The Constitutionality of Fracking in the Karoo and the Carbon Lock-In Effect
South Africa is exploring the idea of exploiting shale gas in the Karoo Basin in order to curb its dependence on coal-generated energy. The expectation is that shale gas extraction could act as a critical catalyst in terms of the countryâ€™s energy demand crises as well as promote industrialisation and economic growth whilst serving as a greener alterative to coal. It endeavours to do this through an extraction process known as hydraulic fracturing or â€œfrackingâ€. Fracking is an example of a human activity contributing towards two negative environmental impacts namely climate change and the carbon lock-in effect. Fracking is proposed to take place in the Karoo basin, which consists of a vast and arid landscape with unforgiveable terrain and low development.
Shale gas extraction is considered a large-scale development process, and with any large-scale development arguably comes some form of environmental degradation, which thus implicates the environmental right, entrenched in section 24 of the constitution. Section 24 mandates environmental governance in South Africa by placing a duty on all spheres of government to take reasonable steps to promote conservation, prevent pollution and environmental degradation as well as ensure sustainable development for present and future generations. In order to establish good governance in terms of s24 there rests a positive obligation upon the government to make decisions that would ensure environmental protection on the one hand and sustainable development on the other.
In terms of carbon lock-in, consideration must be given to the Mineral Energy Complex (MEC) of South Africa â€“ this is a concept that outlines the form of a countryâ€™s capital growth associated with its large-scale mineral extraction, energy provision and socio-economic development. South Africaâ€™s history of mineral extraction can be used to illustrate this concept, gold was found underground but because it was so deep it could not be exploited. Therefore machinery was required to reach the gold as well as to drill and process the ore that was an energy intensive procedure. Ultimately the demand then generated a demand for power stations and contributed to a positive reinforcement between demand and supply. In essence this positive reinforcement has created a long-term commitment to the use of coal-fired energy. Therefore South Africaâ€™s MEC from the past provides itself as an example of carbon lock-in due to its considerable carbon emissions which were generated as a result of such coal-fired energy demand. Another aspect of lock-in is that it is extremely costly to put such infrastructure in place. Therefore the infrastructure associated with the resource has to operate for a long time in order for the investors to receive a return on investment. The lock-in effect thus closes off any other viable renewable energy resource alternative.
Private oil and gas companies have undertaken to conduct the fracking process in the Karoo. Many have applied for exploration rights in this regard. However in 2011 the Minister of Mineral Resources, declared a fracking moratorium on the approval of exploration and production rights. This moratorium did not include companies that had already applied for exploration rights before the moratorium, which meant that existing applicants were exempted. The moratorium was imposed in order to attain more information surrounding the fracking procedure as well as to conduct economic assessments with countries that already successfully utilize shale gas in their markets.
In September 2012 the Department of Mineral Resources lifted the fracking moratorium in anticipation of the release of Investigative Report on shale gas in South Africa. The Report commented on proposed exploration regulation and provided that the current legislative framework supplement the proposed one. However important matters like infrastructural demands and precise quantifications thereof were not comprehensively determined but merely treated as ancillary matters. This is a cause of concern due to the fact that fracking is an energy intensive technique, which requires considerable infrastructural development to take place in order to be remotely beneficial to the country. As such the Minister of Environmental Affairs in 2015 announced the commissioning of a Strategic Environmental Assessment (SEA) of all aspects of shale gas mining. It is hoped that the SEA will provide a thorough scientific and environmental exercise that will adequately inform the government in making appropriate and reasonable policy in this regard.
The infrastructure needed for fracking to take place requires large-scale development, as it is believed that the Karooâ€™s shale rock reserves are located at a depth of 4 kilometres (km). It is this massive centralised infrastructural development that the South African government believes will help create jobs, aid industrialisation and economic growth whilst still promoting ecological sustainable development as envisaged by section 24 of the constitution. However, the precise quantification of frackingâ€™s infrastructural demands in the Karoo have not yet been adequately analysed in order to permit authorisation in either the exploration or production phases.
South Africa has no history of shale gas infrastructure. A further setback is the fact that the Karoo is a water scarce semi-desert area characterised by sparse vegetation and vast dry open areas. Little to no infrastructure exists in the Karoo as the land is mostly utilized for farming and tourism. The infrastructure therefore required for fracking sees private companies with exploration rights having to build pipeline and road infrastructure inter alia from the ground up. This type of infrastructural development will require thorough Environmental Impact Assessments (EIAs) in terms of the National Environmental Management Act (NEMA) as well as considerable financial investment. A development of this proportion contributes to a long-term commitment to the use of shale gas, which lock us into further fossil fuel dependence. Furthermore climate change remains pertinent and unlikely eradicated in the context of fracking as it is predicted that in 20 years shale gas will have a higher greenhouse gas footprint than coal. This then contends that oversight of this crucial infrastructural dilemma conflicts with the constitutional environmental obligation entrenched in s24 regarding the right to â€˜secure ecologically sustainable developmentâ€™.
In writing this paper it is my intent to showcase that the authorisation of fracking in the Karoo without first affording sufficient consideration to its carbon lock-in effects, is unconstitutional. I aim to achieve this by focusing on the concept of the carbon lock-in effect in Part II, and explaining how the process of fracking contributes to being locked into a fossil-fuel based energy system. In Part III, I consider the environmental right entrenched in s24 of the constitution and consider the governmentâ€™s obligations that flow from this right in terms of its decision-making. Then in Part IV, I consider the infrastructural demands that are required in order to facilitate the fracking process as well as the relevant legislative frameworks that are currently being utilised in order to legally enable these infrastructural demands. Finally Part V provides that the authorisation of fracking without adequate consideration of its harmful lock-in effects is not compliant with s24 of the constitution.
II CARBON LOCK-IN EFFECT
The concept of carbon lock-in is pertinent to the authorisation of fracking in the Karoo. It is a multi-dimensional concept that refers to a self-disseminating tendency to remain unchanged. In the carbon context this tendency is created through long-term commitment to fossil-fuel based energy systems that prevent public and private efforts to introduce alternative energy technologies. The phenomena of climate change and the concept of carbon lock-in are interrelated in the sense that effective climate change mitigation will involve a shift from carbon emitting energy sources toward more renewable and sustainable resources.
- Climate change
Climate change policy is focused on the continuous changes in the earthâ€™s general weather conditions as a result of global warming. Global warming refers to the rise in the temperature of the earthâ€™s surface. In recent years the rise in the earthâ€™s surface temperatures have increased at alarming rates, such increase primarily comes as a result of the increased concentration of greenhouse gases (GHGs) in the atmosphere. GHGs consist of carbon dioxide, methane and nitrous oxide, which are emitted largely as a result of human activities such as burning of fossil-fuels. The rapid acceleration of climate change surpasses the ability of all types of ecosystems to adapt, which ultimately affects their ability to function effectively. Eco-systems are of considerable importance for present and future generations as they provide essential services to society namely food, fresh water, wood and fuel inter alia. The conservation of eco-systems and biodiversity are imperative to the maintenance of these essential services, which ultimately underpins a fundamental pillar for sustainable development.
- Understanding the carbon lock-in effect
Carbon lock-in cancels out prospective options of alternative carbon saving technologies despite their environmental and economic advantages. A practical example of this can be seen in South Africa and the United States for instance where coal is used as a cheap source of energy in order to meet energy demand. Although coal is the most effective source to meet demand it is also the biggest contributor to green house gas emissions. Regardless of its sizeable greenhouse gas footprint, millions are still being ploughed into the construction of new coal-fired power stations in South Africa. This then commits us to use that power generated from the new power stations and subsequently inhibit the discovery of alternate renewable energy options.
The construction of power stations for instance with regards to coal requires massive centralised infrastructural development. Fracking will also require large-scale infrastructural development and consequently contribute to the carbon lock-in, as the concept is frequently associated with infrastructural development of this magnitude. The infrastructural investment is extremely costly and thus contributes to a positive reinforcing loop between the demand and supply, which further enhances fossil-fuel dependence. The reason for this is that in order to supply the energy demand to ever expanding communities, infrastructure must be built accordingly as the demand for such power grows. This then locks us into using that energy source for a long period of time in order to realise a return on the investment made.
Carbon lock-in is not a permanent condition but should however be understood as being persistent or long-term. It is not permanent in the sense that it creates systematic barriers to more significant carbon-saving alternatives. If these barriers are overcome then this will provide a sufficient basis to explore alternatives. Government and society at large have failed in attempting to combat climate change which thus results in the carbon lock-in therefore it can be seen that climate change and carbon lock-in are inextricably linked. Previous scientific uncertainty surrounding climate change provided itself as the reason for incompetence on policy inaction on the subject. However climate change is an observed real phenomenon, which can be witnessed all around us through the erratic weather conditions and melting of the ice caps.
The effects of environmental degradation as a result of fossil-fuel use are documented to be greater than zero and on the rise daily. Yet governments contribute to environmental degradation issues by awarding state subsidies and unreasoned authorisations to large-scale infrastructural developments, instead of correcting and adequately addressing policy failures. Human induced climate change occurs predominantly in industrialised societies where production and consumption of humans are at its highest. Climate change in these societies is primarily due to a positive reinforcing loop, which consists of meeting the customerâ€™s demands for services through utilisation of fossil-fuel based energy sources. The carbon and greenhouse gas emissions as a result of meeting the consumerâ€™s demands through the application of fossil-fuels are vast and detrimental usually occurring from transport and electricity centres.
Melissa Powerâ€™s however contends that the solution to climate change and a carbon-reduced future involves â€˜greening the gridâ€™. Greening the grid centres around regulators improving the electricity system and the infrastructure associated with it. The electricity grid consists of a series of wires linking the countryâ€™s energy sources to its consumer and linking them to the legal and regulatory schemes, which ultimately links itself to distribution and rates. She documents that the grid as it stands is not green, however in order to change it and make it green a transition to more renewable energy sources would need to occur which entails looking into viable alternatives to coal. The transition involves an implementation of strategies, renewable energy incentives and subsidies.
- Illustration of carbon lock-in: Medupi and Kusile
The construction of Medupi and Kusile served to respond to South Africaâ€™s power shortage, which was brought about by increased economic growth and population expansion. The Medupi Power Station Project is envisaged to be one of the biggest coal-fired power stations in the world and thus the answer to South Africaâ€™s power debacle. Medupi will be large enough to adhere to national power needs as well as neighbouring countries. The Medupi project was granted approval in 2006 and set to cost R32 billion. The construction of both Medupi and Kusile were predicted to take up to 10 years. However with the enactment of subsequent legislation such as the Infrastructure Development Act this prediction was reduced to down to 8 years. It is estimated that Medupi and Kusile will emit around about 60 million tons of carbon dioxide annually due to transport needs and the burning of coal. Power stations contribute to rapid environmental degradation through their carbon emissions and extensive use of precious water resources. Therefore governmentâ€™s own environment policies seem to be contradicted as the construction further institutes a lock-in to fossil-fuel dependence and a commitment to the use of the expensively constructed infrastructure.
III SECTION 24 OF THE CONSTITUTION
Every decision that may impact on the environment must be considered against the directives of s24. Section 24 has various components to it and is argued to reflect both characteristics of a fundamental human right in subsection (a) and that of a socio-economic right in subsection (b). For the purposes of this paper I will solely focus on s24 (b) (iii) in considering the constitutionality of fracking. Section 24 (b) (iii) states that â€˜everyone has the right to have the environment protected, for the benefit of present and future generations through reasonable legislative and other measures that (iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social developmentâ€™.
The philosophy of rights acknowledges a â€˜rightâ€™ as an entitlement that goes with obligations. Therefore wherever there are rights, the government is under an obligation to ensure that those rights are realised. In context, s24 thus entrenches the environmental right; more specifically s24 (b) (iii) contains directive principles, which impose a positive obligation on the government to make appropriate decisions that ensure for the protection of the environment. Section 24 makes use of the term â€˜reasonable legislative and other measuresâ€™ therefore it is pertinent to this discussion to adequately underpin the reasonableness enquiry as the courts have interpreted it.
Reasonableness forms the basis of the standard of compliance which government obligations are measured. Although no single meaning can be attributed to reasonableness in South African public law, many socio-economic rights cases have extrapolated this concept and have said that reasonableness must be understood in the context of the Bill of Rights as a whole. The purpose of conducting a reasonableness enquiry is to attempt to strike an appropriate balance between the need for government to ensure that constitutional obligations are met on the one hand, and recognition that government must be given the space to decide the best possible way to meet such obligations.
The recognition that government must decide the best way to meet its obligations reflects the institutional role of the courts in holding government accountable. The courts contend that the legislative and executive branches of government have the primary task of formulating policy for realising rights thus it is up to them to investigate environmental, social and economic conditions in realisation of such rights. The court may not take over the function of government to formulate and implement policy.
Therefore under the reasonableness enquiry if the government takes no steps to realise the right then the courts will intervene and require action. If government adopts measure that are considered unreasonable then the courts will review such measures in order to meet constitutional objectives. However as was noted in Grootboom a court considering reasonableness will not have to enquire into whether more favourable options could have been utilised or whether public money could have been spent more effectively. But rather the pertinent question is whether the measures that have already been adopted are reasonable. Government could perhaps adopt a number of possible measures to meet its positive obligations but only if these measures meet the reasonableness standard will the requirement of reasonableness be met.
Grootboom also expounded on the obligation that the government has to act in order to achieve the intended result, further if any legislative measures are to be reasonable they will have to be supplemented by sound well-reasoned policy implemented by the executive. The policy should be reasonable from its inception right through to its implementation. Reasonableness is considered more stringent than rationality, which is one of its 2 constituent legs, it is so because reasonableness is a standard that is triggered when the fundamental rights under the Bill of Rights are limited by legislation. Thus in these cases courts have more of an active role in upholding the rights in the BORs, however a limitation to such right may be justifiably limited in terms of s36. A rational connection test is done in order to determine whether there exists a rationally objective basis justifying the legislatures conduct. Reasonableness has 2 legs to it namely rationality and proportionality, which will now be discussed.
Rationality requires that a decision be made rationally and supported by the evidence and reasons before the decision-maker. In the context of this essay, in terms of adopting new energy choices and trying to make rational decisions thereof, substantive detailed evidence of the actual resource (shale gas deposits) would need to be provided in order to consider its viability before any subsequent fracking authorisations are made. Evidence would also include investigations and precise quantifications of the developmentâ€™s infrastructural demands. Infrastructure would need to be in place before any such production is authorised in order to ensure that these processes comply with certain environmental framework legislation for instance regarding water use and waste storage facilities. Mere estimations or envisaged regulations are not enough to warrant a rational decision. Further, a development of such large-scale proportions must be considered in light of those who will be affected by it. Therefore this involves the accounting for present and future generations, a rational decision will include taking cognisance of that fact that it will not only affect the present but future as well.
Rationality arguably contains subsets to it, on the one hand it is about evidence and making an informed decision but it goes beyond that in a sense that it requires a rational connection (nexus) between the evidence put before the decision-maker and the empowering provision. Rationality is asking whether there is a causal link between the means used and the ends sought to be achieved. As such the means used must be carefully constructed in order to achieve the ends or the objective.
The environmental right is interesting because it has an almost inbuilt rationality test in regards to s24 (b) (iii). This section exhibits that the government has an obligation to â€˜protect the environment for present and future generations through ensuring ecologically sustainable development and use of natural resources whilst promoting justifiable economic and social development. This then entrusts upon the government the obligation of balancing between social, economic and environmental dimensions of sustainable development in order to arrive at a rational decision. Sustainable development is central to the environmental right as well as environmental regulation, as such it is pertinent to address what this means in context. The interrelationship between the environment and development is prevalent within the environmental right. Section 24 (b) (iii) balances environmental considerations against socio-economic considerations through the ideal of sustainable development. Social and economic development are crucial to the advancement of any country however, regardless of this fact environmental impact has to be balanced against these developments as this was the purpose for enacting a substantively enforceable environmental right.
The second leg of the reasonableness enquiry is that of proportionality. This leg of the enquiry concerns a weighing up of adverse and beneficial consequences surrounding a decision and identifying any less restrictive means to achieve the purpose for which the decision was made. Proportionality is defined by the notion that â€˜one ought not to use a sledgehammer to crack a nutâ€™. Proportionality also has certain elements to it, they are balance and necessity; these refer to the utilisation of lawful and appropriate means to accomplish the decision-makers objective. The issue in this essay does not turn on the question on proportionality as much as it does on rationality.
(d) Section 24 (b) (iii) and Carbon Lock-in
The presence of the word â€˜ecologicallyâ€™ is significant in s24 (b) (iii) because it qualifies the sustainable development that is envisioned by the constitution. Therefore this qualifying feature should mandate decision-making regarding sustainable development. The reasoning for this is that you cannot have development subsisting on a deteriorating environmental basis. Thus if such development is going to deteriorate the environment to such an extent that no other form of development can take place then that is unjustifiable due to the fact that future generations will be adversely affected by such detrimental environmental decision that are made in the present.
Carbon lock-in contributes to climate change; as such adopting an energy policy that possesses a large carbon footprint would be irrational. Alternatively adopting an energy policy that does not recognise potential carbon lock-in effects will also constitute an irrational decision, as proper consideration was not given to information surrounding such decision. When considering energy choices and attempting to arrive at a rational decision things that should be taken into account are whether there is sufficient evidence available to quantitatively asses the potential energy choice as well as accounting for the fact that present and future generations may be prejudiced by such choice. This is illustrated through sustainable development where future generations should be able to benefit from such development. In context, fracking is a large-scale development which requires significant infrastructure thus in this regard there may be economic growth from construction of such infrastructure but it may not be sustainable over time as it is essentially a contributor to climate change and carbon lock-in.
IV INFRASTRUCTURAL DEMANDS
In order to make a well-reasoned decision as to whether to authorise large-scale development, specific attention must be given towards the assessing of its infrastructural demands. Infrastructural demands of such large-scale development require critical and quantitative analysis because of the potential damage it causes to the environment. Essentially one must determine whether the extraction of the resource will be beneficial and viable enough to warrant such infrastructural development.
(a) Recoverable Shale gas in the Karoo
The initial estimate of recoverable shale gas in the Karoo according to the US Energy Information Administrationâ€™s (EIA) was measured at 485 trillion cubic feet. This estimate was however conducted in 2008 and since then this estimate has reduced considerably to a revised 40 trillion cubic feet as issued by the Petroleum Agency of South Africa (PASA). The South African government stated that just over 30 trillion cubic feet of shale gas was enough to meet half the countryâ€™s current electricity generation needs for the next 20 years. The government further stated that exploration drilling remains the only way in which the size of the resource (shale gas) and its commercial viability can be determined. It is therefore salient to this study to adequately distinguish the exploration phase from the production phase, as the infrastructural demands pertaining to each phase are different.
(b) The Exploration and Production phases
The purpose of the exploration phase is to discover more information regarding the particular resource in terms of its quantity and exploitability. The exploration phase is a prerequisite step, which must be concluded before the production phase can begin. The reason for this is the fact that information (size and viability of the resource) deduced from exploration informs the basis of the production phase. The Centre for Environmental Rights published a set of requirements for fracking; the requirements addressed the approval of exploration and production rights. Requirements stipulated that exploration and production must be conducted in a â€˜phased and measurableâ€™ manner in order to allow for scrupulous practical assessment of technological, environmental and economic aspects as well as impediments on the actual production phase. 
Shell is an example of one of the companies that have applied to the PASA for an exploration right. The Task Team report on fracking provides a brief analysis of what exploration should entail for companies like Shell who sought the right to explore the resource. The Task Team report suggests that exploration should continue without allowing for horizontal drilling or fracking. Instead, geological field mapping and hydrological studies should be undertaken as modes of collecting exploration data. The team further recommend that regulations and controls in regards to each phase should be implemented within 6 months of the exploration right being awarded. Ultimately only once the above is completed can production then commence.
(c) Infrastructural demands in the Exploration phase
The Task Team report further stated that infrastructural demands during the exploration phase would be minimal, temporary and localised. Shell documented in its exploration application to the PASA that they would endeavour to drill 8 boreholes/wells in each precinct of the Karoo to which they had been allocated. This in total amounts to 24 wells, the depth of which will reach 5kms over a period of 3 years. Shell predicts that each well will acquire between 0.3 million and 6 million litres of water for exploration. Shell however gives a vague indication of where this vast quantity of water would be sourced. It has been argued that the water will be sourced from places with surplus, which therefore requires additional investment for water storage or transportation infrastructure in the forms of dams or pipeline networks. Alternatively heavy-duty trucks will be used as a mode of transportation of the water to the drill site. An exact quantification of truckloads during the exploration phase is yet to be precisely determined. However it is largely accepted that the level of infrastructural development required during this phase will be lesser than what is required during actual production.
(d) Infrastructural demands in the Production phase
The production phase is where considerable infrastructural development needs to take place. Owing to the fact that South Africa and more specifically the Karoo region has no history of pipeline network systems or any infrastructure presently in place in order to undergo production. The Karoo is a vast area with sparse vegetation and high temperatures; it is a landscape unique to any other. It is unique in the sense that its shale rock is estimated to be located at depths of between 4 to 6 kms. This factor alone conveys a major obstacle in the production phase, as more energy (through the development of the appropriate infrastructure required to extract the resource) will have to be expended due to its significant underground depth.
- i) Water
The main resource used in the fracking process is water and the deeper the shale the more water that will be required. South Africa is a water stressed country; the Karoo region in particular is plagued by low annual rainfall and high evaporation rates. Fracking requires around 20 million litres of water in order for extraction to take place per frack. This amount of water is considerably higher than the United States (US), which only requires around 16.5 million litres. The US Environmental Protection Agency estimates that truck trips per well (solely for the transportation of water) total to 1600 trips which are subject to fluctuate depending on the location of the water source. Water is required at the drill site therefore problems associated with water use in fracking become localised. Frackingâ€™s main constraint is access to fresh water as water resources are strained in the inland of South Africa. This constraint is not based on water consumption but more likely associated to the location of consumption. This is because shale gas wells decline at a rapid rate resulting in many wells needing to be drilled over a large area at one time. The competitive production levels of conventional gas also contribute towards the need for multiple wells. The multiplicity of wells drilled at one time exhibit that shale gas production cannot receive all its water from a centralised location.
In order to reduce these localised water resources from fracking, large trailer trucks from areas with surplus will transport the water. It has been stated that the surplus of water would be sourced from the Orange River; this however depicts a negative water balance in the sense that people who live in the Orange River area will be more susceptible to drought. Alternative pipeline transportation is being investigated as another mode of transporting water to the site. The installation of a completely new pipeline network is an extremely costly investment. An example of a pipeline network that has been successfully established in other parts of the country is the Vaal Gamagara scheme its main pipeline sources water from the Vaal River and takes it back to the Kalahari. The location of the water resource for fracking will determine the relative constraints production may or may not encounter.
- ii) Transportation
The Treasure the Karoo Action Group (TKAG) considered a water usage scenario where they estimated that if Shell were to frack a total of 32 well pads (each needing 20 million litres of water) the total number of truck visits to the well pad site would resemble an exceptionally large number of around 55 344 visits. Inevitably trucking activities associated with shale gas development may result in traffic and ultimately to the deterioration of public and private roads as well as bridges. The Karooâ€™s existing roads have not been thoroughly examined in this context yet but the Task Team report states that it is unlikely that these roads were designed to withstand such large volumes of trucks on the road at one time as well as other mass associated with shale gas development. Thus roads would need to be widened and construction on new roads would need to be authorised in order to have an effective production phase.
iii) Pipeline network systems
Another consideration in terms of infrastructure is that required for the distribution of the extracted shale gas to the main industrial centres. South Africa has no history of natural gas infrastructure in the form of pipeline distribution networks or downstream refineries. Therefore in order for the gas to be transported to the main industrial centres namely the Highveld and Kwa-Zulu Natal, significant pipeline networks would have to be laid which is an additional cost. The reason the US has benefitted from an efficient production phase in shale gas extraction is primarily due to their rich history of downstream pipeline networks, which were already in place before production began.
In the US the pipeline networks delivered the gas to the industrial centres with minimum investment in additional infrastructure. South Africa on the other hand has no shale gas infrastructure in or even remotely near the Karoo. The only relevant infrastructure in the Karoo is a series of electricity transmission lines, which connect the Western Cape to generating industrial centres in Mpumalanga. There has been no precise evaluation in terms of the number of pipelines needed; this is because the exact location of shale gas deposits in the Karoo would need to be explored first. Only once this is done then can pipelines be laid according to the location of the shale gas found, then ultimately transferred to the main industrial centres via the network. The TKAG website indicates that at least 750 truck trips are required to bring in heavy duty materials for the production phase, this number excludes transportation trips fro water.
- iv) Wastewater storage
Wastewater storage is also a key piece of infrastructure that would need to be put in place as chemical spills and cracks in pipe castings are ever present in production of this magnitude. The wastewater that flows back to the surface from fracking contains large volumes of chemicals associated with shale gas development including toxic pollutants such as arsenic and other radioactive materials. The wastewater is toxic and needs to be properly disposed of in order to avoid groundwater contamination, soil contamination and exposure to humans and animals. The consideration for adequate wastewater storage and disposal denotes additional infrastructural costs. The proposed method of treatment for wastewater in the Karoo is the use of aboveground tanks with bund walls, which would be situated at the well site during all phases of drilling and production.
If the EIAs assessment is correct in terms of its estimate of recoverable shale gas resource in the Karoo, this would lead to further infrastructural development as the demand for shale gas (should there be one) would generate a demand for the establishment of gas-fired open turbine power stations. These power stations would have the advantage of relieving capacity constraints such as damage to the roads and implementation of vast pipeline infrastructure in order to transport the gas to a location where it would need to be liquefied. The open turbine power stations are arguably more economically feasible as they are to be situated near coastal areas making pipeline transmission of the gas more accessible to the larger coastal markets.
(e) How are these demands going to be legally facilitated?
It is argued that the lack of adequate infrastructure is considered a harsh impediment to the economic development and overall progress of a society. The constitution promises social transformation therefore it seems necessary to effect the transition through infrastructure expansion. The South African government has committed itself to achieving social transformation by passing the Infrastructure Development Act (IDA). The IDA officially marked governmentâ€™s support for economic growth and development through the facilitating of large-scale infrastructural development by sufficiently giving planning, approval and implementation of such developments significant priority. In a sense it aims to speed up the process in order for national goals to be realised through infrastructural development.
The National Development Plan 2030 (NDP) has two overarching objectives, which aim to eliminate poverty and reduce inequality by 2030. The report on the NDP states that future growth of the country is hindered by infrastructure deficiencies inter alia it further sets out how it aims to remedy these deficiencies. Namely by exploring shale gas viability in hopes that its economic benefit will outweigh those associated with coal. It is significant here to note that the NDP and the IDA are both being utilized to promote infrastructural development and ultimately speed up the process as far as fracking is concerned. The IDA will endeavour to fast-track the production phase in hopes that building of infrastructure will lead to job creation and economic growth.
However, it is pertinent to bear in mind that the IDA in speeding up large-scale infrastructural developments such as fracking is inevitably facilitating a speedy lock-in effect. It does this through the relatively easy authorisation of infrastructure needed for fracking by means of the IDA. This then forces one to consider whether the inclusion of an enforceable substantive environmental right in the constitution sought to have its economic dimensions in regards to sustainability trump environmental and social dimensions. The Climate Change White Paper reiterates the governmentâ€™s commitment to climate resilient developments, however with the subsequent enactment of the IDA the government is tending to focus solely on economic and social dimensions of sustainable development. The IDAâ€™s focus on the implementation of large-scale infrastructure also significantly contradicts a number of international policy objectives aimed at eradicating the carbon footprint. Finding and maintaining a balance between social, economic and environmental dimensions is a task that is imperative to governments globally.
South Africaâ€™s environmental law framework, NEMA states in its preamble that its overall object is towards the realisation of s24 it aims to facilitate this through cooperative environmental governance and thus requires a strict element of certainty and informed knowledge on the part of decision-makers in making decisions that could impact on the environment. The principles contained within NEMA accentuate that â€˜development must be socially, environmentally and economically sustainableâ€™ while â€˜the social, economic and environmental impacts of activities, including disadvantages and benefits must be appropriate in light of such consideration and assessment. The NEMA principles serve the purpose of directing and determining the way in which the South African government approves large-scale infrastructure development projects in order to eradicate or lessen environmental externalities.
(f) Funding and Governmentâ€™s â€˜free carryâ€™
The narrow focus of the IDA is a cause for concern as it places extensive weight on the need for social and economic dimensions of the sustainable development paradigm with little to no cognisance of the fact that the environmental impact dimension is crucial to realising the s24 right. It is unclear as to where the funding for fracking infrastructure will come from in terms of the government or the private companies with exploration rights. However the exploration phase regarding infrastructural development was intially expected to be funded by the private oil and gas companies themselves. The Mining and Petroleum Resource Development amendment Act (MPRDA) stated that government would acquire a 20% free carried interest in the exploration phase as well as production phase.
In regards to the production phase it is salient to note that most critical labour skills and drilling equipment would have to be imported, as South Africa has no history of shale gas infrastructure such as drill rigs. On top of road, transport, water and pipeline infrastructure as aforementioned the requirements of professional skilled labourers and engineers would also have to be sourced from overseas as they are critical in the implementation of the production phase. The costs associated with such are going to be considerable and would require a long-term commitment to them, which exposes that the infrastructure is not just provisional. This is because there are maintenance and monitoring requirements that go with them. And which would probably result in a state subsidy for the maintenance of construction of roads, water storage facilities and pipeline infrastructure.
Fracking is not going to be conducted by state-owned companies; it is going to be done by private companies who have applied for exploration rights. The private companies pay a portion of royalties to the government for acquisition of those rights. The government will also benefit from the tax the private oil and gas companies pay. The royalty amount has not yet been determined however over and above this the South African government stated that they want a â€˜free carried interestâ€™. South Africaâ€™s oil and gas industry is regulated by the MPRDA and accordingly in terms of this Act together with the draft fracking regulations, the state has decided to take a 20% free carry in all new oil and gas developments. The government has also endeavoured to reserve the right to buy another 30% at market related rates, which could potentially result in the government acquiring a 50% stake in such developments.
Carbon lock-in is a concept that ultimately leads to unwarranted environmental degradation. Therefore, any development or process, which contributes to being locked-in, would in effect hinder an aspect of the s24 right, which is aimed at ecologically sustainable development for present and future generations. This is because carbon lock-in is a predominant contributor towards climate change, the effects of which are constantly seen in the rise in atmospheric temperatures around us. As such policy and infrastructural developments considered by government should only be adopted in order to escape the lock-in not further contribute towards it in order to realise the right.
The infrastructure required for fracking is treated, as an ancillary matter in many reports, which adheres to the inadequacy of proposed authorisation, be it in the exploration phase or the production phase. However from what could be gathered from these reports, it is clear that frackingâ€™s infrastructural demands are extensive and costly. Given the fact that South Africa has no shale gas infrastructure, the infrastructure needed would have to be developed from the ground up. This involves a commitment to shale gas for years to come in order to receive a return on such a costly investment, such process thus blocks out alternative avenues of renewable energy options to be explored. Critical assessment with regards to infrastructure is crucial to the benefits of shale gas extraction as well as escaping the carbon lock-in.
With legislation such as the IDA government hopes to speedily facilitate large-scale developments such as fracking. It does this by making authorisation of infrastructural demands relatively easy to implement. Government supports the idea that development will lead to a thriving economy where social needs are also met. However, as stated in Fuel Retailers a thriving economy cannot subsist on a deteriorating environmental basis. Therefore it is of considerable importance to adhere to detrimental impacts an impending development has on the environment before a decision is reached on such development. Such environmental impact would include the carbon lock-in effect because it must be remembered that although shale gas is considered greener than coal it is still fossil-fuel based which in effect means that it emits a considerable amount of carbon into the atmosphere contributing to lock-in.
Section 24 requires rational decision-making when it comes to the adoption and implementation of developments that are likely to negatively impact on the environment. As such â€˜reasonable legislative and other measureâ€™ would have to be adopted to ensure that the proposed developments benefit present and future generations. The rationality enquiry alludes to the idea that there is a means to an ends as well as whether there is a rational connection between the means and ends. This enquiry has implications on the evidence that is put forth in arriving at the subsequent outcome. Essentially, if fracking were to be authorised â€“ a certain outcome would ensue, an outcome, which the government hopes, will be an economy that is less reliant on coal. In establishing a rational connection between the decision to permit fracking and the outcome the government say they are going to achieve, evidence would have to be put forth to support such decision. The government would thus consider bringing as evidence: the notion that shale gas is greener than coal and that job creation will come as a result of such development.
However, without considering evidence as to frackingâ€™s lock-in effects and resource depletion how can such decision be rational and proportional? In considering this the first thing that government should do before authorising fracking would be to asses all gathered information relating to its environmental impacts, infrastructural commitments, socio-economic benefits and contending interests. If there is no sound information present then the authorisation of fracking will be unjustified however if there is sound information then the balancing exercise will come into play. The fact that comprehensive infrastructural assessments have not been carried out in terms of fracking, its contribution to carbon lock-in, the fact that government will be subsidising it to such an extent and lastly the fact that it will not alleviate poverty are all reasons as to why the authorisation of it is unjustifiable.
Further the environmental right catapults the word â€˜ecologicallyâ€™ to the forefront of sustainable development. In terms of the carbon lock-in and fracking, the content of the environmental right will not be sufficiently realised if fracking is authorised. There has only mere estimations as to fracking infrastructure demand, such insufficient information cannot suffice in terms of making a rational decision. Further the content of s24 in acknowledging the need to protect the environment for present and future generations will not be realised if fracking is permitted. This is due to frackingâ€™s harmful carbon lock-in effects and the fact that it would create sufficient natural resource instability, which impedes on the environment for future generations.
Thus it is evident that the authorisation of fracking without consideration of its harmful lock-in effects would be irrational and thus unconstitutional.
 Gregory.C.Unruh â€˜Understanding carbon lock-inâ€™ Energy Policy (2000) 28 at 817-830.
 The Constitution of the Republic of South Africa Act 108 of 1996.
 Supra note 3.
 Fine, B. and Z. Rustomjee (1996), The Political Economy of South Africa. From Minerals-Energy Complex to Industrialisation, London, Hurst.
 Jeremy.J.Wakeford Can we Transition to Sustainability (published PHD dissertation, University of Stellenbosch 2012).
 See Fine and Rustomjee op cit note 5.
 See Wakeford op cit note 6.
 Government Gazette (notice 1032 of 2013).
 Department of Mineral Resources Report on Investigation of Hydraulic Fracturing in the Karoo Basin of South Africa (2012) 31.
 Treasure the Karoo Action group â€œFracking Factsâ€ Treasure the Karoo; Fig Mail & Guardian (10-08-2012).
 WWF Framework to assess The economic reality of shale gas in South Africa of 2015 at 15.
 Ibid fn 10 at 53.
 Act 56 of 2002.
 National Climate Change Response White Paper 2011.
 See Unruh op cit note 2.
 Ibid fn 17.
 See Unruh op cit note 2.
 Melissa Powers â€˜The Cost of coal: climate change and the end of coal as a source of cheap electricityâ€™ (2010) 12 Pennsylvania Journal of Business Law 407 at 409.
 See Wakeford op cit note 5.
 See Unruh op cit note 2.
 See Unruh op cit note 2 at 820.
 National Climate Change Response White Paper 2011.
 See Powers op cit note 26.
 See Unruh op cit note 29.
 Melissa Powers â€œGreening the Grid: Building a Legal Framework for Carbon Neutralityâ€™ (2009) 12 Pennsylvania Journal of Business Law at 927.
 Anel du Plessis and Reece Alberts â€˜Cooperative Environmental governance: at the coalface of sustainable infrastructure development in South Africaâ€™ (2014) 29 SAPL at 52.
 Infrastructure Development Act 23 of 2014.
 See du Plessis op cit note 37.
 Loretta Feris â€˜The role of good environmental governance in the sustainable development of South Africaâ€™ (2010) Potchefstroom Electronic Law Journal, Vol 13, No.1. at 75.
 Ibid at 76.
 The Constitution of the Republic of South Africa Act 108 of 1996.
 See Feris op cit note 41.
 Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC) para 44.
 Grootboom supra note 45 para 46.
 Carol Steinberg â€˜Can reasonableness protect the poor? A review of South Africaâ€™s socio-economic rights jurisprudenceâ€™ (2006) 123 SALJ at 265.
 Grootboom supra note 45.
 Ronald Bobroff & Partners Inc v De La Guerre 2014 (3) SA 134 (CC) para 8.
 Bobroff supra note 50.
 Grootboom para 41.
 Grootboom para 43.
 Grootboom para 42.
 Bobroff para 7.
 Bobroff para 6.
 Cora Hoexter â€˜Reasonablenessâ€™ in Juta & Co, Ltd (2 ed) Administrative Law in South Africa (2012) 327-350.
 Treasure the Karoo Action group â€œFracking Factsâ€ Treasure the Karoo; Fig Mail & Guardian (10-08-2012).
 See Hoexter op cit note 58.
 Act 108 of 1996.
 See du Plessis op cit note 37.
 See Feriis op cit note 41 at 83.
 See Hoexter op cit note 58.
 Fuel Retailers Association of Southern Africa v DG, Environmental Management, Mpumalanga 2007 (6) SA 4 (CC) para 44.
 Fuel Retailers para 47.
 Department of Mineral Resources Report on Investigation of Hydraulic Fracturing in the Karoo Basin of South Africa (2012) 19.
 David Fig Extraction and displacement the potential social and environmental impacts of Hydraulic Fracturing in South Africa (paper presented at the IC conference 2012).
 Op cit note 70 at 72.
 Ibid at 22.
 Ibid at 68.