BackgroundThis Rulings replaces that published on 31 October 2018. The wording of the decision on Point 1 has been changed but the decision to not uphold the complaint remains.
A website for Friends of the Earth, www.foe.co.uk, seen on 11 October 2017 on a page titled “Fracking and the campaign to stop climate change” stated under the heading “Why fight fracking? Climate change Fracking is incompatible with tackling climate change … Water Fracking risks contaminating groundwater”.
The claims were accompanied by an image of a wave crashing against a barrier and a glass being filled with tap water.
The complainant challenged whether the following claims could be substantiated and were misleading:
1. “Fracking is incompatible with tackling climate change”; and
2. “Fracking risks contaminating groundwater” in combination with the image of the tap.
1. Friends of the Earth Ltd (FoE) said it was their strong and reasonably held view, based on considerable scientific evidence, that fracking was incompatible with tackling climate change. They said hydraulic fracturing (fracking) was the process used predominantly to extract gas from the ground. They explained that the UK Government had signed up to the Paris Agreement, agreed at the UN Climate Change Conference in 2015, which aimed to keep the global temperature rise in the 21st century to no more than 2 degrees Celsius above pre-industrial levels and to pursue efforts to limit the temperature increase further to 1.5 degrees. They explained that the current pledges of the 174 individual nations involved would not achieve the 2 degree target and that the main action needed to be taken to limit global warming was to reduce the burning of fossil fuels. In any event, the UK’s own target to reduce its emissions, set in 2008, did not address the requirement for more stringent targets in line with the Paris Agreement; in order to do so greater reductions were now required.
They said the Minister for Climate Change in 2016 stated in Parliament that 70‒75% of known fossil fuels (which the ASA understood related to what the Intergovernmental Panel on Climate Change termed “existing proven reserves”) would have to be left unused in order to have a 50% chance of limiting global temperature rise to below 2 degrees. FoE said that in order, therefore, to meet the aim of limiting global temperature rise to 1.5 degrees or to improve the odds of limiting the rise to 2 degrees, an even greater percentage of fossil fuels must remain unused. They highlighted that the Minister referred to “known fossil fuels”, which in the UK did not include shale gas. There were estimates of the UK’s shale gas resource but not of any reserve and therefore any UK shale gas would be over and above existing proven resources. They said Oil Change International, a campaigning organisation, had further assessed that emissions from fossil fuel mines and wells already in production, or being constructed, would exceed the carbon budget needed to meet the global temperature target. FoE considered that there was no room for any new coal, oil or gas exploration and production. They further explained that the possibility of using Carbon Capture and Storage (CCS), the process of capturing and storing carbon dioxide emissions released by burning fossil fuels to prevent them from reaching the atmosphere, would not cause a material change to the chances of meeting the 2 degree target with even an idealised scenario adding just 12‒14% to burnable fossil fuels.
They said that because large scale extraction of shale gas in the UK was likely to be 10‒15 years away, it would not help phase out the use of coal for electricity production. FoE considered that it was very likely that shale gas used to generate electricity would be replacing lower carbon forms of electricity such as renewables.
FoE explained that there was also the issue of methane release, which studies had identified as a consequence of the oil and gas industry. The total difference in emissions between shale gas and coal depended on the levels of methane (itself a powerful greenhouse gas), emitted during the production process. They said that if fugitive methane emissions (gases leaked during production directly into the atmosphere) were not low, then any potential advantage from the lower combustion emissions of shale gas ‒ if it could ever be deployed as a bridge from coal ‒ would be eliminated.
FoE stated that the Committee on Climate Change (CCC), the UK’s independent advisory statutory body established under the Climate Change Act 2008, published a report in March 2016 on the compatibility of fracking with meeting the UK’s climate targets. The report stated that exploiting shale gas through fracking on a significant scale was not compatible with UK climate targets unless three tests were met:
1. Well development, production and decommissioning emissions must be strictly limited.
2. Gas consumption must remain in line with carbon budgets requirements.
3. Accommodating shale gas production emissions within carbon budgets.
FoE said they had serious doubts that there was evidence that the tests could be met at all, notwithstanding that in July 2016 the UK Government had published a response to the CCC’s report which stated that they believed the three tests would be met. FoE said the Government’s response was a statement of intent and commitment to future compliance rather than demonstrating or establishing the necessary mechanisms for compliance with the tests.
FoE said that whether the first test could ever be met depended on the strength of UK regulation and that in 2016, the authors of the CCC report had said in national media that the UK needed clearer and stronger regulation. However, the Government had not addressed the gaps in the UK’s regulatory framework identified by the CCC’s report. FoE said that, furthermore, there were documented failings of the current regulatory framework when applied to the oil and gas sector, and that globally methane leakage from the oil and gas sector was a greater problem than previously thought, which necessitated an even more cautious approach.
The second test required that UK shale gas production must displace imported gas (rather than result in an overall increased consumption of gas in the UK) and that the full lifecycle emissions of domestically produced gas must be broadly similar to, or lower than, the emissions from imported gas; tight regulation of overall emissions was required to achieve that. FoE considered such regulation was not in place. They pointed out that while the Government’s response to the CCC’s report stated that it did not believe that development of shale at scale would significantly alter UK domestic gas consumption, that was a statement of belief rather than an evidenced statement. Additionally, the CCC’s report highlighted that gas could only continue to form a large part of UK fossil fuel consumption if in the longer term it deployed CCS; if CCS was widely deployed, gas consumption would still need to decrease by 50% by 2050 in order to meet the UK’s current climate targets. If CCS was not deployed, gas consumption would likely need to decrease by around 80% by 2050, with gas ceasing to be used for electricity generation by the mid-2030s. However, the Government’s response to the CCC’s report did not mention CCS at all, and FoE said there was no evidence that it would be commercially available at the time the industry was planning for at-scale production of shale gas.
The second test also required that consideration must be made of the possible impacts of UK shale gas production on the global energy system which could affect global emissions, including by displacing coal, displacing low-carbon energy or leading to increased fossil fuel consumption. FoE said that there were no provisions within international climate agreements to ensure that an equivalent amount of any shale gas produced by the UK would remain unused by another nation. In the absence of strong climate policies, they considered that any additional fossil fuel reserve that went into production would increase cumulative emissions in the long run and would work against global efforts on climate change.
They said that they doubted the third test regarding production emissions could be met because a report from the University of Edinburgh estimated that the level of emissions from domestic shale gas production would have to be accommodated within the UK’s emissions reduction targets and that even a 1% fugitive emissions rate would risk exceeding those targets. The Government’s response to the CCC’s report stated that any additional emissions would be accommodated but did not outline how that could be accomplished. The Government also relied on the reduction of emissions in other sectors despite not being on track to meet the UK’s emissions targets for 2025 and 2030 due to an insufficient reduction in emissions from other sectors of the economy such as transport and buildings.
FoE said that, even if it were possible to meet the three tests set by the CCC, that would not be sufficient to establish that it was not a reasonably held view that fracking was incompatible with tackling climate change. That was because: the UK’s current emissions reduction targets were not aligned with the stricter targets set in the Paris Agreement; no further global warming was safe; and any new fracked gas would constitute additional fossil fuel unlikely to displace fuel production in other countries.
2. FoE said that there was an established view from a broad range of authoritative experts that fracking risked contaminating groundwater. They said that UK and other experts said that fracking could contaminate groundwater. They provided relevant reports from the British Geological Survey, the European Commission and the Irish Environmental Protection Agency. They also referred to evidence given to the House of Lords by the Chair of the Environment Agency. They further explained that experience from places where fracking had happened showed fracking and fracking related activities had contaminated groundwater.
They provided extracts from a US Environmental Protection Agency report which set out activities and factors that were more likely than others to result in frequent or more severe impact on drinking water sources. Those included issues surrounding spillage, waste water and discharge and the location of hydraulic injections. They said those problems were also identified by the British Geological Survey in 2015 as potential ways in which the water environment could be contaminated. They provided relevant extracts from the report. They said that the main regulator in the US had concluded that there were examples of impacts fracking and fracking related activities had on groundwater and that the same basic principles would be used in the UK and therefore the same risks would be posed. They said that as the regulatory framework in the UK was relatively untested, it could not ensure that the risk of contamination was removed. They also provided expert reports which identified weaknesses in the existing UK regulatory framework to prevent contamination of ground and drinking water.
FoE said that there were groundwater sources in the UK where companies wanted to frack. They explained that groundwater sources were protected by Source Protection Zones (“SPZs”) with three distinct categories labelled SPZ1 to SPZ3, with SPZ1 being the closest travel time from a point below the water table to the source and SPZ3 being the furthest. They said that the Government had prohibited fracking in SPZ1, but not SPZ2 or SPZ3. They explained that there was strong overlap between aquifers used for groundwater supply and areas where fracking could take place. They said that the British Geological Survey had reported that the principle aquifers used for public water supply extended across 81% of England and Wales and that 47% of those were underlain by shale or clays that were potentially prospective for gas or oil. They further said that the House of Commons Environmental Audit Committee had stated in a report on the environmental risks of fracking that it was crucial that groundwater was protected and that they recommended it should be prohibited in all SPZs.FoE provided an independent report they had commissioned by a contaminated land and hydrogeology expert that set out the risks that fracking posed to drinking water. The report covered: the significance of contamination of groundwater sources on the availability of good quality drinking water in areas where fracking was likely to take place; the remediation, process and time scales if contamination were to occur; the ability of water companies to identify and isolate groundwater contamination; and the likelihood of accidental impacts on drinking water sources from fracking operations. They said that evidence provided in the report concluded that groundwater contamination could have a significant impact on drinking water sources. The expert provided further comments and information including a 2015 report on pollution incidents including those which had been caused by activity regulated by Environmental Agency. Further information included a report on the number of offshore hydrocarbon releases. The expert commented that both of these documents supported the position that the regulatory systems were unable to ‘prevent’ pollution from occurring.
1. Not upheld
The ASA carefully considered the context in which the ad appeared and noted that it appeared on FoE’s own website. The page specifically about fracking was part of a series of pages under the title “Climate Change” which addressed a number of issues related to the topic including renewable energy and coal. The claim appeared halfway down the “Fracking” web page and immediately above was information about the process of hydraulic fracturing, renewable energy and other facts about fracking. We considered that the page was intended to provide information and set out why FoE were campaigning against fracking in the UK. For example, one of the claims under the headline “Join the frontline against climate change” stated “Fracking is a process to extract shale gas or shale oil. Both are fossil fuels and emit greenhouse gases when burnt which contributes to climate change. FoE opposes fracking because we need to get off fossil fuels as soon as possible ‒ and shift to renewable energy. What we don’t need is a new fracking industry ‒ extracting gas we can’t afford to burn”.
We considered that the average person to whom the marketing communication was directed was likely to be aware that there was political discussion surrounding climate change and that individual nations were putting in place measures to help tackle the problem, even if they were unlikely to be aware of the specifics of those measures. We therefore considered that in the context in which it appeared, website visitors would interpret the claim “Fracking is incompatible with tackling climate change” to mean that fracking was not compatible with the measures that the UK had in place to tackle climate change, at the time the ad was seen. We further considered that readers would understand that the page was part of a campaign run by FoE who were against the use of hydraulic fracturing, in part because of the effect greenhouse gases had on the environment.
We understood that in 2008 the Climate Change Act set a goal for the UK to reduce emissions by at least 80% by 2050 relative to 1990. Five consecutive Carbon Budgets running up to 2032 set interim emissions reduction targets. The measures designed to meet the Carbon Budgets and 2050 goal were various policies and strategies put in place by the UK Government. The UK had not yet set any targets as a result of the Paris Agreement. In October 2017 the CCC considered that while the UK was on track to outperform the third Carbon Budget (ending in 2022), it was not on track to meet the fourth and fifth Carbon Budgets.
As referenced by FoE, the CCC’s March 2016 report on the compatibility of fracking with the UK’s Carbon Budgets stated that their assessment was that “exploiting shale gas by fracking on a significant scale [was] not compatible with UK climate targets unless three tests [were] met”. FoE believed that those tests had not been met and therefore that the advertising claim that fracking was “incompatible with tacking climate change” was not misleading.
In addition to the three tests, which related specifically to how the UK could accommodate shale gas, while continuing to reduce emissions in line with its Carbon Budgets, the CCC’s 2016 report also identified potential implications to global emissions of a UK shale gas industry. Those implications were explored further in a report for the Scottish Government, published later in 2016, which looked specifically at the compatibility of an ‘unconventional’ Scottish oil and gas industry (which would include fracked gas) with Scottish emissions targets. The report noted the results of modelling scenarios which found that a well-regulated Scottish shale gas industry could have an emissions footprint slightly lower than imported gas, and that its net impact on global emissions would likely be small, with some studies suggesting a small upwards impact on global emissions. It further noted that in a scenario where the world was taking action to meet the goal of limiting global temperature rises to 2 degrees, a tightly regulated Scottish unconventional oil and gas industry was unlikely to have a significant overall impact on global emissions. While the report focused on Scottish production and emissions only, we understood it pointed to the potential for UK emissions as a whole to not have a negative impact on global emissions overall, so long as the CCC’s three tests were met.
We reviewed the Government’s response to the CCC’s 2016 report on fracking, the CCC’s annual report to Parliament in June 2016 on the UK’s progress in meeting the Carbon Budgets and the Government’s October 2016 response to it, and the CCC’s annual report to Parliament published in June 2017 (the Government’s response to that report was published after the complainant saw the ad).
In relation to the first test, the Government had asserted in their July 2016 response to the CCC’s report on fracking that the UK’s regulatory regime was sufficient to meet the test. However, the CCC’s June 2017 progress report to Parliament, in relation to the policy requirement “… tightly regulate & closely monitor any onshore petroleum wells (i.e. shale gas) during development, production & decommissioning to ensure rapid action to address leaks” identified that there was “stronger implementation required” and “new policy required”. We considered it was therefore clear that the CCC considered that the regulatory regime was not sufficient to meet the first test it had set for fracking to be compatible with the UK meeting its climate targets.
In relation to the second test, the CCC’s report on fracking highlighted the need to reduce overall gas consumption from 2016 levels in order for the UK to meet its emissions targets, and the importance of developing CCS. However, the Government response did not reference the overall need to reduce gas consumption (rather than simply replacing imports with domestic gas production) or how to achieve that overall reduction. It also did not mention CCS. We noted that the CCC’s June 2016 progress report to Parliament stated that CCS was “of critical importance to meet the UK’s climate targets at least cost, and require[d] a strategic approach to its development” but that there was “no strategy for the development of CCS”. The Government’s response in October 2016 noted it had commissioned a CCS Parliamentary Advisory Group whose findings, reported in September 2016, it would carefully consider. However, the CCC’s June 2017 progress report noted that CCS was “vital” for meeting the UK’s climate targets, that the Government did not at that time have a strategy for its deployment and “A new strategy should be published without delay, presenting viable options for CCS to operate at scale in the 2030s”. We considered it was therefore clear that the CCC considered that the Government was not taking the necessary action, at a swift enough speed, to ensure that the second test would be met.
In order to meet the third test, the CCC considered that emissions from the production of shale gas must be offset through reductions elsewhere in the UK economy. The Government’s response to the CCC’s report on fracking stated that they believed that additional emissions from shale production would be accommodated within carbon budgets and offset by lower emissions in other industries. However, the CCC’s June 2016 progress report to Parliament stated that while emissions had fallen by 13% in the three preceding years, the reduction was achieved almost entirely by the power sector, and that reductions in the power sector (or any single sector) would not be sufficient to continue to meet the Carbon Budgets. The report stated that the policies at that time were not sufficient to continue the good progress or broaden savings to other sectors, and that the Government had recognised that current policies were not sufficient and had committed to publish its plans on meeting the fourth and fifth Carbon Budgets in their October 2016 response to the report. However, the CCC’s June 2017 report to Parliament highlighted that “recent reductions in emissions should not detract from the urgent need for new policies…to enable future targets to be met” and again noted that those reductions were primarily as a result of the power sector reducing the amount of coal burned, that there was limited potential to further reduce coal use in the power sector, and that in other sectors of the economy recent progress in reducing emissions had been far more limited, or emissions had been rising. Given that sectors in the economy other than the power sector had failed to make significant emissions reductions and the CCC considered the Government urgently needed to introduce new policies in order to meet the targets set in the fourth and fifth Carbon Budgets (and the 2050 goal), we understood that the third test for fracking to be compatible with the UK meeting its climate targets had not been met.
Given that we understood that the CCC considered the Government had not taken sufficient measures to meet the three tests for ensuring that fracking on a significant scale would be compatible with UK climate targets. We also considered website visitors would understand the claim “Fracking is incompatible with tackling climate change” to mean that fracking was not compatible with the measures the UK had in place to tackle climate change. We concluded, therefore, the advertising claim was not misleading.
On this point, we investigated the ad under CAP Code (Edition 12) rules 3.1 (Misleading advertising) and 3.7 (Substantiation), but did not find it in breach.
2. Not upheld
We considered that consumers would understand the claim “Fracking risks contaminating groundwater” accompanied by an image of a glass being filled from a tap to mean that wherever fracking was undertaken there was a risk that water which could end up as drinking water could be contaminated. We considered that consumers would understand that fracking would likely come with some environmental risks and that those informed part of FoE’s campaign against it, but that they would not have detailed knowledge of the difference between groundwater and drinking water or the relationship between the two.
We understood from the response that there was agreement from UK and other experts that there was a risk that groundwater could be contaminated by fracking and fracking related activities. We further understood that there was evidence and scientific and regulatory agreement that showed there had been instances of groundwater contamination in America. We noted that several pieces of evidence stated that the cause of contamination in America had been poor construction of the wells. We also noted that storage of chemicals was listed as a potential mechanism for groundwater to become polluted. We understood from their response that FoE believed that, because fracking had been shown to have contaminated groundwater and that there was no guarantee that the regulatory regime would be able to adequately mitigate the risks, fracking therefore posed a wide spread risk in contaminating groundwater in the UK.
We reviewed the report FoE had commissioned from a contaminated land and hydrogeology expert. The report explained that drinking water supplies came from, among other sources, boreholes which abstracted groundwater. The report also explained that there were two categories of aquifer; principal and secondary. Large public water supplies from groundwater were usually from principal aquifers but there were numerous secondary aquifers which supported local abstractions of water including for industrial and private drinking water supplies. It further stated that fracking activities were not permitted in SPZ1.
The report detailed ways in which contamination could enter a drinking water supply, which included entry into groundwater and transmission through groundwater to a borehole abstraction or spring and seepage via groundwater or through the unsaturated zone into underground holding tanks. The report also explained that some of the fluids used in fracking could be supersaturated with gas, typically methane gas, and that they could enter groundwater. The report highlighted that there were naturally occurring sources of methane in groundwater and that the geological and regulatory context in America and UK were different, but concluded that there was significant scientific literature which showed that fracking operations may cause groundwater contamination.
The report also explained that the British Geological Survey provided maps which showed the areas where shale gas reserves and aquifers overlapped and that there were many areas in the UK where aquifers overlaid shale gas reserves. It further stated that the dependency of various communities on groundwater for drinking water varied across the country. The report gave an example of a specific town in England where an exploration licence had been granted and explained that although fracking was not permitted in the designated SPZ1, it was permitted in the SPZ2 and 3 and that a contamination of that aquifer could have a significant detrimental effect on the supply of good quality drinking water in the area. It also explained that in rural areas there was a much higher dependency on private water supplies from both surface and groundwater which were often provided by secondary aquifers.
Both FOE and the expert report provided information on the mechanisms by which contamination was detected by water companies and how long remediation of the contamination could take. However, we did not consider that was relevant to the claim as it concerned the effects of water contamination and not whether water contamination was a risk from fracking.
We considered that the evidence provided demonstrated that the instances where contamination of groundwater had occurred in America appeared to have been caused by poor construction of the wells, although we understood that the UK was subject to different construction regulation from America. We also understood that the geographical structure of the UK was different to that of America and therefore the risks posed would likely be different and would also vary depending on where the fracking specifically occurred in the UK.
However, the evidence did show that at specific sites where communities were reliant on SPZs 2 and 3 to provide ground water that became drinking water, there was a risk that fracking could contaminate groundwater and that groundwater could end up being used as drinking water. We therefore concluded that the use of the claim and the accompanying image was not misleading.On this point, we investigated the ad under CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (Substantiation) and 3.12 (Exaggeration) but did not find it in breach.
No further action required.