Right of reply: Don’t gas so fast, Rob Hersov

Earlier this week, Rob Hersov made an impassioned plea for South Africa to “exploit the massive shale and offshore gas reserves to transform the energy situation, directly create over a million new jobs and turbo-charge the economy”. He claimed that “green activists funded overseas were imposing moratoriums and blocks on South Africa” and suggested that the Beaufort West area and  the Karoo were ripe for the plucking. In so doing, he said, millions of jobs could be created. But not everyone agrees. Below, please see a response from Derek Light Attorneys & Conveyancers, who were retained by hundreds of landowners in the Karoo and organised agriculture to oppose the granting of exploration rights to Shell, Bundu Oil and Gas and Falcon. – Sandra Laurence

Rob Hersov’s gas to power theory

A Response by Derek Light Attorneys:

In an interview with Alec Hogg on the potential development of South African gas reserves, Rob Hersov commences with an attack on those who have opposed gas exploration off-shore and in the Karoo, describing them as “foreign funded green activists”.  He expands on this in what can only be described as a conspiracy theory from Q-Anon suggesting a conspiracy between the “green activists” (the “convenient idiots”) and developers of renewal energy in Germany to oppose gas exploration and to promote renewable energy development, funded from Germany.

Hersov is indignant and protests : “how dare they [these foreign funded green activists] impose moratorium blocks on us for our energy sovereignty …”. 

I am an attorney in the town of Graaff-Reinet in the central Karoo and was retained [initially by a single landowner] to participate in the consultation process and to oppose shale gas exploration and exploitation in the southern Karoo Basin way back in January 2009.   When Shell B.V. initiated its public participation process in January 2011 we were retained by hundreds of landowners in the Karoo and organised agriculture to oppose the granting of exploration rights to Shell, Bundu Oil and Gas and Falcon (all foreign owned entities). 

The areas under application were massive (almost 200 000 km²) and the potential negative impacts, significant.

Landowners were opposed to Shale Gas Development (“SGD”) and their concerns were:

  1. The lack of knowledge on the potential hazards associated with the invasive technique of hydraulic fracturing (“fracking”) which was necessary to exploit unconventional gas caught up in the tight shale formations.

1.1          The oil and gas companies were guarded in their approach to be forthcoming with information (eg. the chemical composition of fracking fluids) relying on proprietary rights.

  1. The poor understanding of the underground geology in the Karoo and how this might impact on risk of migration of fracking fluids;
  2. The poor state of knowledge of groundwater in the Karoo and the potential inter-connectivity of deep and shallow aquifers;
  3. The impact that SGD would have on groundwater and surface water reserves given the large volumes of water required for fracking;

4.1          The Karoo is a water scarce area prone to prolonged droughts and largely dependent on ground water;

4.2          The Shell B.V. application revealed in its environmental management program that a single well pad could be developed to house 28 wells (vertically up to 5km deep and 2km horizontally) to access shale gas in shale rock formations.  Each well could be “fracked” up to 8 times and each fracking event would utilise approximately 10 000 000 litres of water.  Drilling at these depths would intersect shallow and deep water aquifers.

  1. The lack of legislation and regulation to adequately cater for SGD;
  2. The potential negative impacts of large SGD on agriculture and food security;

6.1          The areas under application by way of example, produces 50% of South Africa’s red meat requirements.

6.2          Given the nature of large SGD and the related fragmentation of the environment, SGD and agriculture cannot co-exist.

  1. The potential risk to air quality, human and animal health;
  2. The risk of increased seismic activity;
  3. A lack of understanding of the potential socio-economic impacts of large SGD;
  4. The potential negative impacts on tourism;
  5. The potential negative impacts on heritage sites (including palaeontological sites and sense of place).
  6. Concern about the failing of decommissioned wells and the associated potential of contamination of groundwater.

12.1       Wells typically have a production lifetime of 5 – 7 years whereafter they are decommissioned and “plugged”.  They may leave a legacy of destruction over decades should cementation fail and allow for migration of contaminants.  

12.2       Mining companies (and also oil and gas companies) do not readily spend on adequate rehabilitation and that is why, we on behalf of landowners advocate for a “superfund” in the financial provisioning to be established at the cost of the developers.

  1. The risk of leakages and spillage with resultant contamination.
  2. Waste disposal, particularly of contaminated water and brine.

Government recognised that these concerns had merit and given the lack of knowledge on significant aspects, imposed a moratorium (it was not imposed by activists) on new applications and appointed a task team to report on the state of knowledge.

The multi-disciplinary task team published its report in which they recognised that there were significant unknowns which militated against informed decision making.  They nonetheless recommended exploration proceed on consideration of “lost opportunity cost” and that the process be somehow halted if negative impacts followed.

At our request [and that of others, including environmental “activists”], the Minister of Environmental Affairs mandated the CSIR (who partnered with various state departments) to perform a high level Strategic Environmental Assessment (“SEA”) to establish the state of knowledge on various aspects to inform decision making on SGD in the Karoo Basin.

In the interim the Minister of Mineral Resources proceeded to publish Technical Regulations under the MPRDA to regulate fracking.

The approach adopted by the Minister was unlawful and we, acting on instructions of landowners, successfully challenged these Regulations on review in the High Court.  The Minister appealed and the Supreme Court of Appeal dismissed the Appeal with costs.   The SCA agreed with us that the Minister had acted ultra vires and the Regulations were set aside.

The SCA also ruled that fracking could not be utilised as a method until it was lawfully and adequately regulated. 

In the circumstances, the SCA agreed with the landowners (“lunatic greenies”) on these important legal issues.

The SEA was completed as was a report commissioned by Government on South Africa’s Technical Readiness to support the shale gas industry (compiled by the Academy of Science of South Africa : ASSAf”).

Both these peer-reviewed reports, compiled by hundreds of specialists in various disciplines recognised the fact that there were significant unknowns which required further research to better inform decision making.  

Subsequently the ASSAf and Government have conducted a number of conferences and workshops aimed at developing a Science Action Plan for shale gas exploration in the Karoo Basin.  The process is ongoing.

The Ministers of Water Affairs and Environmental Affairs have published draft Regulations aimed at regulating SGD and the public participation process was followed.  

The Regulations have yet to be published in final form.  This office has filed comment on behalf of landowners and if the Regulations (including those relating to financial provisioning) are inadequate, these will be challenged on review. 

Government, through various state departments and agencies (including the Council for Geosciences and PASA) and various universities are conducting research to augment the state of knowledge significantly, on the extent of shale gas reserves, groundwater and the unique geology (and geohydrology) in the Karoo Basin.

It is far from established (contrary to remarks made by Messrs Hogg and Hersov) what the extent of shale gas reserves are.  They have clearly been over-estimated before.

So, by way of example, the results of the University of Johannesburg’s recent drilling on the perimeters of the Karoo Basin are described by the ASSAf to be “somewhat disappointing since the shale was found to be over-mature”.  They found no exploitable shale gas reserves.  This is in keeping with recent data from exploration drilling by De Kock et al (2017) which suggests that the White Hill Formation and other carbonaceous shale beds are over-mature and that the technically recoverable shale gas resource may be in the region of 13 tcf.  This is substantially lower than the trillions of cubic feet previously suggested.

The Soekor exploration well reports to which Hersov has reference do reveal some gas finds, but the flow depleted quickly.  The gas reserves were not viable at that time.  

No viable shale reserves in the Karoo Basin have been reported on by any of the entities involved in research and exploratory drilling over the last six years or so.

At a conference arranged by Government and the ASSAf in August / September 2017 for Government and the industry, a spokesperson for Shell informed the conference, inter alia, that they were of the view that that there was a less than 10% chance of discovering viable shale gas reserves.

Shell have subsequently disinvested citing legal uncertainty (related to proposed legislation). 

The authors of the SEA, chapter 5 thereof, suggest that the water resources of the Karoo should not be employed in the fracking process, which suggests that water would have to be imported.  

Hersov suggests that Minister Mantashe should be bold, lift the moratorium and allow for SGD and in the process, telling the “leftists”, “lunatic”, “foreign funded greenies” to “stuff-off”.

He is critical of our President, Cyril Ramaphosa as being “spineless” and prone to bullying by foreign governments. 

This tirade is extremely offensive.

Government is obliged to follow a risk-averse approach and in applying the precautionary principle, have regard not only to what is known, but also to the limits of knowledge which may militate against informed decision making. 

Government must also meet its obligation to properly and lawfully regulate these activities.  Mr Hersov is poorly informed on the facts, or deliberately misrepresents the facts to promote an undisclosed agenda.  He certainly promotes the political narrative of Gayton McKenzie and appears to promote the business interests of Nigerian investors.

Our involvement in the opposition to SGD has been deliberate and responsible, promoting research and proper regulation aimed at protecting the environment and an industry vital to food security.  It has been funded by individual landowners involved in agriculture (which employs in excess of 100 000 people in the area under application and sustains over a million others), the game and eco-tourism industry.  Organised agriculture has also contributed to cost as has the Rupert Nature Foundation.  We enjoy the support of business leaders including Mr Johan Rupert who Hersov erroneously suggests may be supportive of SGD in the Karoo Basin.  Hersov’s assumptions are unfounded and incorrect.  We have also not received foreign funding and if aimed at us, his assertions are both fallacious and ludicrous.

The Econometrix report of the late Tony Twine has since been discredited.  The SEA has established that large SGD would create only 2275 jobs in the drilling phase and approximately 300 during the operational phase with approximately 390 – 900 direct job opportunities for locals. 

SGD will not create, as suggested by Hersov and Twine, “millions” of jobs.  It may in fact undermine thousands of existing jobs in agriculture and tourism.

Hersov believes that the moratorium should be lifted in January and that the next 30-45 days are critical, suggesting further, that gas “both on-shore and off-shore” could be produced in the next 24 – 36 months.  

This is absurd and could not be achieved, either practically or lawfully. 

The ASSAf report suggests periods of up to 11 years for exploration, 5 years for development and production from year 16.  If there are viable reserves and these are exploited it may not, as suggested by Hersov, be in his life-time.  He may however escape the negative effects of climate change which will increasingly bring about catastrophic weather events.

It may be so that gas should be considered to form part of the energy mix to meet South Africa’s energy needs, but to do so utilising an invasive drilling method with potential catastrophic effects on the environment to access unconventional shale gas does not make much sense.  There are conventional gas reserves which can be exploited with less invasive less costly conventional methods.

Government has a duty to ensure the lawful, sustainable exploitation of our Country’s mineral resources including the beneficiation of affected communities, especially those previously disadvantaged whilst preserving an environment which is not harmful to our health and well-being. 

To be critical then, of a risk-averse approach, is irresponsible.

Given the current state of knowledge and the lack of proper Regulation, affected landowners will pursue responsible opposition to SGD.

Yours faithfully

Derek Light

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