Procedural (in)justice in regulating shale gas as transitional fuel in India

Abstract

India has earmarked 56 shale gas fracking projects as part of its coal-to-gas transition plan. However, fracking poses peculiar risks to the environment and public health. This paper examines whether India’s fracking-based energy transition pathway ensures procedural justice for its citizens by evaluating its regulatory framework on three key aspects of procedural justice: information, inclusion and influence. In doing so, this paper posits that procedural rights are considered part of constitutionally guaranteed fundamental rights in India. To address the procedural justice issues, this paper argues that the Indian government should conduct scientific inquiries into the environmental impact of the proposed fracking projects. Additionally, the paper suggests establishing communication channels to inform local communities about fracking-related risks through decentralised regulatory mechanisms, creating regulatory structures to involve various stakeholders in decision-making, and analysing how fracking will affect the socio-economic conditions of local communities.

Keywords:

• procedural justice
• energy transition
• hydraulic fracturing
• India
• shale gas

1. Introduction

The transition from high to low carbon-emitting energy sources is one critical pathway to holding the increase in the global average temperature to well below 2°C above pre-industrial levels.¹ However, the world’s total reliance on high carbon emitting fossil fuels remains significant today. For instance, in 2020, more than 81 per cent of the world’s energy was generated by fossil fuels and 12.14 per cent from renewable sources.² Thus, there is an urgent need to transition away from high-carbon-emitting fossil fuels.

India has currently earmarked 56 hydraulic fracturing (fracking) projects,³ with the aim to increase the share of natural gas production from six to 15 per cent in its energy basket.⁴ Fracking is a well stimulation technique used to extract natural gas (shale gas) from dense shale rocks by injecting pressurised water and creating fissures. This process – when coupled with horizontal drilling – gained commercial scaling in the United States (US) since the mid-2000s and led to a shift from coal to gas, reducing coal consumption and greenhouse gas emissions.⁵ With the help of fracking, the US became self-sufficient in natural gas and even started exporting it to other countries, including European Union (EU) regions⁶.

India has noted the US shale revolution and identified shale gas as a potential bridge fuel to facilitate the country’s transition from coal to renewable energy sources. By switching to natural gas, India could reduce its carbon emissions while building the necessary infrastructure for renewable energy generation.⁷ The ultimate goal is to achieve net-zero carbon emissions by 2070.⁸

Such a transition to a low-carbon future poses peculiar problems for each legal system, and thus, there cannot be one pathway to low-carbon that fits all countries.⁹ While many countries in the Global North have transitioned from coal to natural gas, in India, more than 80 per cent of houses receive coal-generated electricity.¹⁰ The coal sector employs 3.6 million people in India.¹¹ A shift from coal to other lower carbon sources, like natural gas, may disrupt access to electricity in India and lead to mass unemployment.

Additionally, although fracking changed the US energy landscape, it has also posed significant risks to its natural resources, especially water.¹² Several studies suggest that communities living near fracking projects are more susceptible to health issues, especially lung diseases.¹³ Fracking can lead to airborne spread of radioactive material,¹⁴ contamination of groundwater resources,¹⁵ displacement of biodiversity,¹⁶ degradation of land resources, and changes in land use patterns.¹⁷ Besides health and environmental risks, fracking can also lead to diverting freshwater resources from residential and farming communities to the sizeable fracking corporations, as fracking requires 10 times more freshwater resources than conventional drilling of natural gas does.¹⁸ These risks related to fracking can differ from one geographical location to another.¹⁹ For instance, in specific geographical areas like the Siachen region in China and the UK, fracking can trigger noticeable seismic activities, threatening livelihood.²⁰

This paper, therefore, will focus on India’s adoption of controversial fracking methods to obtain natural gas through the lens of energy justice. The current literature applies the concept of ‘justice’ to highlight the impact of energy transition on the environment and local communities.²¹ However, there is no universally acceptable yardstick to determine whether a low-carbon pathway is ‘just’ or not.²² Furthermore, issues of justice that arise from transitioning away from fossil fuels may differ from one legal system to another.²³

The current literature, as discussed in the following section, emphasises the importance of examining low-carbon energy transition pathways with a focus on justice. While these studies offer a theoretical framework to study ‘just energy transition’,²⁴ they primarily concentrate on the Global North. Therefore, it is crucial to contextualise this theoretical framework of ‘just energy transition’ based on the unique challenges faced in the countries of the Global South. Within this context, this paper applies the procedural aspects of energy justice to India’s fracking-led coal to natural gas transition pathway. This paper aims to analyse whether the procedures established to implement India’s shale gas fracking projects – all currently at the planning stage – give rise to justice issues.

Section 2 of this paper presents a critical analysis of the current literature on energy justice. In doing so, it asserts that although there are three core tenets of energy justice – distributive, representative, and procedural – this paper focuses on procedural justice as it is the appropriate frame for analysing energy transitional projects at the planning stage. In section 3, this paper delves into the development of procedural justice as a fundamental right in India, with a primary focus on the oil and gas sector. Subsequently, section 4 of this paper identifies three key aspects of procedural justice – information, inclusion, and influence – and assesses whether current regulatory framework applicable to proposed fracking projects in India adequately considers them, highlighting procedural injustices in India’s fracking regulations. Subsequently, section 5 presents four recommendations on how India can address these procedural justice issues at the planning stage of its proposed fracking projects.

2. Framing procedural energy justice

Scholarship in energy justice has risen in the past five years.²⁵ However, the majority of studies analysed issues of justice in the energy transition mainly from the Global North perspective.²⁶ For instance, while applying the concept of energy justice to the energy transition, Heffron analysed over 100 legal cases worldwide; however, that paper does not cite or refer to any such cases from India.²⁷ In its conclusion, the paper recognises that the application of energy justice to the energy transition depends on the institutional structure of the legal systems and thus can vary from one legal system to another.²⁸ A review article in Nature Energy analysed energy justice issues in the energy transition by limiting its scope to the Global North while recognising that issues of justice are prevalent in the Global South as well.²⁹

In this context, McCauley and Heffron suggest tying different framings of justice, namely environment, energy, and climate justice, with legal geography, which provides the scope for contextualising the energy justice framework based on spatial and geographical conditions.³⁰ Similarly, Jasanoff recommends looking at the application of energy justice to the energy transition by considering the disparities in different societies, thus recommending a contextual approach.³¹ More recently, a series of research papers has highlighted the need to assess the application of energy justice to energy transition in the Global South, including India.³² However, these studies highlight the gaps in the current literature rather than applying the concept of energy justice to one of the transitional pathways in the Global South.³³

The current literature, as discussed in the following section, provides a theoretical framing of the concept of justice that can be applied to energy transition projects in the Global South. For instance, the current literature on energy justice highlights the need to analyse whether energy transition pathways lead to equitable sharing of benefits and burdens of energy systems without any discrimination (distribution justice); analyses how energy transition pathways may misrepresent and ignore the concerns of certain sections of society, which have had limited representation in energy transition decision-making processes (representational justice); and asks whether procedures established to make decisions regarding energy transition are inclusive and consider the concerns of various stakeholders, especially local communities (procedural justice).

These three tenets of energy justice – procedural, distributive, and recognition – are closely interconnected. At the planning stage of a transitional energy project, it is essential to establish procedures for making energy transition decisions in a non-discriminatory manner, ensuring equity in distributing the risks and benefits related to energy systems (the procedural aspects of distributive justice). Moreover, at the planning stage, energy transition pathways must ensure that different stakeholders are actively involved in decision-making, especially minorities and the local communities living near a proposed energy project (the procedural aspect of recognition justice).³⁴ Thus, procedural justice is increasingly recognised as a meeting ground of distributive and recognition justice, especially during the planning phase of transitional energy projects.³⁵

Several scholars have analysed fracking through a procedural justice lens. However, these analyses are primarily undertaken by analysing procedural injustice issues caused by fracking in the Global North, most notably in the US. For instance, Marlin-Tackie and others assessed the role of public participation in the procedural justice framework in building trust between the government and local communities while approving fracking projects in Colorado and the US.³⁶ Griffith assessed whether community consent was based on misrecognition, such as the perceived economic benefits of fracking, which leads to procedural injustices in rural areas of the UK.³⁷ Cotton investigates whether the UK regulatory framework applicable to fracking incorporates distributive and procedural elements of the justice framework.³⁸ While a few research papers have investigated fracking-related procedural injustices in countries outside the Global North (most prominently in China), none focus on India.

On the other hand, the current literature highlights fracking-related issues in India, asserting that India’s regulatory framework conflates fracking with conventional extraction processes, thereby leaving gaps in acknowledging and regulating fracking-specific environmental and public health issues. ³⁹ Fracking-specific issues the Global North faces can help India identify these regulatory gaps. In this context, a transplant of technical know-how related to fracking occurred in 2010, when the US signed a memorandum of understanding with India to share technological knowledge on fracking.⁴⁰

However, India’s socio-economic challenges are different from those of the US. Around 244 million people in India do not have access to electricity,⁴¹ and 700 million people in India rely on solid fuels, such as wood, for cooking. Unlike the US, millions of people in India live in ‘energy poverty’. For this reason, there might be less opposition to fracking projects in India than in the Global North. In this context, Olofsson and others⁴² found an unusual ‘pro-development’ viewpoint among stakeholders, including local communities, regarding fracking projects in India. This situation in India underscores the challenge of balancing energy access with protecting the environment and public health, and emphasises the importance of considering procedural energy justice while planning a fracking-led coal-to-gas transition.

3. Procedural justice in India: a fundamental right

The Constitution of India establishes a three-list system which distributes law-making powers on various subject matters between the federal and subnational level (state) governments.⁴³ List I covers subject matter within the legislative purview of the federal government, while List II covers subjects under state governments. List III enlists subject matters over which both federal and state governments can legislate.⁴⁴ In the case of conflicting laws, federal laws take precedence and matters not listed are assumed to be under federal jurisdiction.⁴⁵

The framers of the Indian constitution were wary of granting legislative competencies over oil and gas resources to the state governments due to the concentration of these resources in select regions of India.⁴⁶ As a result, the Indian constitution assigns legislative competence over oil and gas resources to the federal government to ensure a fair and equitable distribution of the benefits of hydrocarbon resources across India’s territory.

However, after the Indian constitution was implemented, several state governments filed legal cases against the federal government’s rules and regulations on the allocation of oil and gas projects, asserting that these rules and regulations do not ensure ‘equitable distribution’⁴⁷ and were not made in the ‘public interest’.⁴⁸ Such legal challenges against the federal government continually increased as the Supreme Court of India (Court) expanded its locus standi through the concept of public interest litigations (PILs),⁴⁹ allowing civil societies and individuals to approach the court on behalf of vulnerable communities.⁵⁰ Specifically on the issues of natural gas, which includes shale gas, the court observed that such natural resources must be extracted through non-arbitrary and transparent systems, and it is the responsibility of the government to ensure that such transparent systems provide fair and meaningful participation of the public in decision-making.⁵¹

While hearing these petitions, the court applied the ‘public trust doctrine’,⁵² noting that the people of India own the natural resources in India, and the federal government is a mere a trustee of the oil and gas resources. Therefore, the process through which these resources are allocated for exploration and extraction must be done in a way that is ‘fair and equitable’.⁵³ The court, while deciding these matters, considered ‘fair and meaningful’ public participation to be part of the fundamental rights guaranteed to Indian citizens, namely Article 21 (right to life, which includes the right to a clean environment), along with Article 14 (equality before the law) and Article 19 (freedom of speech and expression) of the Indian Constitution, overarchingly ensuring that procedural justice is guaranteed to its citizens.⁵⁴

In 1996, the federal government amended its rules governing the conduct of environmental impact assessments (EIAs) to include public participation as a mandatory component to obtain environmental clearance for major developmental projects, including oil and gas projects.⁵⁵ The public participation component in the EIA ensures that the people residing in the area where the project is being proposed, as well as any concerned citizens of India, can access all information about the project, get involved in the decision-making process, and have a platform to share their local knowledge about the likely impacts of the project on themselves and the environment in their vicinity.⁵⁶

The specialised tribunal on environmental matters – the National Green Tribunal (Tribunal), established in 2010⁵⁷ – elaborated on procedural justice, passing several judgements, ensuring that public participation in environmental decision-making is fair and transparent.⁵⁸ For instance, the tribunal passed orders to ensure the availability of information regarding proposed projects in vernacular language,⁵⁹ digitisation of EIA reports for public access,⁶⁰ ensuring transparency in public participation meetings under the environmental clearance process,⁶¹ and access to information regarding the project through the Right to Information Act, which allows any Indian citizen to seek information from public authorities.⁶²

Therefore, India’s coal-to-gas transition procedure must ensure that local communities are involved in decision-making. In this context, this paper assesses India’s coal-to-gas transition by its implementation of fracking. Since fracking is at the planning stage in India, this research limits its analysis to whether local communities are involved in a ‘fair and meaningful’ manner while granting environmental clearances to fracking projects in India. With the phrase ‘fair and meaningful’, this research identifies three core tenets of procedural justice – first, generating and disclosing information related to the fracking process and its impact on the environment, public health and local communities (information); second, mobilising local knowledge (influence); and third, representation in the decision-making process (inclusion).⁶³

While analysing these three aspects of procedural justice, this paper looks at the EIA process through which fracking projects are approved in India and assesses them in terms of the following parameters. The EIA has moved beyond its basic meaning of assessing the environmental impact of a project and is increasingly recognised to set up procedures that ensure the generation of scientific information and dissemination of it to the public (information), including different stakeholders in the decision-making, as well as ensuring such inclusion is impartial (inclusion), thereby integrating the concerns of marginalised groups by mobilising local knowledge (influence).⁶⁴ Therefore, at the planning stage, EIA is a critical tool to integrate the core tenets of procedural justice into an energy transition project (Table 1).

Table 1. Farming procedural energy justice.

S. no.	Three aspects of procedural justice	Parameters
1.	Information	Whether the present regulatory framework assesses risks posed by fracking activities to local communities and the environment and whether these risks are disseminated to the public in an easy and understandable manner
2.	Inclusion	Whether different stakeholders, including local communities, minorities, and different state and non-state actors, are involved in the fracking-related decision-making process in India
3.	Influence	Whether India’s decision-making process related to the approval of the fracking project ensures the mobilisation of local knowledge

At this stage, there are three caveats: first, although this paper explains the EIA procedures applicable to fracking projects in India, the paper does not explain India’s EIA process in detail. India has a dynamic EIA process that changes rapidly. Through delegated legislative power, the federal government has the executive competence to implement the EIA process in India. Thus, the process can be amended merely by issuing an executive notification.⁶⁵ Between 2018 and 2023, for instance, the EIA process has been changed more than 100 times in India.⁶⁶ It is therefore beyond the scope of this research to explain the nuances of the EIA process in India.

Second, the paper acknowledges that the current scholarship recognises more than three forms of energy justice; for instance, Heffron lists also the concepts of cosmopolitan and retributive energy justice –however, recognition, distribution and procedural justice remain core tenets of energy justice.⁶⁷ As the literature on energy justice and just transition grows, various dimensions of justice will evolve; however, these dimensions are not exclusive and overlap with at least these three core tenets of energy justice.

Third, procedural justice applies to the entire life cycle of an energy project, from the planning phase of a project to its decommissioning. Since the Indian government is in the planning stage of the fracking project, this subsequent section focuses on the planning stage of the coal-to-gas transition envisioned through fracking in India.

4. Legislative and regulatory framework applicable to fracking in India

The current 56 fracking projects in India have been shortlisted based on the technical evaluation of the probability of the extraction of the recoverable shale gas in India.⁶⁸ The shortlisting process also took into consideration the existing expertise of the Indian oil and gas sector, especially its government-owned oil and gas companies.⁶⁹ Recently, private oil and gas corporations have also shown interest in fracking in India.⁷⁰ However, there is still no official announcement of shale gas fracking by private parties in India. Currently, all the fracking projects in India are at the exploration level, and there are no commercial-level fracking projects in India yet.⁷¹

Fracking projects have different impacts on the environment and local communities at the different stages of development, from exploration to extraction. Generally, during commercial-level fracking, a vertical well bore is dug and extended horizontally to reach the shale rocks beneath urban structures, like residential properties, hospitals, and railway stations, where direct vertical drilling is not feasible.⁷² This process requires a large amount of water and land.⁷³ Due to the substantial financial commitment, fracking is usually conducted on a small scale without horizontal extensions, referred to as exploratory fracking.⁷⁴ The exploration stage helps assess the feasibility of shale gas extraction and determine the project’s commercial viability while also evaluating the environmental risks of fracking.⁷⁵

The exploratory phase enables local communities to understand the project’s impacts on a small scale, equipping them with the knowledge to intervene accordingly. For instance, in the exploration stage, the water requirement per fracking well is 400–500 m³, which increases by five to six times during commercial fracking. Moreover, at the commercial stage, the probability of chemical spillage increases as the vertical bore is extended through horizontal drilling.⁷⁶ In exploratory fracking, the project proponent should collect the baseline data of the proposed site, including air quality, water quality, land use, demography, and socio-economic status of the local people, ensuring that the community’s concerns are heard and addressed.⁷⁷

After an EIA is conducted at an exploration stage, the data collected during the small-scale EIA is then extrapolated to predict the impact of fracking at the commercial scale.⁷⁸ At the exploratory stage of fracking, therefore, there are still environmental and community impacts from the acquisition of land, drilling of a vertical bore well, pumping of millions of gallons of water mixed with chemicals and sand (collectively referred to as shale fluid), out of the well, and release of methane gas from fissured shale rocks.⁷⁹ Depending upon the storage standards, the pumped shale fluid can penetrate nearby aquifers and further, contaminating domestic water supplies. For these reasons, as a best practice in the industry, exploratory fracking projects go through the EIA process.⁸⁰

4.1. Fracking regulations in India

To facilitate shale gas extraction, the federal government of India, in 2013, issued the ‘Policy Guideline for the Exploration and Exploitation of Shale Gas Oil and Gas in India’.⁸¹ At that time, oil and gas corporations were required to obtain separate licences for conventional and unconventional extraction of hydrocarbon resources.⁸² However, oil and gas corporations faced challenges obtaining new licences every time they changed their extraction technology. Usually, unconventional and conventional hydrocarbon resources are located within the same area.⁸³ In such a situation, if a corporation received a licence to extract conventional natural gas exclusively, it would need a separate licence to extract unconventional natural gas resources. This separate licensing policy helped maintain information on different technologies and resources used nationwide in various hydrocarbon contract areas.⁸⁴

However, oil and gas corporations with licences to extract only conventional resources would simply sit on unconventional resources such as shale gas. Alternatively, two competing oil and gas corporations could be granted the right to extract the two different hydrocarbon resources in one location, leading to operational difficulties.

To remove these challenges, in 2016, the federal government of India introduced a single licensing policy under which oil and gas corporations can explore and extract both conventional and unconventional hydrocarbon resources under a single licensing scheme.⁸⁵ Thus, from 2016 onwards, oil and gas corporations with hydrocarbon licences can explore and subsequently extract any kind of hydrocarbons in their contract areas without seeking specific permission.

Additionally, in August 2018, the Indian parliament amended the definition of ‘petroleum’ to include shale oil and gas within the generic meaning of ‘petroleum’. The amendment was retrospectively applied, and therefore oil and gas corporations that received petroleum licences before the single licensing policy was introduced can now explore and exploit shale gas reserves in their existing contract areas.⁸⁶ Accordingly, hydrocarbon blocks allocated for conventional drilling before 2017 can use fracking techniques to extract shale gas in their contract areas.⁸⁷

As a result of these changes, a corporation can apply for a single licence without providing any information in the public domain related to the type of hydrocarbon resources they plan to extract in the contract area.⁸⁸ However, in the process of obtaining an EIA, the oil and gas corporations are required to disclose the technology and the kind of resources they use while exploring and extracting natural gas resources in India.⁸⁹ India’s hydrocarbon regulatory authority (Directorate General of Hydrocarbon, DGH) released guidelines for ‘Environmental Management During Shale Gas/Oil Exploration and Production’ (DGH guideline). The guidelines stated that fracking could pose a significant and peculiar threat to India’s environment and public health.⁹⁰

However, in its conclusion, the guideline refrained from proposing a sector-specific environmental clearance process or a comprehensive risk assessment of the proposed fracking sites in India. To defend its stance, the DGH asserted that while granting environmental clearance under the EIA process, fracking projects in India are assessed on a case-by-case basis for their environmental and public health impact.⁹¹ As the DGH asserted, while doing EIA, the regulators issue project-specific ‘Terms of Reference’ (TORs); these are the yardsticks based on which a project’s environmental and public health impact is evaluated. Thus, TORs issued to a proposed fracking project can potentially address fracking-specific risks. In doing so, the DGH, in its guideline, apart from general TORs, recommended five fracking-specific TORs based on which regulators must assess the impact of the proposed fracking projects on the environment.⁹²

So far, two shale gas fracking projects (both at the exploration stage) have undergone the EIA process in India⁹³. While assessing the environmental impact of both projects, regulators did not assess the projects on the five DGH-recommended fracking-specific TORs. This inconsistent practice, therefore, calls into question the value of the guidelines and the commitment by the Indian regulators to fully review fracking licenses. The procedural justice aspects of these two projects are, therefore, discussed in detail in the next section.

Generally, as part of the EIA process, the project proponent must hire a government-authorised environmental consultancy that assesses a proposed project’s impact per the TORs set by the federal-level government regulator.⁹⁴ Subsequently, the results of such an assessment (generally known as a preliminary EIA report) are published on the federal and the respective subnational governments’ websites and made available to the public in the local governmental offices.⁹⁵ Additionally, the government (at both the federal level and the respective state level) and the project proponent must disseminate the findings of the preliminary EIA report to the public in English as well as in the vernacular language and, subsequently, conduct a public hearing in a just and fair manner.⁹⁶

The state-level regulators supervise the public hearing process per the regulatory standards set by the federal government under the EIA framework notifications.⁹⁷ As per the standard, state regulators must inform the local community about the public hearing at least one month before the date of the hearing; this information must be disseminated by publishing a notice in the newspaper (the notice should be published in the vernacular as well as the English-language newspaper).⁹⁸ Public hearing must begin with a presentation that discusses the details of the project, including its impact on the environment and public health, as noted in the preliminary EIA report.⁹⁹

Subsequently, members of the public can raise questions regarding the project both orally or in writing, and the project proponent must answer the queries raised by the public. To ensure that the members of the local community can freely voice their concerns, it is mandatory for government officials (District Magistrate/District Collector/Deputy Commissioner or their representatives not below the rank of an Additional District Magistrate) as well as the representatives of subnational level regulators (generally, the State Pollution Control Board) to be present during the public hearing process.¹⁰⁰

The questions asked in a public hearing, and their responses, are then annexed to the preliminary EIA report and submitted to the environmental regulators for the environmental clearance stage. The public hearing process is recorded. Any concerned person can attend the public hearing and raise their concerns.¹⁰¹

India’s general public participation rules appear to be quite strong, on paper at least. After 2020, however, all hydrocarbon projects at the exploration stage, including those using fracking, became exempt from the federal government’s EIA process and the public hearing process discussed above.¹⁰² However, exploratory hydrocarbon projects still need permission from the state regulators. These permissions are granted case by case but do not catagorically require the project proponent to disseminate project-related information to the public or hear their concerns. Therefore, in contrast to countries across the Global North which assess the impact of fracking on their local environment and make the information public so that communities can determine the effect of the proposed project before it is commercially scaled, Indian law has now been amended to avoid such public scrutiny.

Two exploratory fracking projects (out of the proposed 56) underwent the EIA process (including the public hearing) before exploratory fracking projects were made exempt after 2020.¹⁰³ The EIA reports, along with the details of the public hearing for these two projects, are available on the federal government of India’s environment ministry’s website and will be explored below.¹⁰⁴

Both the projects that received environmental clearance for exploratory fracking are located in areas of water-stressed agricultural land. The first project, situated in the western industrial state of Gujarat, has conducted 11 shale gas well drillings, each covering an area of 110 m².¹⁰⁵ The report raised a significant concern, pointing out that this project could potentially lead to ‘chemical spillage’. The pressurised water, mixed with 3–12 chemicals within the 13.31 ha of the project land area, poses a substantial risk to the local economy and land use patterns.¹⁰⁶ The second project, located in the coastal state of Andhra Pradesh, has conducted five shale gas well drillings. It is spread over 2 ha of land, surrounded by agricultural land, and each exploratory fracking well required vertical drilling of around 130 m².¹⁰⁷

It is worth noting that both exploratory fracking projects required the use of a significant amount of fresh water, ranging from 400–600 m³ per activity.¹⁰⁸ This is particularly worrying given the existing water scarcity in the area, compounded by the proponent’s lack of transparency surrounding the water source. In the following section, this paper examines fracking regulations in India and the clearances granted to these two projects based on the three principles of procedural justice outlined in section 4 (Table 1).

5. Fracking and procedural injustices

This section analyses the two exploratory EIA reports based on the procedural justice framework, consisting of the three core aspects of procedural justice – information, inclusion, and influence – as laid out in Table 1.

5.1. Information

Fracking poses peculiar risks to the local environment as well as to the communities residing near fracking sites.¹⁰⁹ For this reason, several countries, at both the federal and state levels, have conducted scientific inquiries on how fracking would impact their environment and local communities. For instance, in the US, several states conducted regional-level scientific inquires and banned fracking, citing significant risks it poses to the environment and public health.¹¹⁰ Similarly, member states of the EU, including Germany, the Netherlands and France, have issued moratoria against fracking after such scientific inquires.¹¹¹

The Indian government, in its 2013 policy and DGH guideline, acknowledges the need to generate information on how shale gas extraction would impact the environment and the communities residing near these sites.¹¹² However, there are no government-authorised scientific inquires on how the proposed fracking in India would impact their surrounding environment and communities.¹¹³ Although there is a significant literature on the impacts of fracking on the environment and public health, it is still important to contextualise these findings as per the local geography and the nearby communities.

Without a government study, EIA reports for the fracking projects at the exploration stage can provide some information to comprehend the potential impact of these projects if they were to be implemented at the commercial level. However, since 2020, project proponents are no longer obligated to conduct an EIA for exploratory fracking projects. As a result, the public does not have access to any area specific information regarding the potential impact of the proposed project until it is scaled at a commercial level and its environmental impacts are analysed.

In April 2022, the federal government of India further amended the EIA process excluding all projects deemed ‘strategic’ to India’s security from public hearings.¹¹⁴ The details and information related to such projects will also not be made public. This means that the government can classify a fracking project as ‘strategic’ to India’s national energy security, exempting it from disclosing information, including the findings of the EIA project reports.

According to the DGH guideline, fracking projects should be evaluated using five fracking-specific TORs. These TORs include checking the integrity of wells, adequacy of the pit area, monitoring vibration levels, community sensitisation plans, and having a dedicated website to share information on the fracturing process. However, none of these fracking-specific TORs were considered while granting the two exploratory fracking projects environmental clearances before the 2020 exemption.¹¹⁵

Instead, the two exploratory EIAs focused on the general TORs used for conventional drilling processes. In doing so, both EIA reports acknowledge that fracking poses peculiar risks, especially regarding water resources. Still, they did not assess the viability of their projects based on the fracking-specific TORs. Neither of the EIA reports reveals the water source for conducting fracking in the proposed well; these reports also do not explain the risks faced by fracking projects in other jurisdictions, which could help local communities understand the probable risks involved in fracking. Also, the EIA reports are highly technical, which may preclude local communities from appreciating the risks involved in these activities.

5.2. Inclusion

Local communities in India may only participate in the decision-making process regarding proposed fracking projects through the EIA process once a project proposal is filed for environmental clearance for commercial-level shale gas fracking. However, given that there are currently no such licences applied for in India, the potential impact of these projects on society is uncertain. Fracking involves land acquisition, changes in land use patterns, and the rationing of water resources, all of which have significant implications for densely populated areas in India.¹¹⁶ Without sufficient scientific information on how fracking projects impact surrounding areas and communities, it is challenging to determine the impact of proposed projects on local communities, including minorities and tribal communities.

In this context, public hearings held while granting environmental clearance to the two exploratory fracking projects done before the 2020 exemption provide some useful insights. These two projects were in different regions of India. For the project in Gujarat, the EIA report stated that the estimated population surrounding the project site is around 1.7 million. The public hearing was attended by 114 people, of whom 11 posed questions regarding the project to the project proponent.¹¹⁷ All 11 questions were either about the compensation the people would receive for the land that the project proponent would use or the welfare projects that the project proponent would run in the areas surrounding the fracking as part of their corporate social responsibility. None of the questions posed were regarding the fracking process or the fracking-specific risks.

The second project is in the Indian state of Andhra Pradesh.¹¹⁸ Its EIA report does not contain information about the total number of people living in the area surrounding the fracking site (instead, the EIA gives the estimated population of the whole region, which is 8 million). The report has no information on how many people attended the public hearing. However, it lists questions asked during the public hearing. 22 people asked the project proponent questions regarding the project. Of these, three questions were fracking-specific (sourcing freshwater during fracking, fracking-specific environmental and public health risks, and lack of community sensitisation programmes on the impact of fracking). In this project, unlike the project in Gujarat, the participants of the public hearing asked fracking-specific questions. Arguably, this change can be attributed to the fact that in this project, the participants who asked questions were members of opposition political parties.

In both the projects, the local community comprises predominantly farmers and both the reports briefly state that the projects could lead to chemical spillage but do not explain in detail the scale and magnitude of such spillage. The project proponent asserted that they have the requisite skills and will take precautionary measures by monitoring air and water quality in the nearby areas and keeping the local community informed. Since 2020, neither of these two projects has submitted a request for commercial scaling. Therefore, no information is available to the public on the impact of these projects.

Although the general impacts of fracking on the local communities and the environment are widely reported,¹¹⁹ the evidence base is still evolving in pinpointing exactly what impacts these two proposed fracking projects in India will have on the surrounding regions and local communities. For instance, a recent paper highlights how these 56 fracking projects could cause water security issues in India, especially by diverting agricultural water to the oil and gas companies.¹²⁰

The lack of information available to the public and the absence of opportunities for local communities to participate in the decision-making process at the exploration stage raise significant procedural concerns about how fracking is presented as a transitional technology in India. While there is an opportunity within the EIA framework to engage in decision-making, the 2020 amendment limits this opportunity to when the project reaches the commercial stage.

5.3. Influence

Local knowledge plays a vital role in energy project decision-making, and its mobilisation depends on how well the local community is informed about the proposed new technology. The DGH recommends that the project proponent should conduct community sensitisation programmes related to fracking during the exploration stage.¹²¹ However, none of these programmes were conducted before the public hearing was held in the two exploratory EIAs. A lack of information on a project can prevent people from forming informed opinions on a proposed development project, thereby strategically barring them from protecting their interests and exerting influence. Despite a vibrant history of protest and environmental dissent, India has experienced relatively limited opposition to shale gas fracking projects compared to the Global North, where a strong coalition exists against fracking projects.

In this context, Olofsson and others¹²² found a lack of debate among the various stakeholders on the impact of shale gas fracking in India, stating that the ‘ … [s]hale oil and gas policy subsystem in India features a dominant pro-coalition with nearly non-existent opposition’.¹²³

There could be two reasons for the current pro-fracking approach in India. First, unlike the Global North, the Indian government has not sufficiently assessed the impact of fracking on local communities. This lack of information has possibly resulted in a lack of awareness regarding the true scale of the impact of fracking on the local environment and communities. Moreover, since a single licensing policy has been implemented, whether a project proponent intends to use fracking in a contract area has become unclear. The announcement of such information is further delayed as the requirement to obtain environmental clearance at the exploration stage is waived. Therefore, a lack of information has made it difficult to assess how proposed projects would impact stakeholders such as farmers and coal mining workers. Building an anti-fracking coalition and influencing decision-making, therefore, is difficult in such a situation.

Second, unlike the Global North, India faces issues regarding stable and reliable energy access. Thus, the kind of opposition that the Global North faces against fracking may not be found in India.

The pro-fracking stance among the Indian population may, however, be changing. In 2021, several media reports highlighted protests against a hydrocarbon project which allegedly plans to use fracking technology.¹²⁴ The main contention of the protesting farmers is that the fracking process would deplete the groundwater resources in India, leaving no water for the farmers to grow their crops.

The absence of a well-defined process to guarantee fairness in allocating the advantages and drawbacks associated with proposed fracking initiatives in India is a significant concern. This deficiency of procedure that ensures fair and meaningful participation, which is a crucial component of procedural justice, exacerbates the issue of procedural injustice in India. Furthermore, these issues extend to the other two fundamental principles of energy justice – recognition and distribution – as there is currently no system in place to ensure an even-handed distribution of the advantages and disadvantages. Furthermore, minorities and local communities living in proximity to a proposed fracking project are not granted a voice in decision-making until a public hearing is conducted during the commercial scaling of the project. This scenario underscores the procedural injustices and could potentially lead to constitutional litigation for the violation of fundamental rights.

6. Recommendations

The Indian constitution mandates that local communities must have fair and meaningful participation in the decision-making process. This section offers four recommendations on integrating the three core aspects of procedural justice into the fracking-led coal-to-gas transition pathway in India.

First, the federal government should commission a scientific inquiry to investigate how proposed fracking projects in India could impact the environment and local communities. Such studies in the Global North are common before allowing fracking projects at either exploratory or commercial levels.¹²⁵ Such scientific studies contextualise existing knowledge on fracking with country-specific factors such as the geographical and geological structure of the rocks and energy poverty issues in India. The Ministry of Environment, Forest, and Climate Change in India is equipped with scientific and financial resources to conduct such a study in collaboration with the Indian government’s think tank, NITI Aayog. One such nationwide scientific study¹²⁶ on the water resources in India helped not only local communities to understand the status, quantity, and quality of water but also lawyers and researchers to analyse how fracking projects can impact India’s water security.

Second, after carrying out scientific inquiries, local and federal governments should establish communication channels to disseminate information about fracking-related risks to local communities. India’s diversity, with over 22 constitutionally recognised languages,¹²⁷ makes establishing communication channels in vernacular languages necessary. As all fracking projects are located near agricultural communities and in water-stressed areas, the Indian government must communicate the risks and benefits of such projects to the agrarian communities.

Third, regulations surrounding fracking need to be redesigned to include a wider range of stakeholders in the decision-making process. The federal government should review recent amendments to the EIA and ensure that regulatory structures not only involve but also value the input of local communities. This can be achieved by decentralising the EIA process and allowing state governments greater flexibility in involving local communities in the decision-making process. In other words, state governments should be given more power to involve local communities in the EIA process.

Fourth, the Indian government should analyse how fracking will affect the socio-economic conditions of local communities. As a starting point, this can be done by commissioning a study independent of the scientific study, as recommended earlier. The study should focus on contextualising the fracking experience in the Global North, most notably the US, as per the socio-economic conditions of the local communities in India. For instance, the Indian government must consider whether fracking can help India phase out coal, and if so, how does India plan to integrate people employed in the coal sector within its coal-to-gas transition mission? Additionally, how would fracking, being a water-intensive technology, impact India’s agricultural-based farmers and India’s agricultural communities in general? Such socio-economic contextualising of fracking-specific scientific information requires decentralisation of fracking regulatory structures, allowing local governments to engage with communities to contextualise fracking-specific risks accordingly.

7. Conclusion

India faces the challenge of increasing its energy production while decreasing its greenhouse gas emissions. One solution to this problem is transitioning from coal to natural gas, which can help reduce India’s greenhouse gas emissions while meeting the increasing demand for electricity. India is exploring shale gas extraction through fracking to achieve this and has announced 56 fracking projects. However, fracking can pose risks to the environment and public health. Currently, no scientific assessment has been commissioned by the government at the national or subnational level on how these fracking projects may impact the local community and the surrounding environment.

In addition, due to the Indian government’s single-licensing policy and the environmental clearance exemption for exploratory fracking projects, the public cannot access information on different fracking projects. This lack of knowledge means that local communities residing near proposed fracking projects do not have access to information on the impact of these projects. Furthermore, the first opportunity for the local community to participate in fracking-related decision-making is when the project files an environmental clearance application for extracting shale gas commercially. This limits the influence that local communities can have on decision-making.

When analysed from an energy justice perspective, this regulatory framework reveals several procedural energy justice issues. These include a lack of scientific information related to fracking-related risks and benefits; non-inclusion of different stakeholders (local communities, minorities, and different state and non-state actors) in the fracking-related decision-making process in India, especially at the exploration stage; and the restriction of the influence of local communities by hindering the mobilisation of local knowledge. These energy justice issues in fracking could violate the procedural rights of Indian citizens that are guaranteed under the Indian constitution. To address these issues, this paper has identified core aspects of procedural energy justice that overlap with recognition and distributive justice and provided four recommendations.

Notes

1 Paris Agreement (adopted 12 December 2015, in force 4 November 2016) 3156 UNTS; art 2(1)(a) and 4(1), (Paris Agreement)

2 Dan Welsby and others, ‘Unextractable Fossil Fuels in a 1.5°C World’ (2021) 597 Nature 230–31

3 Shashi Kant Yadav, Gopal K Sarangi and MP Ram Mohan, ‘Hydraulic Fracturing and Groundwater Contamination in India: Evaluating the Need for Precautionary Action’ (2020) 38 Journal of Energy & Natural Resources Law 47

4 India’s Ministry of Petroleum & Natural Gas (2023) ‘Government Has Set Target to Increase Share of Gas in Energy Mix Up to 15 Per Cent by 2030’, <https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1917439> accessed 18 January 2024

5 Darrick Evensen and others ‘Growing importance of climate change beliefs for attitudes towards gas' (2023) 13 Nature Climate Change 240

6 See US Energy Information Administration natural gas export data of 2023 here <www.eia.gov/todayinenergy/detail.php?id=61483> accessed 7 May 2024

7 Fang-Yu Liang and others, ‘The Role of Natural Gas as a Primary Fuel in the Near Future, Including Comparisons of Acquisition, Transmission and Waste Handling Costs of as with Competitive Alternatives’ (2012) 6 Chemistry Central Journal 1, 2

8 Government of India, ‘Net Zero Emission Target’, 3 August 2023 <https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1945472> accessed 15 April 2024

9 Mahyar Kamali Saraji and Dalia Streimikiene, ‘Challenges to the Low Carbon Energy Transition: A Systematic Literature Review and Research Agenda’ (2023) 49 Energy Strategy Reviews 101163

10 Mayank Agarwal, ‘About 40 Percent of India’s Districts Have Some Form of Coal Dependency’ (Mongabay India, 1 July 2021) <https://india.mongabay.com/2021/07/about-40-percent-of-indias-districts-have-some-form-of-coal-dependency/> accessed 15 January 2024

11 Seema Prasad Saran, ‘The Just Transition Framework is Unjust’ (Observer Research Foundation, 1 May 2023) <www.orfonline.org/research/the-just-transition-framework-is-unjust#:~:text=The%20coal%20sector%20in%20India,structure%20of%20JET%2DP%20deals> accessed 15 January 2024

12 Avner Vengosh and others, ‘A Critical Review of the Risks to Water Resources From Unconventional Shale Gas Development and Hydraulic Fracturing in the United States’ (2014) 48 Environmental Science & Technology 8334

13 Sari Kovats and others, ‘The Health Implications of Fracking’ (2014) 383 The Lancet 757; also see Ruth McDermott-Levy, Nina Kaktins and Barbara Sattler, ‘Fracking, the Environment, and Health’ (2013) 113 AJN The American Journal of Nursing 45

14 Longxiang Li and others, ‘Unconventional Oil and Gas Development and Ambient Particle Radioactivity’ (2020) 11 Nature Communications 5002

15 Birgit C Gordalla, Ulrich Ewers and Fritz H Frimmel, ‘Hydraulic Fracturing: A Toxicological Threat for Groundwater and Drinking-Water?’ (2013) 70 Environmental Earth Sciences 3875

16 Nathan F Jones, Liba Pejchar and Joseph M Kiesecker, ‘The Energy Footprint: How Oil, Natural Gas, and Wind Energy Affect Land for Biodiversity and the Flow of Ecosystem Services’ (2015) 65 BioScience 290

17 Kelly A Collins, ‘Fracking in Pennsylvania: A Spatial Analysis of Impacts on Land Cover and Land Use, the Viewshed, and the Audioshed’ [2016], <https://cupola.gettysburg.edu/cgi/viewcontent.cgi?article=1506&context=student_scholarship> accessed 19 January 2024

18 Sahana Ghosh, ‘Fracking or Food: The Oncoming Dilemma for Water-Stressed Agricultural Areas’ (Mongabay India, 10 July 2018) <https://india.mongabay.com/2018/07/fracking-or-food-the-oncoming-dilemma-for-water-stressed-agricultural-areas/> accessed 19 January 2024

19 Rebecca Lave and Brian Lutz, ‘Hydraulic Fracturing: A Critical Physical Geography Review’ (2014) 8 Geography Compass 739

20 Richard Davies and others, ‘Induced Seismicity and Hydraulic Fracturing for the Recovery of Hydrocarbons’ (2013) 45 Marine and Petroleum Geology 171; also see Lei Li and others, ‘A Review of the Current Status of Induced Seismicity Monitoring for Hydraulic Fracturing in Unconventional Tight Oil and Gas Reservoirs’ (2019) 242 Fuel 195

21 Kirsten Jenkins and others, ‘Energy Justice: A Conceptual Review’ (2016) 11 Energy Research & Social Science 174; also see Max Lacey-Barnacle, Rosie Robison and Chris Foulds, ‘Energy Justice in the Developing World: A Review of Theoretical Frameworks, Key Research Themes and Policy Implications’ (2020) 55 Energy for Sustainable Development 122

22 Stefan Bouzarovski and Neil Simcock, ‘Spatializing Energy Justice’ (2017) 107 Energy Policy 640

23 N Van Uffelen, B Taebi and Udo Pesch, ‘Revisiting the Energy Justice Framework: Doing Justice to Normative Uncertainties’ (2024) 189 Renewable and Sustainable Energy Reviews 113974

24 Xinxin Wang and Kevin Lo, 'Just transition: A Conceptual Review' (2021) 82 Energy Research & Social Science 102291

25 Carlos Tornel, ‘Decolonizing Energy Justice from the Ground Up: Political Ecology, Ontology, and Energy Landscapes’ (2023) 47 Progress in Human Geography 43

26 Maria Apergi and others, ‘An Energy Justice Index for the Energy Transition in the Global South’ (2024) 192 Renewable and Sustainable Energy Reviews 114238

27 Raphael J Heffron, ‘Applying Energy Justice into the Energy Transition’ (2022) 156 Renewable and Sustainable Energy Reviews 111936

28 Ibid

29 Sanya Carley and David M Konisky, ‘The Justice and Equity Implications of the Clean Energy Transition’ (2020) 5 Nature Energy 569

30 Darren McCauley and Raphael J Heffron. ‘Just Transition: Integrating Climate, Energy and Environmental Justice’ (2018) 119 Energy Policy 1, at 2–6

31 Sheila Jasanoff, ‘Just Transitions: A Humble Approach to Global Energy Futures’ (2018) 35 Energy Research & Social Science 11

32 CG Monyei and others, ‘Examining Energy Sufficiency and Energy Mobility in the Global South Through the Energy Justice Framework’ (2018) 119 Energy Policy 68

33 Benjamin K Sovacool and others, ‘New Frontiers and Conceptual Frameworks for Energy Justice’ (2017) 105 Energy Policy 677

34 Benjamin K Sovacool and Michael H Dworkin, Global Energy Justice (Cambridge University Press 2014) 1–31

35 Georgia Piggot and others, ‘Realizing a Just and Equitable Transition Away from Fossil Fuels’ (2019) 2016 Development 202033

36 Frances A Marlin-Tackie, Shurraya A Polunci and Jessica M Smith, ‘Fracking Controversies: Enhancing Public Trust in Local Government Through Energy Justice’ (2020) 65 Energy Research & Social Science 101440

37 James Griffiths, ‘Fracking in the UK: Expanding the Application of an Environmental Justice Frame’ (2019) 24 Local Environment 295

38 Matthew Cotton, ‘Fair Fracking? Ethics and Environmental Justice in United Kingdom Shale Gas Policy and Planning’ (2017) 22 Local Environment 185

39 Yadav, Sarangi and Mohan (n 3)

40 Government of India (2010) ‘India US MOU on Shale Gas’ <https://pib.gov.in/newsite/PrintRelease.aspx?relid=66820> accessed 10 April 2024

41 Ashish Gulagi and others, ‘Electricity System Based on 100% Renewable Energy for India and SAARC’ (2017) 12 PLOS One 1, at 2

42 Kristin Olofsson and others, ‘A Dominant Coalition and Policy Change: An Analysis of Shale Oil and Gas Politics in India’ (2018) 20(5) Journal of Environmental Policy & Planning 645–60

43 Article 246, Constitution of India

44 Seventh Schedule, The Constitution of India

45 Ibid

46 Cauvery Water Dispute Tribunal, AIR 1992 SC 522; also see Association of Natural Gas v Union of India

47 Association of Natural Gas v Union of India (2004) 4 SCC 489

48 In Special Reference No. I of 2001 v Under Article 143(1) of Constitution of India 2004 (3) SCR 534; also see State of Bombay v FN Falsara (1951 AIR 318)

49 Natural Resources Allocation, in re, Special Reference No. 1 of 2012, [2012] 9 S.C.R. 311

50 Christian Schall, ‘Public Interest Litigation Concerning Environmental Matters Before Human Rights Courts: A Promising Future Concept?’ (2008) 20(3) Journal of Environmental Law 417

51 Association of Natural Gas v Union of India, 2004 4 SCC 489

52 MC Mehta v Kamal Nath (1997) 1 SCC 388, at 19

53 Adani Gas Limited v Union of India, Civil Appeal No. 1261 of 2019, at 33

54 Sanjeev Coke Manufacturing Company v Bharat Coking Corporation Limited, AIR 1983, SC 239

55 See S.O.1533 (E) dated 14 September 1996 <https://environmentclearance.nic.in/writereaddata/EIA_Notifications/1_SO1533E_14092006.pdf> accessed 15 April 2024

56 Ibid

57 National Green Tribunal Act, 2010

58 T Mohan Rao v Ministry of Environment and Forest (MOEF), Appeal no 23/11, National Green Tribunal (NGT); and Ossie Fernandes v MOEF, Appeal no 12/2011, NGT

59 Adivasi Majdoor Kisan Ekta Sangthan v MOEF, Appeal No. 3/2011

60 Samata v Union of India, Appeal No. 9 of 2011 (CZ), NGT

61 Ibid

62 See Ossie Fernandes v MOEF (n 58)

63 Neil Simcock, ‘Procedural Justice and the Implementation of Community Wind Energy Projects: A Case Study from South Yorkshire, UK’ (2016) 59 Land Use Policy 467

64 Raphael Heffron and others, ‘The Identification and Impact of Justice Risks to Commercial Risks in the Energy Sector: Post COVID-19 and for the Energy Transition’ (2021) 39 Journal of Energy & Natural Resources Law 439

65 Shyam Divan and Armin Rosencranz, Environmental Law and Policy in India: Cases and Materials (Oxford University Press 2022) 625–31

66 Nitin Kumar Yadav and Anubha Aggarwal, ‘Centre Made Over 100 Changes in Environment Impact Assessment Notification in Past 5 Years’ (The Wire, 10 April 2023), <www.downtoearth.org.in/news/environment/centre-made-over-100-changes-in-environment-impact-assessment-notification-in-past-5-years-88619> accessed 20 January 2024

67 Heffron (n 27)

68 Indian Ministry of Petroleum and Natural Gas (2012) ‘Policy Guidance for Exploration and Exploitation of Shale Gas’ <https://mopng.gov.in/files/ExpAndProd/Unconventional/7.ShaleGasPolicy.pdf> accessed 18 January 2024

69 Ibid

70 Nicholas Woodroof, ‘Schlumberger Awarded Fracking Contract in India’ (Oilfield Technology, 14 April 2022) <www.oilfieldtechnology.com/hydraulic-fracturing/14042022/schlumberger-awarded-fracking-contract-in-india/> accessed 10 April 2024

71 Indian Parliament, Lok Sabha Unstated Question No 2728 answered on 16 March 2023 <https://eparlib.nic.in/bitstream/123456789/1931024/1/AU2728.pdf> accessed 15 April 2024

72 Kathleen Karner, ‘Fracturing the Environment: Exploring Potential Problems Posed by Horizontal Drilling Methods’ (2011) 1 Baltimore Journal of Land and Development 235

73 Claudia Hitaj, Andrew J Bostell and Jeremy G Weber, ‘Fracking, Farming, and Water’ (2020) 146 Energy Policy 1117999

74 Ian C Scotchman, ‘Shale Gas and Fracking: Exploration for Unconventional Hydrocarbons’ (2016) 127(5) Proceedings of Geologist’ Association 535

75 Ibid

76 See Ministry of Environment and Forest and Climate Changes Environmental Clearance Repository at ‘Exploratory Drilling of 11 Wells for Shale Oil/Shale Gas in Cambay Basin, Gujarat, <https://environmentclearance.nic.in/onlinesearchnewrk.aspx?autoid=10675&proposal_no=IA/GJ/IND2/64773/2016&typep=EC>; and ‘Exploratory Drilling of 5 Wells for Shale Oil/Shale Gas in KG Basin, Andhra Pradesh’, <https://environmentclearance.nic.in/onlinesearchnewrk.aspx?autoid=6638&proposal_no=IA/AP/IND2/42009/2016&typep=EC> accessed 7 May 2024

77 Ibid

78 Tadeusz W Patzek and others, ‘Generalized Extreme Value Statistics, Physical Scaling, and Forecasts of Gas Production in the Barnett Shale’ (2019) 33 (12) Energy & Fuels 12154

79 Ibid

80 Ian C Scothcman (n 74); also, see Ministry of Environment and Forest’s Environmental Clearance Repository (n 76)

81 See Policy Guidance for Exploration and Exploitation of Shale Gas (n 68)

82 See India’s National Data Repository, ‘New Exploration Licensing Policy’, <www.ndrdgh.gov.in/NDR/?page_id=589> accessed 18 January 2024

83 Ibid

84 Ibid

85 Government of India, ‘Hydrocarbon Exploration and Licensing Policy’ (2016) <https://pib.gov.in/newsite/printrelease.aspx?relid=137638>, accessed 18 January 2024

86 See Rule 3 (k) of Petroleum and Natural Gas Rules, 1959

87 Directorate General of Hydrocarbon, ‘Hydrocarbon Exploration and Licensing Policy’ <http://pib.nic.in/newsite/PrintRelease.aspx?relid=137638> accessed 12 January 2024

88 Government of India (2018), ‘Cabinet Approves Policy Framework for Exploration and Exploitation of Unconventional Hydrocarbons’ (2018) <https://pib.gov.in/newsite/PrintRelease.aspx?relid=181361> accessed 18 January 2024

89 Environmental Impact Assessment Notification (2006) <www.environmentwb.gov.in/pdf/EIA%20Notification,%202006.pdf> accessed 19 January 2024

90 Directorate General of Hydrocarbon, ‘Guidelines for Environmental Management during Shale Gas/Oil Exploration and Production’ <http://dghindia.gov.in/assets/downloads/59645efa09b1cGuidelines_for_Environmental_Management_during_Shale_Gas_Oil_Exploration_and_Production.pdf> accessed 19 January 2024

91 See Yadav, Sarangi and Mohan (n 3)

92 See Environmental Impact Assessment Notification (2006), section 7 (n 89)

93 See Ministry of Environment Forest and Climate Change's Environment Clearance Repository (n 76)

94 AKA Rathi, ‘Evaluation of Project-Level Environmental Impact Assessment and SWOT Analysis of EIA Process in India’ (2017) 67 Environmental Impact Assessment Review 31

95 AKA Rathi, ‘Development of Environmental Management Program in Environmental Impact Assessment Reports and Evaluation of its Robustness: An Indian Case Study’ (2019) 37 Impact Assessment and Project Appraisal 421

96 See Adani Gas Limited v Union of India, Civil Appeal No. 1261 of 2019

97 See Appendix IV of Environmental Impact Assessment Notification (2006) (n 89)

98 Ibid

99 Ibid

100 Ibid

101 Ibid

102 See the Government of India amendment to the EIA process at <https://dghindia.gov.in/assets/downloads/5e26b9dacbb53Gazette_Notification.pdf> accessed 25 January 2024

103 See Ministry of Environment Forest and Climate Change’s Environmental Clearance Repository (n 76)

104 Ibid. See Government of India’s environmental clearance data repository, <https://environmentclearance.nic.in/proposal_status_new1.aspx>

105 See Exploratory Drilling of 11 Wells for Shale Oil/Shale Gas in Cambay Basin, Gujarat (n 76) 141

106 See ibid, 140–50

107 See Exploratory drilling of 5 wells for shale oil/shale gas in KG Basin, Andhra Pradesh (n 76) 1–5, 12

108 Ibid

109 See McDermott-Levy, Kaktins and Sattler (n 13)

110 Yosra Abid, ‘Reflection on Shale Gas Fracking Risk Assessment and Management in the United States’ (2020) 11 Wash J Env't L & Pol'y 1

111 Peter Cameron and others, ‘Across the Universe of Shale Resources – A Comparative Assessment of the Emerging Legal Foundations for Unconventional Energy’ (2018) 11 The Journal of World Energy Law & Business 283

112 See Yadav, Sarangi and Mohan (n 3), 50–55

113 Ibid

114 Amendment to Environmental Impact Assessment Notification (2006) made on 20 April 2022, <https://environmentclearance.nic.in/writereaddata/EIA_Notifications/63_SO1886E.pdf> accessed 20 January 2024

115 See Ministry of Environment Forest and Climate Changes Environmental Clearance Repository (n 76)

116 Ibid

117 Ibid

118 See Andhra Pradesh EIA, Public Hearing Report, <https://environmentclearance.nic.in/DownloadPfdFile.aspx?FileName=yEDKVijpkyvz5aZUKdsXMszQx+s+DMukXj8OyDiIU8MT9rD6CIdS5tKreNRaz15g&FilePath=93ZZBm8LWEXfg+HAlQix2fE2t8z/pgnoBhDlYdZCxzU58BnhvJgYCZmnh7L8vuUpAjRlPQFm4dqIX0YXm9oQdIXvs4CpAbUBzBFrV7e1RFE=> accessed 18 April 2024

119 See Yadav, Sarangi and Mohan (n 3)

120 Shashi Kant Yadav, Chhaya Bhardwaj and Gopal K Sarangi, ‘Emerging Regulatory Gaps in Fracking-Specific Water Security Issues in India: Lessons from the United States “Shale Revolution”’ (2024) Environmental Law Review <https://doi.org/10.1177/14614529241230680> accessed 12 April 2024

121 See the conclusion of the Directorate General of Hydrocarbon (n 87)

122 Olofsson and others (n 42)

123 Ibid at 657

124 Nityananad Jayaraman, ‘All You Need to Know About the Neduvasal Protests Against Hydrocarbon Extraction’ (The Wire, 1 March 2017) <https://thewire.in/environment/neduvasal-protest-oil-gas> accessed 18 January 2024

125 For instance, see European Parliament resolution of 21 November 2012 on the environmental impacts of shale gas and shale oil extraction activities (2011/2308(INI)); also see UK Academy of Engineering, ‘Shale Gas Extraction in the UK: A Review of Hydraulic Fracturing’ (June 2012) <https://raeng.org.uk/media/vvufffxy/shale_gas.pdf#:~:text=The%20health%2C%20safety%20and%20environmental,implemented%20and%20enforced%20through%20regulation> accessed 14 April 2024

126 Niti Aayog, ‘Composite Water Management Index: A Tool for Water Management’, <https://social.niti.gov.in/uploads/sample/water_index_report.pdf> accessed 12 April 2024

127 Eight Schedule, The Constitution of India