Ineos Loses Scottish Fracking Challenge

21.06.2018 -

Score one for the Scottish government – for now. Reaching a verdict fairly quickly after hearing a challenge brought by Ineos Upstream and gas producer Reach CSG against Scotland’s moratorium on shale gas exploration, the Court of Session in Edinburgh has ruled that the chemical group doesn’t have a case, as there is actually no ban in place.

Announcing the decision on Jun. 19, the lord advocate, Lord Pentland, said statements by Scottish ministers that fracking was prohibited were misleading and “did not accurately express the legal effect of the decisions” involved. However, he said the legal question is not whether the government had accurately described or commented on its understanding of the legal effect of steps taken, but what the effect actually is.

In asking for a judicial review, Ineos had argued that Scottish ministers acted illegally last year when they converted a moratorium into an indefinite, effective ban. After a two-year waitand a public consultation that overwhelmingly rejected fracking, the Scottish Parliament embedded the moratorium in its long-term National Planning Framework.

While at the time energy minister Paul Wheelhouse said adopting the planning route would make further legislation unnecessary, as changing the framework requires parliamentary approval, Green and Labour parliamentary factions argued that without being anchored in law, the move could be challenged. Ironically, the court’s decision suggests that, had the government taken a different route, it could have lost the challenge, some commentators said.

In a comment of his own, Wheelhouse said the decision “indicates the extensive process of research and consultation which the Scottish government has undertaken since implementing the temporary moratorium in 2015.” Its preferred position, he said, “is not to support unconventional oil and gas extraction in Scotland, and that position remains unchanged.”

The minister reiterated his government plans for a Strategic Environmental Assessment (SEA) and a Business and Regulatory Impact Assessment before it decides which further steps to take. The SEA is currently under way, and the findings “will be carefully considered,” he said.

In the meantime, Wheelhouse added, “a moratorium is in place which means no local authority can grant planning permission, and ministers would defer any decision on any planning application that did come forward until the policymaking process is completed.”

NGO Friends of the Earth Scotland, which the court had allowed a formal intervention in the court case, urged the government to move forward with the decision-making process “as swiftly as possible and use the powers now available to them to legislate for a full ban.”

The outcome of the challenge effectively puts paid to Ineos Shale’s plans to sue the government for lost business. Operations director Tom Pickering said the government “will now have to make a decision based on facts and science rather than prejudice and political expediency. With an environmental assessment and business and regulatory assessments still to be carried out, there may never be a fracking ban in Scotland,” he said.