Court ruling a major blow for fracking industry

File photo: AP Photo/Brennan Linsley

File photo: AP Photo/Brennan Linsley

Published Jul 5, 2019

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Cape Town – In a major setback for the fracking industry, the Supreme Court of Appeal (SCA) has found that the exploration for petroleum by fracking should not take place until such time that it is lawfully regulated.

The SCA also found that, due to a multi-ministerial agreement, Mineral Resources Minister Gwede Mantashe had been divested of the power to make regulations regarding environmental matters.

The SCA yesterday dealt with a consolidated matter, in which it

dismissed an appeal by the minister against a decision of the Grahamstown High Court and allowed an appeal by the Treasure the Karoo Action Group and Afriforum against a decision of the Pretoria High Court.

The principal ground for review was that the minister had no power to make the petroleum regulations.

Between 2008 and 2010, three entities had applied for rights to explore for shale gas in the Karoo through the use of hydraulic fracturing or fracking.

The minister had established an interdepartmental task team to evaluate the potential environmental risks posed by fracking and the social impacts of shale gas exploration.

The task team recommended that a monitoring committee be constituted to augment the regulatory framework on the exploration for and production of petroleum, including shale gas.

It also recommended that, once these preceding actions were completed, the fracking would be authorised under strict supervision of the monitoring committee. In September 2012, the Cabinet approved the recommendations of the task team and, in June 2015, the minister promulgated the petroleum regulations.

Subsequently, the ministers of Environmental Affairs, Mineral Resources and Water Affairs

entered into an agreement, the One Environmental System, making

provision for the management of the environmental impacts of activities under the Mineral and Petroleum Resources Development Act, 28 of 2002 (MPRDA).

It envisaged that all environmental aspects of exploration for and production of petroleum would be regulated through one environmental system, under the National Environmental Management Act 107 of 1998 (Nema).

The SCA held that the implementation of the One Environmental System agreement through amendments to the MPRDA and Nema divested the Minister of Mineral Resources of the power to make regulations regarding environmental matters.

The SCA held that it was not

practical to separate the good from the bad and, accordingly, that the petroleum regulations must be set aside in their entirety. It held that exploration for petroleum by fracking should not take place before such time that it was lawfully regulated.

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