A judge at the High Court in London has reserved judgement in a legal challenge brought by two campaign groups to the approval of fracking in North Yorkshire.
Mrs Justice Lang said she had set aside tomorrow to write her judgement in the case brought by Friends of the Earth and Frack Free Ryedale. The ruling is expected within days.
The campaign groups argued that North Yorkshire County Council had acted illegally in granting planning permission to Third Energy to frack and produce shale gas at Kirby Misperton.
They said in making the decision, councillors failed to consider its contribution to climate change and failed to provide financial security against any long-term damage.
On the climate change argument, their barrister, David Wolfe QC, said the council should have taken into account greenhouse gas emissions from burning gas from the fracked well to produce electricity at the nearby Knapton Generating Station.
He said this information should, under planning regulations, have been included in the environmental impact assessment that accompanied Third Energy’s planning application.
This morning, the barrister for Third Energy, Nathalie Lieven QC, countered these arguments. She said:
- Any greenhouse gas emissions produced at Knapton were not part of the application for the fracked well, known as KM8
- There were no need for any physical works at the power station resulting from the application
- There would be no increase in capacity at Knapton if gas from KM8 was sent to the plant and no increase in the quantity of gas burned
- The amount of gas burned at Knapton was capped by an environmental permit
- The impact of emissions at Knapton was unknown because it was not yet known whether gas would be produced from the KM8 well
Ms Lieven added that if the council wanted to consider the emissions from Knapton it would have included it in its scoping opinion. This set out what it expected Third Energy to include in the application and took account of recommendations from consultees, such as the Environment Agency and Natural England.
She said neither the Environment Agency nor Natural England, key statutory consultees with a remit for tackling climate change, had requested that the data be included in the application.
Judge Lang asked:
“Is there anything from them [Environment Agency or Natural England] about relying on this form of energy?”
Ms Lieven replied:
“The principle of exploration and development of UK shale gas resources is strongly supported in national policy so it would be unusual for them [Natural England and the Environment Agency] to say something as direct as that about energy policy”.
She added that a ministerial statement made by the then Energy Secretary, Amber Rudd, in 2015, promoting shale gas, “would have been a very important consideration for members”.
Responding to Ms Lieven, Dr Wolfe, for Friends of the Earth and Frack Free Ryedale, said:
- The regulations required councils to consider any indirect or cumulative impacts and this should have included greenhouse gas emissions at Knapton
- The council had not explained why it had considered the impact of other wells in the area but not emissions from Knapton
- There was not a cap on emissions at Knapton. It was part of an emissions trading regime and if the operator wanted to burn more gas it could buy extra allocation
- Consultees such as Natural England and the Environment Agency did not drive the process of deciding what should be included in the application
- The presence of the other regulators did not “carve out” this area and prevent the council from considering issues in their remit
Long-term environmental protection
The second argument of the campaign groups was that the council failed to protect the area from any long-term problems.
On this Dr Wolfe argued that councillors had been misled by an officers’ report. This said the council could not require Third Energy to pay a bond to cover the costs of any long-term problems.
Ms Lieven rejected this argument, saying the council had included a condition on the planning permission that required Third Energy to pay for the costs of any restoration and a five-year aftercare programme.
Judge Lang asked
“What would happen if a company is not in business?”
Ms Lieven replied:
“You have to consider the risk. There is extensive monitoring and checking.
“You cannot have a big pollution problem if there is monitoring all the way through. We can never say never. But likelihood is very small.”
She said other regulatory regimes required companies to be financially secure and prevented the surrender of environmental permits until regulators were sure there was no risk.
“The [risk of the] type of failure Dr Wolfe and his clients are concerned about is infinitesimal.”
Ms Lieven added
“It would have been inappropriate for North Yorkshire to require a bond from my client when there is a regulatory regime dealing with the same issues. It would be wrong in law to replicate them.”
In his response, Dr Wolfe said the wording of the officers’ report “turned members off from thinking about a legacy bond and made them think they had to fall back on other regimes.
“They should have been told ‘It is not a good idea’ but it was up to them to decide and take the risk if they wanted to.”
Dr Wolfe added
“Here we have a specific concern and there is nothing, as a matter of law, that precludes the council from dealing with it.”
What happens next?
Judge Lang said she would send her draft judgement to the parties in the case for their comments before publishing the judgement.