UK: Increased Public Scrutiny Of Oil And Gas Offshore Activities

Two new sets of UK regulations have amended existing regulations with the main intention of creating greater public involvement in decisions concerning offshore activities. This is achieved by increasing the level of information that is disseminated to the public, both in terms of what they are told and where this is published. Consequently, those involved in offshore oil and gas activities can expect a higher degree of public scrutiny of the environmental effects of their activities.

The regulations in question, which came into force last month and amend previous sets of regulations from 1999 and 2001 respectively, are:

• the Offshore Petroleum Production and Pipelines (Assessment of Environmental effects) Amendment Regulations 2007 (the "Petroleum Regulations").

• the Offshore Combustion Installations (Prevention and Control of Pollution) (Amendment) Regulations 2007(the "Combustion Regulations").

The Petroleum Regulations govern the provision of licences for the drilling of wells, extraction of petroleum, and erection of a structure in connection with such a development. The Combustion Regulations provide for a requirement to obtain a permit to operate a combustion installation (i.e. any technical apparatus in which fuels are oxidised to use the heat thus generated, therefore including gas turbines and equipment on platforms that make use of such apparatus). Both sets of regulations aim to monitor and regulate the environmental impact of offshore activities, generally requiring the Secretary of State to take environmental statements into account when considering applications. The amendments give effect to EU directive 2003/35/EC, which provides for the public participation in respect of plans relating to the environment.

The involvement of the public is increased in the following ways.

In Respect of Both Sets of Regulations:

• Where previously the Secretary of State only had to provide notification of certain decisions through the Gazette, this must now also be done by any other means that the Secretary considers appropriate including electronic communications.

• New provisions apply to projects in ‘transboundary areas’. This means tidal waters and parts of the sea adjacent to the UK from the low water mark up to the seaward limit of territorial waters and designated areas of the continental shelf and the seabed and subsoil beneath these, but excluding the tidal waters and parts of the sea adjacent to Scotland from the low water mark to the seaward limits of the territorial sea and the subsoil and seabed beneath. In respect of these areas, where a project in an EEA State is likely to have a significant effect on the environment, the Secretary of State can request to participate in the consultation procedure of that member state. The Secretary of State must also bring this information to the attention of the public.

In Relation to the Petroleum Regulations:

• When the Secretary of State reaches the decision that no environmental statement is required in respect of an application for consent, he can no longer just communicate the fact of this decision but must now also explain the contents of the decision and any conditions attached, the main reasons for the decision, and a description of the main measures required to be taken to offset major adverse effects on the environment. Previously, this was only required in respect of the grant of consent in respect of certain projects.

• In respect of both types of notifications (i.e. decision not to require an environmental certificate and to give consent) the Secretary of State must now include a summary of representations made to him in respect of the project in question, together with details of how those representations were taken into account.

• Previously, when making a notification that a project was to be exempted from the Regulations, the Secretary of State just had to specify what information regarding this decision would be made available to the public. Now, the Secretary of State must require that all information relating to the main effects that the project is likely to have on the environment is made available to the public and state the manner in which it is to be made available.

In Respect of the Combustion Regulations:

• When the Secretary of State receives an application for a permit, this fact should now be notified in an electronic communication if appropriate. Moreover, there are new requirements for the content of the notice: it must state if the application is subject to an environmental impact assessment and the nature of possible decisions in response to the application. Additionally, the Secretary of State must ensure that any additional information is made available to the public and allow them to make representations on this.

• When the Secretary of State considers that a permit should be revised due to an increase in emissions, he must now publish a notice stating this view and setting out the process by which people may make representations.

• The Register of Permits kept by the Secretary of State must now contain details of public participation in the decision-making process including a summary of the concerns expressed and a reason for the decision.

The above measures are likely to increase the level of public scrutiny and debate that surrounds applications for offshore licences and permits, and the decisions made by the Secretary of State. The amendments represent a new presumption in favour of providing information to the public, and actively informing them how this information can be obtained. The move away from simple Gazette notices will mean that members of the public who were not previously aware of developments that might affect the environment will become engaged in the decision-making process. Members of the oil and gas industry should therefore expect to have to at least continue if not enhance the rigour of their proposals to meet the challenges of possible intergovernmental involvement in the decision-making process as well as an increased level of awareness (and potential opposition) from members of the public.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

The original publication date for this article was 25/05/2007.