Scottish Government Decision on Fracking Kicked Further Down Road
The Scottish Government has today (26/03/19) announced a further delay in making a final decision on fracking. A final decision had been promised in the first quarter of 2019  but instead the Scottish Government has announced additional consultation, with a final decision ‘as soon as possible’. 
The announcement comes days after Friends of the Earth Scotland published a legal opinion from one of Scotland’s leading lawyers.  The opinion says the Scottish Parliament can pass a law to ban fracking and that doing so would be less likely to result in successful legal challenges from companies with an interest in the industry, than the present policy approach.
Commenting on the announcement Friends of the Earth Scotland Head of Campaigns Mary Church said:
“Communities on the frontline of this dirty industry who have been waiting for over four years for the Scottish Government to bring its long drawn out process on unconventional oil and gas to an end, now face even further delay. Holyrood has the power to ban fracking – it’s time for the Scottish Government to stop dilly-dallying, have the courage of its convictions and legislate to stop the industry for good.
“The Scottish Government and Parliament have a very clear mandate from the people of Scotland to ban fracking. It was one of the top 5 issues going into the 2016 election, with the SNP elected on a promise to deal with industry, the Scottish Parliament has already voted to ban it and over 60,000 responded to a consultation in 2017 rejecting fracking. A series of subsequent powerful commitments from Nicola Sturgeon and her Ministers have still not resulted in robust, long-term protection against this industry.
“We commissioned a legal opinion from one of Scotland’s leading lawyers which makes it equally clear that Holyrood can and should ban fracking, and that legislating would be a far more robust way to stop the industry and defeat any further legal challenges from the likes of INEOS. We urge Ministers to work together with the other anti-fracking parties to pass a law banning fracking and finally put this issue to bed once and for all.”
The announcement of the delay, and further consultation on the Strategic Environmental Assessment, Business and Regulatory Impact Assessment and the Preferred Policy Position Statement was made by way of a response from Energy Minister Paul Wheelhouse MSP to a Parliamentary Question lodged by Angus MacDonald MSP.
Notes to Editors
1. The Scottish Government’s announcement of a further delay to a final decision on unconventional oil and gas, and further consultation on the Strategic Environmental Assessment, Business and Regulatory Impact Assessment and Preferred Policy Position is at https://www.parliament.scot/parliamentarybusiness/28877.aspx?SearchType=Advance&ReferenceNumbers=S5W-22344&ResultsPerPage=10
2. The legal opinion, which Friends of the Earth Scotland commissioned from Aidan O’Neill QC, says:
- it is within the legislative competence of Holyrood to pass primary legislation to prohibit unconventional oil and gas extraction using powers over onshore licensing recently devolved from Westminster
- a strong argument can be made that the Scottish Government and Parliament are in fact required by law to impose such an outright ban
- the surer way to defeat any further legal challenges to the position of no support for fracking would be to enshrine it in primary legislation
3. Energy Minister Paul Wheelhouse announced an ‘effective ban’ on fracking in Parliament in October 2017, and the First Minister echoed this days later: The Herald, 5 October 2017 ‘Nicola Sturgeon: Fracking will be banned in Scotland – end of story’ https://www.heraldscotland.com/news/15578977.nicola-sturgeon-fracking-will-be-banned-in-scotland-end-of-story/
4. In June 2018 the Court of Session ruled that there was no legally enforceable ban in place following a legal challenge from INEOS and Reach CSG. BBC 19 June 2018 ‘Judge says fracking not banned in Scotland’ https://www.bbc.co.uk/news/uk-scotland-44532985; Friends of the Earth Scotland blog ‘When is a ban a ban?’ https://foe.scot/when-is-a-ban-a-ban/
5. The Scottish Government published a Strategic Environmental Assessment (SEA) and a partial Business and Regulatory Impact Assessment of its preferred policy position of no support for UOG in October 2018. The SEA highlights the significant harmful environmental impacts the industry would have if allowed to go ahead. It noted that “Ministers will inform Parliament of their finalised policy on the development of unconventional oil and gas in Scotland in the first quarter of 2019.” https://consult.gov.scot/energy-and-climate-change-directorate/preferred-policy-position-on-uog/
6. An updated preferred policy position statement published at the same time as the SEA, suggests that the Government intends to continue to rely on policy levers to prevent fracking taking place, despite gaining licensing powers:
“The Scottish Government will embed its position on unconventional oil and gas within the next iteration [of the National Planning Framework], thereby giving an assurance the policy would carry significant weight in development planning and decision making, and that any future changes to the policy would be given Parliamentary consideration….
“In the event our preferred policy position is adopted, in addition to the policy being a material consideration within planning policy, Scottish Ministers would discharge our newly devolved licensing powers in line with that adopted policy position i.e. of not supporting the development of unconventional oil and gas in Scotland.”
The document appears to be no longer available on the Scottish Government website, but Friends of the Earth Scotland have uploaded it at https://foe.scot/resource/scottish-gov-policy-position-fracking-oct-2018/
7. 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.