium Legionella pneumophila and related bacteria are common in natural water sources such as rivers, lakes and reservoirs, but usually in low numbers. They may also be found in purpose-built water systems such as cooling towers and evaporative condensers.

There is a reasonably foreseeable legionella risk in water systems which:

• have a water temperature between 20–45 °C
• creates and/or spreads breathable droplets, e.g. aerosol created by a cooling tower, or water outlets
• stores and/or re-circulates water
• is likely to contain a source of food for the organism, e.g. presence of sludge, scale or fouling

As a result, the conditions found in workplace cooling systems can allow naturally-present bacteria to grow considerably, thereby increasing the risks of Legionnaires ’ disease. Consequently, it’s vital to take precautions to manage the risk of a serious bacteria outbreak developing.

The HSE’s intervention programme has come about as a result of concerning numbers of Legionnaire’s outbreaks over the last decade. Fostering greater awareness of the risk associated with workplace cooling systems is very much at the heart of the programme.

The HSE advises workplaces which have cooling towers or evaporative condensers to should put in place suitable measures mitigate the risk of legionella. Information on the way to manage these risk are described in Legionnaires’ disease: The control of Legionella bacteria in water systems.

This document outlines the requirements for all workplaces to follow in respect of their cooling systems which present a Legionnaires’ risk. It includes information on the commissioning, operation and maintenance of cooling systems, what steps can be taken to combat the presence of high levels of legionella bacteria, and details suitable monitoring systems and processes which can be deployed.

Remedial measures taken to guard against Legionnaire’s disease do not necessarily mean the relevant cooling system must be replaced.  For example, Covac's Tank Relining allows for an existing water tank to remain in use and brings with it the assurance of the Covac brand.

Environmental liability regulations every business should know about

Guest PostAll businesses have environmental responsibilities and these were made a legal requirement by the Environmental Liability Regulations 2009, which came into force in June 2009. It is essential that businesses make themselves aware of these regulations and the kind of impact their activities will have on the environment.

Environmental Liability Regulations
These regulations introduced in 2009 bring English law into line with the European Commission's Environmental Liability Directive. The main aim of these regulations is to improve and prevent damage caused by the effects of business on water, land and biodiversity.

The way they are implemented is based on the principle that the polluter should always pay. The regulations aim to achieve this by holding businesses financially liable for actual damage or potential damage to the environment. This puts the onus on businesses to foot the bill for any damage caused, or for the cost of preventative measures rather than on the taxpayer. The Regulations refer to businesses as "operators of commercial activities" and insists that they implement precautionary measures where appropriate to avoid damage to the environment and to take action if damage does occur. Environmental solicitors can provide useful definitions and advice on the more complex areas of environmental law, as can the relevant authorities.

Environmental damage defined
The Regulations define environmental damage according to three main categories: water damage, land damage and damage to species and habitat.

Water damage occurs when the ecological and chemical status of surface water or ground water deteriorates. Land damage applies to any contamination of land that poses a threat to human health. Damage to species and habitat occurs when protected species and natural habitats are damaged, especially if there are negative and significant effects on maintaining the optimum conservation status of these species and their natural habitats.

Pollution incidents and severe cases
There are existing laws in place covering day-to-day environmental incidents and the Regulations apply to incidents that cause significant environmental damage or threats. The Regulations list in Schedule 1 which incidents and their causes will be deemed to come under significant environmental damage. Most incidents involving pollution to not result in long-term water damage and damage-to-land incidents are also considered to be rare. Businesses should consult the Regulations for detailed information.

The reach of the Regulations extends to the UK seabed, taking in the Continental Shelf Act 1964 limits and the Renewable Energy Zone waters extending to around 200 miles out to sea. They also apply on land in England.

Environmental Authorities
The primary enforcing authority for biodiversity damage is Natural England. The other main authorities are the Environment Agency, the Marine Fisheries Agency and a range of local authorities.

If your business and its activities have caused actual damage to the environment, or you believe there is a threat, then it is essential that you do all you can to prevent damage or future damage. It is also crucial that you contact the relevant authority and notify them of the situation so that the necessary steps can be taken.

The primary objective of the Regulations is obviously to protect the environment, but they also aim to make businesses accountable by enforcing the polluter pays principle. The Regulations do cover incentives for businesses to prevent environmental damage. If a business owner is in any doubt about the effect of their activities on the environment, they can seek valuable advice from experts in this field, including environmental solicitors and the relevant authorities.