Pipeline risk and regulation on the Australian urban-rural fringe. An invisible legal geography.

This is a copy of the presentation I gave at the 2017 Annual Meeting of the Law and Society Association at Mexico City.

Cite as: Brad Jessup, ‘Pipeline risk and regulation on the Australian urban-rural fringe. An invisible legal geography’ (Speech delivered at the International Meeting on Law and Society, Mexico City, 20 June 2017).

Overview

The goal of this presentation is to make sense of an extensive, mostly doctrinal, body of research on the regulation of pipelines; on the intersection between pipelines hazard regulations; and on planning laws and zoning controls.

I argue that planning laws and zoning controls are more appropriate than the prevailing regulatory approach to reduce the risk of harm arising from sensitive land uses and high pressure gas pipelines meeting on the urban-rural divide.

A critical legal geography perspective supports this conclusion because planning laws  visibilise and materialise objects and landscapes, and make information about objects and landscapes explicit. These features make it a suitable regulatory option to manage pipeline explosion risk. Afterall, risk is best manage when it is seen, tangible and known. My contribution to legal geography concepts is modest. This presentation will instead offer empirical support for the more theoretical ideas of information, visible and material geographies.

Introduction

In 2012, I completed a broad survey of land use planning and risk regulation of Australian high pressure gas transmission pipelines for the Energy Pipelines Co-operative Research Centre. I am drawing on that work for the purpose of this presentation, so I acknowledge the financial support I received in conducting that project.

The earlier research and this presentation are focussed on the high pressure gas transmission pipelines that exist in three networks across Australia. Most of the research effort and attention is on the eastern network, crossing Australia’s most populated areas.

The industry funded research was triggered by concerns that Australian urban development was unknowingly “encroaching” upon pipelines and into privately mapped “safety buffers” for high pressure gas transmission pipelines in historically rural areas.

Concerns were especially heightened in south-east Queensland, enveloping Brisbane; and in northern Adelaide, in the state of South Australia, by the release of long term strategic city plans that showed to the industry that residential development was being strategically directed to locations where these rural pipelines traversed.

Change of land use within the city was not a concern: there, high pressure gas transmission pipelines are buried deeply, are made of reinforced materials, and are covered by layers of concrete: they are not simply out of view, but out of touch.

Change of land use outside of the city – or “encroachment” as the industry frames the phenomenon – affects pipelines that were constructed decades ago expecting that for the duration of the material life of the pipeline they would be situated in a farming setting; so the pipeline material, depth and coverage was not, and is not, suitable for a residential context.

It is very much an internalised concern – that is: a concern within industry – because only industry members; with the knowledge of pipeline location, hazard and risk contours (typically called ‘radiation contours’) understand the consequences. The wider public has no real way of knowing about the safety implications of these pipelines and humans meeting.

Indeed, the impression from the strategic planning documents suggests that parts of government does not really know either. By way of example, the Adelaide Plan locates pipelines on a broad scale map, and notes as policy to ‘define and protect strategic infrastructure sites and corridors from inappropriate development to ensure the continued functionality of the services they provide’. Yet the plan directs residential development around the once rural town of Gawler adjacent to rural pipelines.

San Bruno

The industry’s concern was heightened following the San Bruno gas explosion in California in 2010. As other scholars researching pipeline risk and security have demonstrated (Peter James Forman in the UK and Danya Scott in Canada), loss of life and property damage have triggered policy and regulatory changes for pipelines.

What happened in San Bruno is what the Australian industry is determined to avoid. San Bruno involved the explosion of a natural gas pipeline in the south of San Francisco. Post-event evaluations attributed the cause of the explosion to deteriorating material and poor pipeline maintenance. The age of the pipeline meant it could not accommodate modern testing devices. The review of the explosion by the National Transport Safety Board clearly implies, without concluding, that the pipeline built in the 1950s should have been upgraded before residential development began in the estate.

The explosion led to the death of eight people and the destruction of 37 homes, many of which were built right up to the gas pipeline easement. The pipeline was beneath a lightly vegetated corridor behind household fences, but the evidence showed that the mere presence, not even the risk, of the pipeline was not well understood by those people resident in areas of potential risk.

There are lessons to take from the review of the tragedy. As part of its safety management program, the pipeline operator, PG+E, had written to 15,000 residents proximate to the pipeline. Its subsequent consultations revealed that more than half residents did not recall seeing any pipeline safety information from PG+E and just under half had a poor understanding of the location of the pipeline. In sum, there was poor visibility of information and material.

My research

What was apparent from my research in Australia was that pipeline explosion risk was being assessed and regulated separately from and mostly invisible to planning laws (though sometimes opaquely visible to some planning officials and sometimes with vague strategic support to protect infrastructure in planning policy: a factor that amounts to a not irrelevant consideration for planning decisions).

A similar conclusion about the UK was reached by Gordon Walker, ‘Risk, Land Use Planning and Major Accident Hazards’ in Chris Miller (ed), Planning and Environmental Protection: A Review of Law and Policy (2001, Hart).

Predominately, high pressure gas transmission pipelines in Australia are regulated in codes and standards, which remain some of the most inaccessible forms of regulation, available only to those willing to pay to view them. They are regulations situated along a blurry boundary between public and industry self-regulation. This raises questions about the private domain over common resources and the function of governments, as explored by Eve Darian-Smith, ‘Who Owns the World? Landscapes of Sovereignty, Property, Dispossession’ (2016) 1 Journal of the Oxford Centre for Socio-Legal Studies. Within natural resources policy and practice, Darian-Smith writes of resources becoming enclosed – out of research of ‘ordinary people’ and transformed from the places in which they are located. The state becomes sidelined.

As it is in part with pipelines being exempt from planning laws throughout the country and rarely triggering EIA laws. Environmental and safety assessments are undertaken centrally as part of the licensing process for pipelines. Not locally, not publicly, not controversially.

Where planning law is involved in the regulation of spaces around pipelines it is often where pipeline operators have developed relationships with local municipal planners or where there have been adopted ad-hoc ‘gas pipeline corridor’ setbacks – for instance of up to 660m in parts of WA. In those circumstances, those planners make decisions about land use changes and developments proximate to pipelines with knowledge of location and risk provided on an informal or guideline basis. This industry co-ordinated or co-opted approach to regulation reflects findings from Peter James Forman’s research (‘Securing Natural Gas: Entity-Attentive Security Research’, 2016), which has found that in the UK pipeline safety is informally integrated within the planning system. There, the health and safety agency (UK HSE, HSE’s Land Use Planning Methodology (2016)), rather than pipelines operators, provide maps and guidance on near-pipe approval decisions, and – significantly – provide cumulative risk assessment guidance.

Regulation of pipeline safety in the context of changing land use

There is a common framework for pipeline regulation around Australia, even though laws are made at the sub-national level. The common framework is attributable to the national standard to which all laws reference and regulators defer.

At the state level, by way of example, the Victorian Pipelines Act 2005:

  • Exempts the holder of a pipeline licence from the requirement to obtain a planning permit under the Planning and Environment Act 1987 (s 85).
  • Prevents the building within three metres from a pipeline (s 120) or digging within three metres of a pipeline (s 118) within consent or authority – a provision designed only to avoid contact with pipelines (to reduce the likelihood of harm not to alter the consequences of harm).
  • Imposes a duty to minimise hazards and risk on the pipeline operator (s 124) in these terms:

A licensee must manage any pipeline operation so as to minimise as far as is reasonably practicable—(a) hazards and risks to the safety of the public arising from the pipeline operation; and (b) hazards and risks to the environment arising from the pipeline operation.

What is reasonably practicable is explained using conventional risk assessment models (s 125): considering the likelihood and severity of harm arising, knowledge of risks and risk avoidance, and the availability, suitability and affordability of eliminating or reducing risk.

  • Requires the development and review of safety management plans [and separate environmental management plans] consistent with the relevant Australian Standard (ss 126-132).
  • Creates a Pipelines Register of licences (s 186).

Australian Standard (AS) 2885

AS2885 is the overarching Standard that applies to the pipeline industry in Australia. It specifies best practice for the design, construction, testing, operation and maintenance of high pressure gas and petroleum transmission pipelines.

Safety management plans must be consistent with this standard, and risk management approaches are directed by this standard.

One requirement under the standard is for the licensee to continually assess the safety of its pipelines in their landscapes. This is done by using risk contour zones devised by reference to classifications of the landscape and the existing risk management features of the pipeline. For land classified ‘urban’ a risk profile and contour zone is created depending on a pipeline’s depth, material and coverage. For land classified ‘rural’ different risk profiles and contour zones are devised.

Significantly, where there is a change of factors or landscape classification to a risk profile, the statutory duty to minimise hazards becomes especially pertinent. One extreme response to mitigate risk upon the change in classification of landscape (for instance from rural to urban) would be to replace the pipeline, deepen the pipeline, and/or cover it in concrete.

Clause 4.2.1 of the AS2885 provides:

‘For an existing pipeline, changes in land use from those for which the pipelines was designed introduce an obligation for a safety management study of the pipeline and where required, the implementation of design and/or operational changes to comply with the safety obligations of the Standard’.

Legal geographies

My research has directed me to the work of legal geographers and material, visible and information geographies, because the research concerns infrastructure that is buried and out of view. The regulation, too, is often not visible.

Irus Braverman explains (‘Hidden From Plain View: Legal Geography from a Visual Perspective’ (2010) 7 Law, Culture and the Humanities 173) that legal geography can be ‘about the hidden stuff that lies beneath the physical or the spatial’, or about what is ‘readable’ in a landscape – and vice versa.

Pipelines are hidden and buried. They are also either formally hidden from, or vaguely and inconsistently represented in, planning laws. The Australian Standard that is their primary risk regulation is not freely available; not readable if you like.

Moreover, despite it being the most specific regulatory document for high pressure gas transmission pipelines, the Australian Standard is reviewed and amended by committee out of the view of the community and Parliaments. Consequently, the community, and indeed most municipal and strategic planners, seemingly have very little understanding about risk profiles and contour zones enunciated in the Australian Standard, and no apparent way to influence this type of regulation of risk.

What appears about the Australian regulatory regime reflects Dayna Scott’s view (‘Situating Sarnia: “Unimagined communities” in the New National Energy Debate’ (2013) 25 Journal of Environmental Law and Practice 81) that the undergrounding of pipelines leads to their limited governance.

There is a burying of the socio-economic together with the material of the pipeline. The burying entrenches established social relationships and power mechanisms especially through permitting and approval laws: an idea revisited by Scott in her other work (‘The Networked Infrastructure of Fossil Capitalism: Implications of the New Pipeline Debates for Environmental Justice in Canada’ (2013) 43 Review generale de droit 11).

Through the legal process, communities become Scott’s ‘unimagined’. Or as Forman argues, ‘public consciousness’ about the pipelines becomes ‘erased’. The gas risk regulation becomes ‘concealed from everyday view’ once pipelines are in the ground. This undergrounding is done for the security of pipelines, but it also leads to a securitisation of corporate/industry interests in them.

These empirically-based perspectives lead to obvious connections with the more theoretical work of Andreas Mihalopoulos-Philippopoulos (Spatial Justice: Body, Lawscape, Atmosphere (Routledge, 2014)) who conceives a ‘lawscape’ as being different from a landscape. A lawscape is often invisible: the law is hidden despite being affective on land. Moreover ([with Sharron FitzGerald] ‘From Space Immaterial: The Invisibility of the Lawscape’ (2008) 17 Griffith Law Review 438), the invisibility of law may be a deliberate attempt to make the law ambiguous, slippery, messy and unverifiable.

Planning as an information geography

The planning system is the communities’ primary source of land use information in Australia. I want to argue that planning law and zoning controls are an information legal geography. A legal geography analysis demonstrates how planning laws visibilise  pipelines and their risk profiles, thus making them a more appropriate (at least supplementary) form of risk regulation to the pipelines laws and standard.

Trevor Pinch argues that information drawn out through planning contests has the effect of materialising infrastructure that may otherwise be materially indecipherable. His research explores an invisible fence that is translated into a barrier through planning debates by virtue of the need to situate and draw the fence (‘On making infrastructure visible: Putting the non-humans to rights’ (2000) 34 Cambridge Journal of Economics 77).

In his study of a dispute about a pipeline through the nation of Georgia (Material Politics: Disputes Along the Pipeline (John Wiley & Sons, 2013), Andrew Barry found that information – about construction, location, impacts, risks and operation – when made public through planning processes materialises pipelines. Their visibility depends on information in the public realm – the ‘production of [public] information’, he says, ‘maximis[es] visibility’.

When pipelines are regulated, and that regulation involves circulating information about location about materials, they are materialised and visibled. The evidence of the existence and site of the pipeline is in the regulation and the information.

Information and material becomes geographic because of the spatiality and temporality of public knowledge they generate. The legal dimension is often wrapped up in the question of who has access to the information, and what information remains in the private domain. Moreover, the governability of pipelines is improved as the behaviour of materials across spaces is understood through transparent and accessible information.

How are pipelines visibilised now?

Within Australia there is already an information geography of pipelines – but not at the scale that materialises or visibilises them for the community. Nor is this information geography transparent and accessible.

Each state has a list of pipeline licences, and some post on the internet licence application and management information. Where information is given about the specific location of pipelines, however, it is done mathematically or textually, not visually.

For example: the SEA Gas pipeline – connecting Victoria and SA – built during the early 2000s is not visibilisied to those communities through which it traverses despite it being listed in a pipelines register, its route being described in GPS co-ordinates, and it being mapped at a regional and suburban scale.

Because their property tenure is sometimes in an easement, pipelines may also be mapped at a fine grain. However, not all pipeline licensees have obtained easements. They have depended instead on statutory ‘corridor’ rights and laws that prevent development in these corridors as sufficient tenure.

In 2010 the Victorian Law Reform Commission (Easements and Covenants: Consultation Paper (2010)) noted the problem of such an approach:

Even owners who have held the land for some years may not know about [the pipelines], or realise the implications, until late in the process of building on the land’.

The Australian Standard also directs signage in the landscape. Yet while localised, these signs are disconnected, and in the periphery of most peoples’ vision. The research into community understanding of the San Bruno pipeline suggests that these kinds of signs go unnoticed.

Planning law can further visibilise pipelines?

Although pipelines can currently be seen and located – the scale is unhelpful to reduce risk or to make them transparent. The maps are too magnified, too granular, too obscure. The information is inaccessible and too localised.

The Victorian Law Reform Commission in 2010 argued that property statements should be issued on request detailing pipelines on a lot. Yet only those landholders with infrastructure assets on their land would be notified of the presence of such pipelines, not those who might be within the zone of risk for the pipeline. We know that zone can be as wide as 660 metres.

The only way to chart pipelines now – is to physically traverse them or to follow the easements where they exist in the land titles registry. This is not a task conducted by local council planners when confronting land use change or development applications. Nor is it done by landholders as they plan developments and subdivisions.

For other land uses and infrastructure (including linear infrastructure including roads and rail), planners already use planning maps to manage separation between offensive and hazardous land-uses from sensitive land uses – they are a tool used to ‘manage’ ‘encroachment’ (Rachel Gallagher, ‘Protecting existing uses from urban encroachment’ (2015) 14(8) Local Government Reporter 142). States have also been willing to protect existing uses on an ad-hoc way (eg speedways, airports, tips) through planning schemes. That protection is achieved through the visbilisation and creation of transparent information about hazards and risk. Planning achieves a separation; an informed and public enclosure. By separating the hazard from the vulnerable, planning reduces the consequence of risk.

As Christopher Miller and Claire Fricker have argued (‘Planning and Hazard’ (1993) 40 Progress in Planning 167), and has Barry demonstrated in his study, planning is effective to reduce risk through information and material geographies, and to both politicise hazard by making it public, and to depoliticise risk through consistency and transparency.

Through planning law, authorities and oftentimes disempowered or ‘unimagined’ communities can therefore become aware of the location, the nature and the accumulation of hazards even while the pipelines remain buried and out of view.

The Australian Pipeline Industry has developed ‘notification zones’ along pipeline routes, where it seeks to be advised by local authorities when a development application concerns land in this zone of potential risk. This is the information that it informally shares with planning officers – but it is not on planning maps and the process of referral not articulated in planning law or policy.

Where used, landholders are alerted to the notification zone only when the landholder propose to change use or develop land. But only then. There is a selective visibility. A privatised visibility. The infravisibility of pipelines; their material ambiguity; and a selective visibility persists as a result. So does the power differential and entrenched and buried social relationships that result in communities being unaware of the risk that is behind and beneath them.

This kind of visibility, information geography and material geography is inconsistent with the core purposes of planning law – of transparency, clarity and orderliness in land use and development. Making the notification zone visible and present in the planning system, however, would achieve a visible, material, information and legal geography. That is what I propose.

 

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