INEOS Lose Scottish Fracking Ban Challenge
Friends of the Earth Scotland has today welcomed a ruling from the Court of Session which refused INEOS and Reach CSG’s challenge against the Scottish Government’s ‘effective ban’ on fracking. Lord Pentland found in favour of the arguments put forward by the Scottish Government that its ‘preferred policy position’ of no support for fracking announced by Ministers last year does not amount to a legally enforceable prohibition therefore INEOS’s case is unfounded. Lord Pentland further found that since a decision had not yet been made, INEOS’s claim for compensation on the basis of a breach of its human rights was premature.
Friends of the Earth Scotland Head of Campaigns Mary Church said:
“We are delighted that INEOS has lost its challenge against the Scottish Government’s ‘effective ban’ on fracking. Today’s ruling will come as a huge relief to the thousands of people who have fought to stop fracking in Scotland, particularly those faced with the prospect of living near this dirty, damaging industry.
“INEOS should listen to the people and parliament of Scotland who have made it clear that there is no support for fracking, and give up on its plans to trash the central belt and the climate.
“Support for a ban on fracking from communities on the frontline of this industry, people the length and breadth of Scotland, and almost all the parties at Holyrood is overwhelming. There is little doubt that a strategic environmental assessment will support a ban on fracking given the mountains of evidence about the risks of the unconventional oil and gas industry to our environment, climate and people’s health.
“We urge the Scottish Government to move forward with its decision making process on fracking as swiftly as possible and use the powers now available to them to legislate for a full ban, and draw a line under the issue of unconventional oil and gas extraction for good.”
Friends of the Earth Scotland submitted a public interest intervention in the judicial review, arguing that not only is the ban on fracking lawful, but that the Scottish Government is required to ban fracking in order to meet Scotland’s legally binding climate change commitments. Climate science demonstrates that over 90% of the world’s fossil fuel resources must remain in the ground in order to limit global warming to well below 2oC, as required by the Paris Agreement.
“We note that during the hearing Lord Pentland described our intervention as very helpful. However as this case focused on the technicality of whether a decision to ban fracking had been made or not, there was no opportunity to examine broader legal arguments around the imperative to ban fracking on environmental grounds. This case is one among many which highlight the very real need for a specialist environmental court that can look into the merits of cases, as environmental problems such as climate change become ever more pressing and the legal and scientific issues around them ever more complex.”
Friends of the Earth Scotland is represented by the Scottish law firm Balfour+Manson and Aidan O’Neill QC of Ampersand and Matrix Chambers with input from Leigh Day in London. The intervention was by way of a written submission, and provided information to the court on relevant EU, Scottish and UK environmental law, national and international obligations on climate change, as well as the link between human rights and environmental protection.
Balfour+Manson solicitor Sindi Mules said:
“Balfour & Manson were pleased to act for Friends of the Earth in their intervention and would be happy to continue to support as the process develops.”
Leigh Day Solicitor Carol Day said:
“We support the call on the Scottish Government to now formally confirm its ban on unconventional oil and gas exploration in line with public opinion and other jurisdictions of the UK that are on the same trajectory.”
Notes to Editors
- Lord Pentland’s opinion in INEOS & Reach CSG v Scottish Ministers is available at: https://www.scotcourts.gov.uk/search-judgments/court-of-session
- Our intervention is available online at: https://foe.scot/resource/fracking-ban-intervention-csoh/
- A public interest intervention is a legal submission from a third party in a Judicial Review. We had to apply to the Court of Session for permission to be allowed to make this intervention. See the Court of Session Rules of Court on public interest interventions in judicial review, chapter 58 17-20 https://www.scotcourts.gov.uk/docs/default-source/rules-and-practice/rules-of-court/court-of-session/chap58.pdf?sfvrsn=20
- The Scottish Government announced an ‘effective ban’ on fracking on 3 October 2017 following a 33 month moratorium which included an extensive evidence gathering process and a public consultation to which 99% of the 60,000 respondents opposed fracking https://foe.scot/press-release/scottish-gov-bans-fracking/. The Scottish Parliament voted to support and strengthen the Scottish Government’s ban on 24 October 2017, with Labour, the Greens and Liberal Democrats voting with the Scottish Government https://foe.scot/press-release/scot-parl-fracking-ban/
- All six grounds of challenge by INEOS and Reach CSG were refused. Of particular interest are Lord Pentland’s comments in relation to (emphasis added):
Scottish Government’s policy on fracking and whether there is a ban in place or not:
 So, the ministerial comments reflecting the opinion that there was an effective ban on fracking are (a) irrelevant to the legal question before the court; (b) not binding on the court; (c) in any event, not determinative of the question of construction that the court has to address; and (d) to the extent that they did not accurately express the legal effect of the decisions taken must be left out of account when it comes to answering the legal question. In my opinion, the emerging policy is not ambiguous. It means what it says: the Scottish Government does not support fracking. It does not mean that any planning or other application for consent to carry on such activity must be refused as a matter of law. It conspicuously does not stipulate that the Scottish Government has banned fracking. This is not a technical or legalistic distinction. The policy reflects the Scottish Government’s provisional evaluation of the position as at October 2017 based on the outcome of their public consultation and the other evidence available to them at that time. In light of those sources of information, they stated that their preferred position was not to support fracking; it seems to me that this provisional view does not amount to an attempt to lay down a legally enforceable rule, applicable to all decision makers, that fracking is henceforth prohibited.INEOS and Reach CSG’s claim for damages under A1P1 of the European Convention on Human Rights
 In my opinion, it is not possible at the present time to assess what the effect of any eventual policy on fracking may be on the petitioners’ interests in the PEDLs. The SEA and BRIA processes are still to be followed through; clearly it would be inappropriate for the court to attempt to prejudge what the outcome of those processes may be or to try to predict what the terms of any final planning policy may ultimately transpire to be. The eventual terms of the policy, its justification and aims, the impact which it will have on the holders of PEDLs such as the petitioners, and its proportionality are all matters that are highly germane to any argument based on A1P1. The court cannot come to any view on such issues until a final policy has been adopted. The petitioners’ complaint of a breach of their rights under A1P1 is premature.
 It should also be borne in mind that the petitioners have never had any legitimate expectation that they would obtain all (or indeed any of) the necessary permissions for the purposes of UOG extraction. They have not been deprived of their interests in the PEDLs; these have not been withdrawn or revoked. There has been no legislative change affecting the viability of the PEDLs. Such possessory interests as the petitioners might have in the PEDLs are, in any event, highly vulnerable to the inherent commercial risks of an industry that is constantly affected by fluctuations in market prices. Having regard to these factors and to the substantial uncertainty that exists about the extent of the recoverable amount of UOG in Scotland, I am doubtful whether the petitioners’ interests in the PEDLs would qualify as possessions for the purposes of A1P1.
The devolved competence of Ministers in relation to fracking
 Finally, the petitioners argued that the alleged ban on fracking was outside the devolved competence of the Scottish Ministers since it related to a reserved matter, namely “oil and gas, including – (a) the ownership of, exploration for and exploitation of deposits of oil and natural gas” (Scotland Act 1998 Schedule 5, Part 2, Head D2(a)). This too must fail on the ground that there is no ban. In any event, the argument seems to me to be misconceived: town and country planning is not a reserved matter; nor is protection of the environment. The powers exercised by ministers in relation to the emerging policy of no support for fracking and the 2015 Directions come under these heads and are only loosely or consequentially connected with the oil and gas reservation in the Scotland Act (see Christian Institute v Lord Advocate 2017 SC (UKSC) 29 at paragraphs 28-33). Scottish Ministers are not precluded from making policy in respect of planning and environmental issues raised by, or affecting, reserved matters in Scotland. The 2015 Directions were lawfully made under powers given to the Scottish Ministers.
- Friends of the Earth Scotland is
* Scotland’s leading environmental campaigning organisation
* An independent Scottish charity with a network of thousands of supporters and active local groups across Scotland
* Part of the largest grassroots environmental network in the world, uniting over 2 million supporters, 75 national member groups, and some 5,000 local activist groups.