Jennifer White: To frack, or not to frack…

Jennifer White

The Court of Session has recently confirmed that there is no ban on fracking in Scotland following a challenge by Ineos Upstream Limited (“Ineos”) and Reach Coal Seam Gas Limited (“Reach”). Jennifer White looks at the case.

Ineos and Reach had sought an application for judicial review on the basis that the Scottish government had unlawfully imposed an indefinite ban on fracking. In its defence, the government responded that rather than imposing a ban it had merely announced its preferred policy position, which was not to support the development of unconventional oil and gas (“UOG”) in Scotland until various assessments had been carried out.

A note of the legal position in respect of fracking can be found in our previous blog post (Fracking – The Legal Issues). To summarise, it is necessary to obtain the following before fracking can take place: an exploration and extraction licence; planning permission from the local council; an environmental licence from SEPA; and various regulatory consents. Since our blog post the regime for licensing onshore exploration and extraction of oil and gas has become devolved to the government as a result of sections 47 and 48 of the Scotland Act 2016.

In 2015, the government imposed a moratorium on the granting by local planning authorities of planning consents for all UOG developments, including fracking, and also required that SEPA were to refer for ministerial determination any application for authorisation to carry on any controlled activity in connection with UOG development. The judgment refers to these directions as the “2015 Directions”. Following a series of reports and a public consultation, the government announced in October last year that the moratorium would continue ‘indefinitely’. At the time the government anticipated that an application for judicial review would be sought.

In his judgment Lord Pentland noted that the effect of the 2015 Directions was “to give the government the means to control two of the essential legal requirements for onshore extraction of UOG”. He then noted that the government’s preferred policy position together with the decision that the 2015 Directions should continue in force indefinitely were “at the heart of the Scottish government’s stance on fracking as matters currently stand”.

It was considered that, given the evidence, the government’s preferred policy position was never intended to be a final policy and that it had been made clear in October 2017 that a statutory strategic environmental assessment and business and regulatory impact assessment would require to be carried out before such policy was finalised.

Lord Pentland found that, despite various ministerial statements to the effect that there was an effective ban, the Scottish government had been clear that there was no legally enforceable prohibition on fracking. The current situation is an “emerging and unfinalised planning policy expressing no support on the part of the Scottish government for the development or extraction of UOG in Scotland” which is not yet complete and requires further assessment and analysis.

In conclusion, there was no basis for the court to interfere as the petitioners will have ample opportunity to contribute to and participate in these future assessments, and accordingly the application for judicial review of the alleged ban failed.

For now it is clear that fracking cannot take place in Scotland until the policymaking process is finalised.

Jennifer White is a solicitor at BTO LLP