The ministerial approval of plans for shale gas exploration in Lancashire is being challenged in the courts on climate change grounds.
The Local Government Secretary granted planning permission on 6 October 2016 for Cuadrilla’s Preston New Road site near Blackpool.
This overruled the refusal by Lancashire County Council 15 months earlier, but followed the recommendation of the inspector at a 19-day planning inquiry.
Mr Javid’s decision is now the subject of two statutory challenges.
One, brought by Gayzer Frackman, a Lancashire anti-fracking campaigner (pictured above), claims the minister failed to comply with European law on the climate change effects of shale gas. DrillOrDrop plans to report in future on the other case, brought by Preston New Road Action Group, and a further challenge on Mr Javid’s ruling on Cuadrilla’s second Lancashire site at Preston New Road.
Mr Frackman’s case, expected to go to the High Court in the Spring, centres on when the effects of hydrocarbon production on climate change should be assessed and whether regulation can control effectively the impacts on public health. It is expected to challenge arguments often used in support of oil and gas planning applications.
According to case papers seen by DrillOrDrop, the Secretary of State (described as the 1st defendant) will argue that shale gas is consistent with the aim of the UK planning policy to support the transition to a low carbon future. His case is that the Lancashire sites represented “a positive contribution towards the reduction of carbon” and so should have been approved.
The Secretary of State has relied on the Planning Policy Guidance on minerals (PPGM) in arguing that the climate change impacts of shale gas production should not be considered at this stage because Cuadrilla sought permission only for exploration.
Paragraph 120 of PPGM states:
“Individual applications for the exploratory phase should be considered on their own merits. They should not take account of hypothetical future activities for which consent has not yet been sought, since the further appraisal and production phases will be the subject of separate planning applications and assessments.”
Mr Frackman, the claimant, is expected to argue that the Secretary of State failed to consider cumulative effects, including those of shale gas production, on climate change and public health when he made his decision. The minister may not have granted planning permission if he had not made this and other errors, the claimant has argued.
Specifically, the claimant is expected to say the failure to consider cumulative effects was contrary to the European Union Environmental Impact Assessment (EIA) Directive.
The directive requires that developers provide “a description of the likely significant effects of the proposed project”. A footnote in an annex explains:
“this description should cover the direct effects and any indirect, secondary, cumulative, short, medium and long-term, permanent, temporary, positive and negative effects of the project”.
The claimant has argued:
“For the purpose of compliance with the EIA Directive, the cumulative effects should have included the likely effects of commercial shale gas production; and the 1st Defendant [the Secretary of State] erred in law by limiting the environmental assessment to the exploration proposals for which planning permission was sought”.
Is shale gas production an indirect, secondary or cumulative effect?
The papers suggest that the Secretary of State will argue that commercial shale gas production cannot
“reasonably be considered to be an indirect, secondary or cumulative effect of the application”.
But the claimant has argued that the Secretary of State relied in granting permission on the conclusion that “the projects represent a positive contribution towards the reduction of carbon”.
“The 1st Defendant could only logically reach the conclusion that the projects represent a ‘positive contribution’ by taking into account the commercial shale gas production to which the exploration phase is designed to lead. This has to be so, because the exploratory phase of the developments will not, of itself, lead to any reduction in the carbon intensity of the UK energy supply, it will only increase greenhouse gas emissions (GHG).
“The 1st defendant cannot lawfully consider the cumulative positive impacts of a project while turning a blind eye to the cumulative negative impacts”.
End products and salami slicing
The claimant is also expected to support his case with a decision from the European Court of Justice on what should be included in environmental impact assessments.
The ruling in the 2008 case of Abraham v Region Wallone said an EIA should include impacts
“liable to result from the use and exploitation of the end product of works”.
The claimant argued that the EIA for Preston New Road should have included the impacts of the commercial exploitation of shale gas – the end-product of exploration – as well as the direct effects of exploration itself.
The Abraham case also ruled that EIAs should be carried out early as possible to identify and assess all the effects which the project may have on the environment.
According to the papers, the Secretary of State appears to have discounted the use of the Abraham ruling, arguing that it dealt only with what is known as “unlawful splitting” or “salami slicing” of development.
But the claimant has responded:
“It is a type of ‘salami slicing’ to deal with the exploration stage in a vacuum, separate from the envisaged production to which the exploration is designed to lead and as though exploration were an end in itself.
“Exploration does not take place where it is recognised that recoverable reserves of a natural resource could not be exploited for production, be it for a commercial reason or because of the unacceptable environmental impact of production”.
“The effect of separating the exploration stage for hydrocarbons from their production is to require the decision-maker to be blind to relevant information about the impact of the production stage”.
Can the impacts of production be known?
According to pre-action correspondence, the defence is likely to argue it would be impossible to assess the future impacts of commercial shale gas production.
But the claimant is expected to respond that Cuadrilla must have developed a business case for its Lancashire shale gas sites, setting out the level of production needed for the projects to be profitable.
“Otherwise it would not be possible for Cuadrilla to judge whether the data received through testing of the sites showed that the recoverable reserves would be commercially viable.”
The papers refer to a witness statement made on 8 December 2016 by Francis Egan, the chief executive of Cuadrilla. In it he stated that the company would invest more than £40.5m on exploration and testing at the Preston New Road site.
The claimant argued:
“Such investment would not otherwise be approved or justified unless Cuadrilla considered that there was at least a reasonable prospect of progressing to shale gas production.
“It would clearly be possible with sufficient certainty necessary for EIA to predict the likely GHG [greenhouse gas] emissions arising from production at such a level.”
National policy or individual decisions?
The Paris Agreement on Climate Change was reached a day before the Secretary of State announced his decision in October last year.
But according to the papers, the Secretary of State has argued that the relationship between shale gas extraction and international climate change obligations was a matter for future national policy and not for planning decisions.
In contrast, the Claimant has argued there is nothing in legislation, ministerial statements or planning policy that absolve the Secretary of State from the responsibility of considering the cumulative impacts on climate change likely to arise from granting planning permission.
The case will also challenge whether the Secretary of State applied the precautionary principle when deciding if all potential impacts on public health from the development would be effectively controlled by regulators.
In the papers, the claimant refers to the 2014 autumn statement in which the government allocated £5m to provide independent evidence to the public about the “robustness” of existing shale gas regulations.
The claimant has requested disclosure of the independent evidence. According to the papers, the Secretary of State refused, replying:
“You do not explain how this relates to your proposed grounds of challenge. It does not. As such, your request is no more than a fishing expedition”.
The Secretary of State accepted the conclusion of the planning inspector that all potential impacts on health and wellbeing associated with exploration would be reduced to an acceptable level.
But the claimant is expected to argue that Secretary of State could not
“rationally and lawfully reach the conclusion that the regulatory regime system would operate effectively so as to ensure that the proposed development would not have an unacceptable impact on public health and wellbeing”.
“Without the independent evidence, which the Government indicated in its 2014 Autumn Statement it would produce to demonstrate the robustness of the existing shale gas regulatory regime, the claimant contends that the 1st defendant had an obligation to dismiss the planning appeals or alternatively adjourn them pending the provision of such evidence.”
- Gayzer Frackman is crowdfunding for his case on the CrowdJustice platform