Official investigation into “fracking”

This article first appeared in Energy News on 13 April 2012.

The announcement last week by the Parliamentary Commissioner for the Environment, Jan Wright, that she will be investigating the environmental issues surrounding hydraulic fracturing (fracking) provided little detail on how the investigation will be conducted.

However some guidance as to what might be expected can be found through the Commissioner's powers under the Environment Act 1986, as it is section 16 of the Act which gives the Commissioner the power to investigate in circumstances where the environment may be or has been adversely affected by the acts of any person. 

The controversy around fracking has gained increased exposure after studies linked it with drinking water contamination and earthquakes.

In carrying out her investigation, the Commissioner is likely to have particular regard to:

  • whether fracking is likely to increase pollution or the chances of natural hazards, and
  • all reasonably foreseeable effects of fracking – whether adverse or beneficial, short term or long term, direct or indirect, discrete or cumulative.

The Commissioner will have extensive information gathering powers, including the power to:

  • require any person to give information and produce documents on matters relating to fracking, and
  • summon any person before the Commissioner and examine them on oath.

Section 24 of the Act provides that any person who refuses to comply with a request for information, makes a false statement or attempts to mislead the Commissioner will be liable on summary conviction to a fine up to $1,000. 

The Commissioner is aiming to complete the investigation and produce a report to Parliament before the end of the year. 

No findings or recommendations made in the report will be binding.  The Commissioner may, however, recommend preventative measures or remedial action should she find fracking to be environmentally damaging.

Although the words ‘inquiry’ and ‘investigation’ have been used interchangeably in the media, investigations are less formal than inquiries and are launched at the Commissioner’s initiative.  Only Parliament can order an inquiry.

An interesting question is whether the Commissioner will be required to comply with the principles of natural justice and carry out the investigation in a fair manner – for example, ensuring that any third party is given the right to be heard if the final report will damage that party’s reputation.

The reason why this is not entirely clear is that section 22A of the Act provides that “no proceedings, civil or criminal, shall lie against” the Commissioner “for anything she may do or report or say in the course of the exercise... of her duties... unless it is shown that she acted in bad faith”.  However, the trend of the courts has been to interpret these types of sections narrowly in order to preserve the court’s jurisdiction to judicially review breaches of natural justice.

Our thanks to Victoria Heine and Linda Clark for writing this article. Victoria Heine is a Partner and Linda Clark is a Solicitor at Chapman Tripp. Victoria is a member of Chapman Tripp’s energy team, and leads the firm’s public law team. Linda is also a member of our public law team. Both Victoria and Linda understand the business of government and offer strategic and tactical advice to ensure clients’ interests are represented both before laws are passed and later when they are applied. 

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