Legal

Double challenge to ministerial approval of Cuadrilla’s fracking site goes to Appeal Court

rcj

Opponents of fracking at Cuadrilla’s shale gas site near Blackpool take their legal challenge to the Court of Appeal in London on Wednesday.

A two-day hearing at the Royal Courts of Justice will hear arguments from Preston New Road Action Group and the anti-fracking campaigner, Gayzer Frackman, along with Cuadrilla and the Secretary of State for Communities and Local Government.

The case is the latest stage in a long-running planning dispute over the largest fracking operation to be approved in the UK.

It dates back to June 2015 when Lancashire County Council refused planning permission for drilling, fracking and testing up to four shale gas wells at the Preston New Road site at Little Plumpton.

The Communities Secretary, Sajid Javid, overturned this decision in October 2016 following a 19-day public inquiry.

Preston New Road Action Group and Mr Frackman brought a statutory challenge to Mr Javid’s decision in the High Court in Manchester in March this year. The judge in that case, Sir Ian Dove, dismissed the challenges, saying all but one were arguable but none were substantiated.

Cuadrilla began work at Preston New Road on 5 January 2017 and started drilling the first well on 17 August 2017. There have been daily protests outside the site and between January and July, there have been 278 arrests. Timeline for the Preston New Road site. Images from the site

A spokesperson from Preston New Road Action Group said today:

 “We trust that the Secretary of State’s decision to allow fracking at Preston New Road will be found unsound, and Lancashire County Council’s original decision will be reinstated.

“Even before any fracking has commenced, the local community has been subjected to disruption. They have suffered stress due to the process and since work commenced on the site, their day-to-day lives have been disrupted by convoys of HGVs, a massive police presence and many road closures.

“Cuadrilla, far from being good neighbours, have already demonstrated their contempt for the local community and planning conditions meant to protect it. They have breached planning conditions by bringing the rig on to site during the night and have commenced drilling only days prior to the appeal being heard.

“People matter, communities matter. As has been demonstrated loudly and clearly over the last three years upwards, there is no social licence to frack at Preston New Road.”

Mr Frackman, who changed his name by deedpoll, said:

“I have been committed to ending fracking and protecting my community and country from fracking for over six years. I have every faith in our environmental legal team and trust that justice will be done.”

“Having seen the first fracking site develop on the Fylde coast over the past eight months and the constant breaches of planning conditions, it is clear that our safety is of no concern to Cuadrilla or the government. They have made every effort to force this toxic industry on the UK with no regard to our communities, health, environment and climate.”

Earlier this summer, a spokesperson for Cuadrilla said:

“Cuadrilla will actively defend the appeals alongside the Government and remains confident that the planning consent will not be overturned.

pnr 170827 Ros Wills

The drilling rig at Cuadrilla’s Preston New Road site, 27 August 2017. Photo: Ros Wills

Legal arguments

Preston New Road Action Group argued at the High Court that Mr Javid had misinterpreted local and national planning policy and that his conclusions on landscape impact were inconsistent. It also argued that the way the public inquiry dealt with a policy in the Fylde Borough Plan was unfair to PNRAG.

Mr Frackman’s team argued that the Environmental Statement, which supported Cuadrilla’s planning application, was defective because it didn’t provide a comprehensive assessment of cumulative impacts. There was no assessment of greenhouse gas emissions that would be produced from gas piped and burned in homes and businesses during the extended flow testing phases.

His team also argued that Mr Javid should not have granted planning consent because he could not have rationally concluded that regulations could control and reduce public health and other impacts to an acceptable level.

Dr Paul Stookes, Solicitor-Advocate at Richard Buxton Solicitors, who is representing Mr Frackman said:

“If environmental impact assessments are to have any integrity in the UK, then the full consequences of extracting and burning large volumes of fossil fuel must be considered at the earliest possible stage. And, if those consequences have not been assessed then a precautionary approach says that permission for shale gas fracking must be refused.”

Estelle Dehon, environmental law barrister at Cornerstone Barristers and representing Mr Frackman, said:

“This action is being taken on the basis that Cuadrilla and the Government did not fully assess the impact of greenhouse gas emissions that will be generated by the fracking operation over the next six years, contrary to the environmental impact assessment regulations.

“The appeal also questions whether it was safe for the Government to grant permission in the absence of a robust regulatory system, despite uncontroverted evidence of the health impacts of fracking. We will also be making the case that Cuadrilla’s so-called exploratory fracking is in fact full scale shale gas production in disguise.”

The case has been listed for 10.30am on Wednesday 30 August at The Royal Courts of Justice, The Strand, London, before Lord Justice Simon, Lord Justice Lindblom and Lord Justice Henderson.

Background

What the High Court Judge, Sir Ian Dove, said about Lancashire campaigners’ fracking challenges

Reports from the High Court hearings:

Cuadrilla’s Lancs shale gas exploration plans were “production in disguise” – High Court told

Shale gas regulation is not “up to scratch” and Cuadrilla fracking permission should not have been granted 

Government lawyers defend decision to give planning consent to Cuadrilla fracking plans

  • DrillOrDrop will be reporting from both days of the hearing at the Court of Appeal

Updated: 29 August 2017 with time of hearing and names of judges hearing the case

 

 

 

 

36 replies »

  1. Looks like the pressure is getting to some. Cuddly image is slipping, arrests rising, and free speech is taboo. You could almost be excused for starting to think there is panic that the scaremongering, poor science and crazy economics might be about to be trashed.
    A lot of hopes riding on a mild winter.

  2. I never go into a court case thinking the outcome will be as you expect but there is a lot of weight to the two prior HC judges decisions, I anticipate this one will also go in the pros direction. That really is the last roll of the dice for the antis at the PNR site and does set a very strong legal precedent for any future cases brought before the courts that relate to fracking.

  3. Astonishing but predictable hypocrisy from the fracker posters who are the prime perpetrators for decrying and denigrating and shouting down anyone who speaks up for their communities and their environment!
    What is the injunction for but a weak paranoid attempt to deny freedom of speech!
    [Edited by moderator]

  4. [Edited by moderator] Speaking up, or shouting the loudest, has to have some factual and legal basis. So far, you have not established that. I don’t see anything has changed for this latest attempt, but take nothing for granted.

    But, as GBK correctly states, every court case lost creates a precedent that will gradually sift out future attempts. This one will be a win for the lawyers (again).

    However, as you refer to “injunction” perhaps a starting point would be to separate this case (Cuadrilla) from Ineos. Back to Giggle.

  5. While I think it optimistic to link the courts to a process of justice when there is so much money, corporate and political influence behind the fracking lobby I think it will leave an indelible stain on Her Majesty’s Courts if the precautionary principle is not applied. Local objections need a fair hearing then the facts that a/ the pollution and contamination risks b/ the greenhouse gas emissions and c/ the environmental degradation are all serious issues … they must be given due weight. The propaganda and misinformation communicated by the industry on these matters is phenomenal. Meanwhile there is now an extremely long and growing list of city and county level (100’s), State (3 in the U.S.) and several EU countrywide with bans in place.

    Methane and CO2 emissions from an emerging shale gas industry will carry the UK further from its carbon targets and lead to penalties as well, while also meaning failure of (at least) England to meet its climate change commitments.

    • Philip, the money, corporate, and political influence is just as strong, if not stronger from the Green Machine, so I do not accept that argument as valid. And the precautionary principle does not further your cause. Indeed, the precautionary principle has been observed in parallel with fracking activities. The burden of proof has fallen on the industry and regulators to show that fracking is not systemically harmful to society, and the empirical data has met this challenge. This is why you have so many independent government bodies confirming that fracking can be accomplished safely.

      You may also appreciate the fact that the Precautionary Principle needs to be applied in a 360 degree fashion, such that you must take into account the risks of NOT undertaking the activity. These risks are considerable with respect to fracking in the UK, and can result in more fuel poverty deaths, greater carbon emissions, less energy security, greater support of despotic rulers and regimes, and an increased potential for armed conflict.

      I can name twenty jurisdictions that do not have bans on fracking for every one that you can name that does sponsor a ban, so I don’t believe that this is a valid argument either.

      I further note that no industrialized country has made more progress with respect to C02 emissions than the US. That progress is mostly due to the influence of fracking.

  6. 450,000 Texas people suffering “unprecedented” flooding during hurricane Harvey, four feet! Of rain in one day, another two feet expected on it’s return from the gulf of Mexico
    Dead numbers rising, 2,000 known homeless losing everything, 5,000 in shelters.Calls to police and emergency services ignored all night?
    Not the poor south this time, parts of which are still devastated, but the rich Texas oil and gas capital of the world. Some irony there, maybe the survivors have a voice that will demand correct action?
    No such thing as man made global warming and climate change is there President Donald Trump? Both climate change and global warming are now forbidden phrases to be used by government agencies Mr Trump? Removal of environmental protection agencies and funding, breaking up organisations that reported on global warming, you couldn’t make it up!
    What a mess, the worst global warming consequences in living history and still our own oil and gas owned crazy government insist on drowning us in fossil fuels whilst ignoring and financially sidelining the logical clean alternatives!
    Signs and warnings.

  7. You mean, just like Germany PhilipP? Who have banned fracking but gone ahead with coal!

    I think the courts will look at facts, not looking for cop outs such as precautionary principles.

    • I answered that 1% blip towards coal fully in a previous post Martin. Besides the cherry picking your memory seems very short… the early shutdown of some nuclear baseload facilities both in Germany and France in the wake of Fukoshima led to the temporary (and minor) upswing. Despite this Germany is still on track with the drive towards renewables.

    • The Law Courts decide only law, not facts, the responsibility for facts is in the hands of the lawyers and witnesses. And that depends upon the experience, quality and their commitment.
      If the law is flawed or misdirected by unwieldy and cost driven legal precedent, then facts take second place, if not at all. If law established only facts, then that is fortunate, but not historically irrevocably sacrosanct.
      Admiralty and criminal law attempted to replace, but did not supercede common law and was so changed as to originally to protect shipping property, admiralty rank and ocean going privilege, that is why the court emulates the bridge of a ship.
      We are assumed to be born in water, amniotic fluid, and therefore are assumed to be under admiralty jurisdiction, unless declared otherwise, and are little more than salvage, goods and chattels and crew, therefore lesser beings with no rank or privilege not granted by the court.
      If the defendant approaches the bench, which is the captains (judges)bridge, over which he or she has complete authority, absolute power under only that of God, the defendant has no rights that the judge does not see fit to grant. All else is legal nicety and depends largely on who has the deepest pockets.
      If the defendant cannot, by declaration, be tried under admiralty law, then the court leaves and reconvenes as a religious court, which is why one must always request to see the written oath signed and dated and which law you are being tried under.
      Common law cannot be overruled, superceded or replaced in spite of many attempts to do just that.
      Law is not fact driven, it is law driven.

      [Comment corrected at poster’s request]

      • Great insight. So you think the anti fracker has a case? The defendant (the Government) has deep pocket and it is probably being tried under common law I suppose.

        • The default is company law and is based on admiralty law, or criminal law, that if challenged defaults to religious law, common law underpins all those in theory, but most people don’t know it, the law courts and the legal professions operate on obscure legal meanings and procedural interpretations, which is why the legal profession is so much of a closed shop and only under the auspices of the law society.
          Like the all powerful (under god) captain on the bridge of a ship, you are largely in the hands of whether he or she is sympathetic to your petition or has been given a clearly defined legal matter to decide upon or not. That is reliant upon how able is your legal case and representation, that is in the lap of god so to speak.
          Deep pockets won’t influence the result, but it can utilise more, how should it be said, legally “crafty” (as in craft, or profession, like on a ship for example?) expertise in legal presentation.
          Past experience with individual appellants seeking reparation from large corporations would indicate a high failure rate, but not exclusively so, and mainly possibly because the legal profession is aimed more at a monetary compensation claim and counterclaim and reparation scenario, rather than changing the legal and institutional goalposts so to say.
          One could surmise that the possibility of opening the entire government and oil and gas industry to claims of damage resulting from an incorrect ministerial overruling, may have some influence on the ultimate decision?
          Not that such a situation is out of the courts remit, but perhaps the resulting government and industry embarrassment resulting from an upheld claim of ministerial misappropriation of authority would be considerably more far reaching in it’s effects on the entire parliamentary and business community than one court case would indicate.
          And that does not mean it should not occur, but it does perhaps call into doubt a whole swathe of accepted establishment jealously protected territory.

          Make of that what you will.

  8. Still on track PhilipP, with 40% of their energy coming from coal? And hoping to get gas allowed from Russia? Don’t think so. And now we have hurricanes never happening in history (they did, but with much lower population density they caused less damage and of course received little publicity).. Your attempts to change what is happening in the world is interesting, but I’m not convinced the Court of Appeal is interested in that.

      • To help understand the German situation … https://cleantechnica.com/2017/05/08/germany-breaks-solar-record-gets-85-electricity-renewables/ .. the comments shed some light why there are different views about pros/cons of their ambitious Energiewende plans which for some reason prioritize divesting from nuclear ahead of coal. I think the unforeseen and ongoing consequences of the Fukoshima meltdown have had a role in prompting this. It should be understood also that they have been upgrading existing coal power plants (for lower emissions) and had an ambitious CCS plan too. But Carbon Capture and Storage has gone onto the back burner for the time being – it is now (globally) seen as a solution that is much easier said than done.

        • Yes, Philip, Energiewende has been a huge success except for the fact that it hasn’t cut carbon emissions, has led to skyrocketing energy prices, has increased fuel poverty and related mortality, and business investment has fled the country.

          What your comment really amounts to is an admission that a cogent energy strategy demands a portfolio approach. Most anti-frackers don’t admit this, as they live in the fairy tale land of 100 percent renewables, a land which will likely not exist in reality for many generations. Germany has sensed this and cut its commitments to renewables, ditto for S Australia, and other countries who have come to experience first hand the limitations of introducing intermittent energy sources capable of producing zero marginal cost power.

          In most societies that portfolio approach leads to a significant adoption of nat gas – preferably home grown natural gas which has lower environmental costs than foreign gas.

          • Protectthis – simply wrong on most counts there. Can you show references to support your incredible assertion that SA and Germany are cutting their commitments to renewables? I doubt it.

            Regarding the ‘fairytale’ of 100 percent renewables – it is already happening in pockets all over the world… check out the Orkneys for instance: https://www.youtube.com/watch?v=Rybpaqhg5Qg&t=272s . When the sweet spots for the various mixtures of technology that do the job are found (for any particular area) then it would only take very obstructive politics and backward thinking to stop it taking off. I predict the scalable mix of wind/solar/other renewable power together with battery, hydrogen and other kinds of storage, will overtake fossil fuel as the major sources of energy before any new UK onshore unconventional gas got anywhere near to being a significant player.

            Smart flexible grid technologies to cope with new models of utility scale distribution are ramping up at accelerating pace and yes, those riding the crest of the new wave do think in terms of portfolios. Just take a look at a successful (UK originated) company like RES to see how broad minded their approach is: http://www.res-group.com/en/countries/uk-ireland/

            I’ve always conceded that there will be a ‘long tail’ in demand for gas by the way. It would need to be a managed decline. But meanwhile to try and ramp up a most invasive and environmentally degrading new industry like shale gas in the UK, forcing it on an unwilling population and sacrificing carbon emission targets should be considered a non-starter.

            • I can indeed, Philip.

              Here’s one for Germany. http://dailycaller.com/2016/07/10/germany-votes-to-abandon-most-green-energy-subsidies/

              I understand that the amount of wind power generated in Germany may actually decrease in the not very distant future as old turbines are not replaced.

              And here’s South Australia: http://www.adelaidenow.com.au/business/economy/sa-electricity-crisis-government-unveils-550-million-power-plan/news-story/63d3db0a254ac11ab5353940d2002608

              The country has, for practical reasons, come to the realization that the only way to make its power system work, is to add more gas fired generation to the mix. We have told you and them for years that this would happen, but they, like you, were unwilling to listen.

              Of course fairy tale 100 percent renewables can happen in small pockets where a particular renewable resource is abundant and there is not a massive scale grid to support. But that’s a very small fraction of the world, and even in those areas they still rely on fossil fuels for a gross preponderance of transportation and other consumer goods.

              When you admit that gas will be required, what you are essentially saying is that you want someone else to produce it and you want to use their gas. That is neither a moral position, nor is it an environmentally sound one. If you think that production of gas is so damaging, why should someone else damage their neighborhood to feed you gas – even if they live half way around the world? And why do you think it is environmentally wise to create more GHG emissions than necessary? I thought that you argued against producing more GHG emissions in other posts?

            • But neither of those references support your argument protectthis. You can bend interpretations in a tricksy kind of way to make it appear so, or you are simply misunderstanding them. The decision to cut back on subsidising wind power in Germany for instance is entirely reasonable because wind power (and solar for that matter) are now beating all other forms of power generation for cost. The German (likewise the Danish) have been charging above the odds for domestic power for many years now to try and accelerate the transition to renewables. Those high prices, levies and the subsidy costs are political decisions not inherent in the costs of renewable developments except for the deliberate pressure to ramp them up. The so called ‘stresses’ on the grid are due to over supply in peak periods (from renewables) leading to negative charges for electricity at certain times. Hence the switch in priority now to scale back the pace of change and let the other requirements (like storage) begin to catch up. That’s not a bad ‘place’ to be progress-wise for Germany.

              As you probably realise the peaks of renewable output won’t necessarily match peak demand periods for electricity and that’s where new gas plant comes in – to add gas fired ‘peakers’ into the system to cope with those is more realistic than maintaining high baseload outputs or expecting the giant (legacy) plants to respond flexibly. This is true for Australia as well but even they are predicting the gas peaker requirements will be phased out by 2025.

              The non reduction of CO2 is a beloved cherry picking trick of the fossil fuel brigade. It only applies to the blip in 2016-2017 when more coal baseload power had to be brought online to compensate for the premature shutting down of a number of nuclear facilities in Germany. Then across the border in France they closed even more nuclear plants for inspection than anticipated and the Germans have been selling cross-border electricity to them (and others) as well. If you zoom out on the CO2 progress the trend is very definitely down. They’re making increased efforts now to hit their 2020 carbon targets despite the ‘blip’.

            • You have failed to explain exactly how the references do not support my argument.

              Here was my argument verbatim, “Germany has sensed this and cut its commitments to renewables.”

              Here is the headline which I cited “Germany votes to abandon most Green energy subsidies.”

              Who is being “tricksy” in suggesting that my reference doesn’t support my argument Philip? Germany realizes that it has spent an enormous amount of money on renewables and has some of the highest electricity prices in the world as a result. It also realizes that pushing a zero-marginal-cost intermittent energy source further will destabilize the grid further, and leave the country subject to some of the same influences seen in South Australia now. They understand that a portfolio approach is best because of renewables’ unavoidable limitations.

              As far as carbon emissions go, Germany is essentially flat from where it was ten years ago. That’s not cherry picking anything, Philip. That comes despite spending hundreds of billions if not a trillion dollars on “clean energy.” It will not come close to meeting its emissions goals for 2020.

              The US, on the other hand, has decreased its carbon emissions by over 10% over that time period, and has some of the lowest energy costs in the world.

              The gas peaker is required in Australia because they screwed up. They didn’t model very well, and they were caught with their shorts down. They pushed renewable penetration beyond where it can destabilize the grid. Now they pay the price. And storage can’t solve these problems, it is neither economic or practical (from a materials standpoint) and it may never be at large scale.

            • Exactly – your verbatim argument says “Germany has sensed this and cut its commitments to renewables.” … that position is not supported by the item. It is not the same argument as cutting subsidies. Renewables are now capable of competing for lowest prices standing on their own two feet. The weening period is over – unnecessary – and world is waking up to this fact.

              Although your conservative libertarian news source would like you to think that way (as you do), i.e. that renewables are not solving anything, the German CO2 reductions are real overall but made flatter that desired due to the phasing out of nuclear before coal. That decommissioning is very expensive too. Fukushima has been a shock to the whole nuclear industry with the huge ongoing issues they’re having, even after six years, dealing with the melting cores and their radioactive releases.

              When evaluating German consumer energy costs you have to factor in the spending power of the German domestic purse plus understanding that so many have solar panels (getting earnings from feed-in tariffs etc) as I saw on a visit last year. And they’re now, increasingly going for home storage solutions. Yes the Germans and Danes might spend the most on power per unit but when all things are considered its not that much more than the Brits pay on average.

              I believe human ingenuity will solve the large scale storage issues before long. I’d never say never.

            • So, when Germany cuts its subsidies to renewable sources, you don’t acknowledge that this means the country is taking a portfolio approach?

              If renewables are as low cost as you aver, then why has investment in renewables plummeted since the subsidies were cut? If wind and solar are that inexpensive, then every capitalist with a pocketbook would still be running out to deploy these technologies.

              The issue, of course, is that they aren’t as low cost as you represent, and the capital markets are quick enough to understand this. Sure, the simplistic marginal costs are near to zero, and the costs to buy and install the equipment can be included to create an overall package that in certain cases can be competitive. But this analysis fails to take into account down time, and all energy generation needs to take this into account. When these units can fail to produce much energy for weeks on end, the backup power costs need to be taken into account. Those costs can be very high unless you keep your gas peakers. Thus the portfolio approach. Thus the reason that renewables growth has been shown statistically to be tied to gas deployment.

              And if German energy consumers are doing so well during a period of skyrocketing energy prices, why are so many now living in energy poverty, even going so far as to live without electricity? Are they feeling good about your renewables strategy, Philip? Why is business investment fleeing the country?

              And you never got back to me on the issue of your stance of using “other peoples gas.” It’s a morally and environmentally questionable position to take. How do you justify it, Philip ?

            • I think you should spread your research to include sources that are less biased towards oil and gas industry yay-sayer/investor propaganda PT.

              There are also good reasons not to ramp up new drilling and shale gas infrastructure here when there are existing supply lines and we’re approaching a period of (global) glut in gas supplies – so long as it is not leading to the expectation of further overseas fracking.

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