Regulatory Domain and Regulatory Dexterity: Critiquing the UK Governance of ‘Fracking’
| Published date | 01 November 2016 |
| Date | 01 November 2016 |
| Author | Elen Stokes |
| DOI | http://doi.org/10.1111/1468-2230.12226 |
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Regulatory Domain and Regulatory Dexterity:
Critiquing the UK Governance of ‘Fracking’
Elen Stokes∗
This article provides a critique of the UK government’s regulatory response to ‘fracking’. It
shows how government has adopted two distinct schemas of regulation, which may usefully
be classified under the headings ‘regulatory domain’ and ‘regulatory dexterity’. These schemas
rely on very different interpretive conventions and are in many ways contradictory. Yet,
government uses both ‘domain’ and ‘dexterity’ arguments simultaneously in order to advance
its policy in favour of fracking. The article explains how two seemingly different regulatory
approaches work together towards the same policy goal, and highlights the role of law in
facilitating technological development.
INTRODUCTION
This article examines the topical and divisive matter of the United Kingdom
(UK) government’s regulation of ‘fracking’. Fracking (shorthand for ‘hydraulic
fracturing’) is a controversial drilling technique used to extract previously
inaccessible fossil fuels. Reports suggest that the UK has significant onshore
resources of shale gas,1which are now easier to exploit by employing fracking
and which offer the possibility of a cheaper, cleaner, and more secure energy
supply. As a result, moves are afoot to increase the rate and scale at which
fracking takes place. This has met with strong public opposition,2but current
government policy (and that of the previous Conservative-led coalition
government) is decidedly in favour of developing the UK’s shale gas industry.
In pursuit of this policy, government has adopted two distinct strategies or
‘schemas’ of regulation, which the article conceptualises as ‘regulatory domain’
and ‘regulatory dexterity’. ‘Domain’ and ‘dexterity’ provide alternative vantage
points from which to view regulation and make use of distinct sets of inter-
pretive conventions. They adopt different scales of analysis (abstract/concrete);
∗Reader in Law, Cardiff Law School. Earlier versions of this article were presented at events at the
Universities of Cardiff, Kent, and Southampton – I am grateful to the participants for their many
helpful suggestions. Additional thanks are owed to Chris Hilson, Orr Karassin, Robert Lee, Richard
Lewis, Ambreena Manji, and the two anonymous referees for providing insightful and constructive
comments on an earlier draft. Views, errors, and omissions are my own.
1 Department of Energy and Climate Change (DECC), The Unconventional Hydrocarbon Resources
of Britain’s Onshore Basins – Shale Gas (London: DECC, 2013).
2 ‘How Summer Fracking Protest Unfolded in Sussex Village’ BBC News 17 April
2014 at http://www.bbc.co.uk/news/uk-england-sussex-26765926 (last accessed 22 June
2016); W. Jordan, ‘Public Opposition to Fracking Grows’ You Go v 19 May 2015 at
https://yougov.co.uk/news/2015/05/19/opposition-fracking-britain-grows/ (last accessed 7
June 2016); J. Halliday, ‘Protesters Urge North Yorkshire Councillors to Vote Against Fracking’
The Guardian 23 May 2016.
C2016 The Author.The Moder n Law Review C2016 The Modern Law Review Limited. (2016) 79(6) MLR 961–986
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Regulatory Domain and Regulatory Dexterity
rely on different characterisations of technology (analogous/dissimilar);
locate regulation differently in space (multilevel/national) and time (continu-
ity/change); focus on different aspects of regulation (broad coverage/specific
inadequacies); and lead to different regulatory responses (defending against
reform/introducing new tailor-made legislation). Government simultaneously
invokes both schemas, even though they seemingly contradict each other.
These contradictions are examined in detail. An approach based on ‘regu-
latory domain’ involves analysing regulation in the abstract. It entails taking a
synoptic view of the regulatory landscape and looking at regulation as a whole,
rather than the individual parts of it. Government maps the general regula-
tory regimes applicable to fracking, providing a simplified illustration of the
great expanse of legal provision. Because fracking is treated as analogous to
conventional drilling technologies, it is said to fall within the remit of existing
regulations on the protection of health and the environment. These are areas
of shared competence between the European Union (EU) and Member States,
and so fracking is subject to regulation at multiple levels. Government is satis-
fied that together, EU and UK regulations cover fracking, and that because the
regulations are high in number and broad in scope, they can be regarded as ad-
equate.3Consequently, government has rejected proposals for new legislation
on the basis that the UK already has ‘the most robust regulatory regime in the
world for shale gas’.4With the emphasis on the continuity of existing legislation,
the UK has defended against reform for fear that additional rules for fracking
would stifle technological development and industrial growth. Describing the
government’s position, former Minister of State for Energy, Michael Fallon,
stated: ‘we are absolutely opposed to further regulation in this particular area’.5
Contrast this with what I term ‘regulatory dexterity’, which involves the
reverse. Unlike ‘domain’-type responses which defensively demarcate areas
already covered by regulation, ‘dexterity’ is prompted by concerns over the lack
of specific legislation and the corresponding need for reform. It prioritises the
need to act quickly and with precision in adapting to changing technological
circumstances. Rather than viewing regulation in the abstract, ‘dexterity’ has
a narrower focus on concrete legal rules. In this case, government singles
out rules governing finance, planning permission, and access to land. Within
the confines of these rules, shale gas activities are seen not as analogous to,
but as dissimilar from, conventional fossil fuel extraction. This opens up the
possibility of fracking-specific regulation. Finance, planning permission, and
land access, to the extent that they relate to the choice of energy provision, are
areas of Member State competence in which the EU has no power to act – and
so they involve the exercise of national jurisdiction. Here, instead of giving
blanket assurances of broad regulatory coverage, government looks to specific
3 This article was written before the EU referendum. The irony that the UK government sees
EU regulations as foundational in this context does not go unnoticed.
4 DECC, ‘Shale Gas Health Review by Public Health England’ 31 October 2013
at https://www.gov.uk/government/news/shale-gas-health-review-by-public-health-england
(last accessed 13 November 2015). See also HC Deb 16 September 2015 vol 599 cols 35-
37WS.
5 Economic Affairs Committee, The Economic Impact on UK Energy Policy of Shale Gas and Oil:
Oral and Written Evidence HL 172 (2014) 163.
962 C2016 The Author. The Modern Law Review C2016 The Modern Law Review Limited.
(2016) 79(6) MLR 961–986
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