Legal

INEOS wins right to challenge the Scottish Government over fracking ban – and to sue for damages

Scottish Parliament 170531 Friends of the Earth Scotland

Protest in favour of a ban on fracking outside the Scottish Parliament, 31 May 2017. Photo: Friends of the Earth

Yesterday it was the one of the UK’s biggest conservation charities. Today it was a government. For the second day running, INEOS has won the right to bring a legal case to court.

Following the grant of leave to pursue the National Trust over land access for seismic testing, the company has now won the right to bring a judicial review against the Scottish Government.

INEOS, the UK’s biggest shale gas company, has joined Reach Coal Seam Gas in challenging the Scottish Government’s decision, announced last year, to not support the development of unconventional oil and gas, including fracking.

The companies also sought to sue the Scottish Government for damages for an alleged breach of their human rights and to challenge the 2015 decision on a temporary moratorium.

In a legal opinion, Lord Pentland, a judge at the Court of Sessions, gave permission to the two companies to take their case to a judicial review. The case is expected to be heard in May.

INEOS and Reach both argued that their business interests had been “adversely affected” by the Scottish Government decisions.

The Scottish Government argued that the companies’ case on the 2015 decision was time-barred because the three-month limit for a bringing a challenge had long expired. INEOS argued that the two decisions could not properly be separated.

In his ruling, Lord Pentland said:

“there may be some possible merit in the proposition that the 2015 and 2017 decisions are closely interlinked and that this is significant in the wider context of the issues that arise in the case.”

He granted permission for the companies’ whole case to go ahead.

“Fracking cannot and will not take place in Scotland”

The Scottish Government announced on 3 October 2017 that it would not support unconventional oil and gas in Scotland. The Scottish Energy Minister, Paul Wheelhouse, told the Scottish Parliament:

“Fracking cannot and will not take place in Scotland.”

He said more than 60,000 people had responded to a public consultation. 99% of them had opposed fracking. He said:

“In those communities that would be most affected there is no social licence for unconventional oil and gas to be taken forward at this time.

“And the research we have conducted does not provide a strong enough basis from which to adequately address those communities’ concerns.”

He also said he was concerned about insufficient evidence on health impacts and he drew attention to the conclusion in a  report by KPMG that under its central scenario unconventional oil and gas could represent 0.1% of Scottish GDP.

At the time, INEOS Operations Director, Tom Pickering, responded to the decision saying it “beggars belief”. He said:

“It is a sad day for those of us who believe in evidence-led decision making.

“The Scottish Government has turned its back on a potential manufacturing and jobs renaissance and lessened Scottish academia’s place in the world by ignoring its findings.”

Later that month, the Scottish Parliament backed what was, in effect, a ban on fracking.

  • We’ll update this post with more detail and reaction when we get it.

36 replies »

    • Good point, Patrick. It’s definitely not the US – which leads the industrialized world in decreasing co2 emissions, particulate matter emissions, sox, nox, and mercury emissions, thanks to fracking. And the UK surely isn’t the world’s leading GDP powerhouse is it? No, they ceded that honor long ago, and are now even less important than lowly France in that regard. And if you win your fight, you can be that the UK’s trends will surely remain in place and it will become less and less relevant on the world stage. Business investment will move to more forward-thinking jurisdictions, taking jobs, wealth, growth, and people with them. But you will be much better without those greedy capitalists, am I right? Who needs them when you can overpay for imported fuel and subsidized green power. I mean, you really won’t need much stability in the grid when large businesses leave, and you can get by for a while by super-taxing the wealthy and subsidizing those who won’t be able to pay for your exorbitantly high power costs. What a wonderful future for the good ‘ol UK!

      • ESDD, this is not about who is ‘top dog’ who cares! Only those taught that supremacy is the only narrative, until someone else knocks them of their precarious perch.

        Business investment is indeed moving forward into the new energy revolution; stay in shale and fossil fuels and you will be found wanting.

        The good news is that your interpretation of what is good for a nation is obsolete.

      • Good heavens, if green energy had the government investment given to the dirty energies over the years, we would be flying high on cheap energy with no risks of pollution to air, water, or soil!!

      • Well said, the Scottish Government should have allowed the controlled development of UK natural gas, to test & check the advantages or problems that may occur, and then make a final decision.

      • Before reading this comment I had posted my own, but briefly, in the here and now, your pro-fracking comments make sense. Unfortunately in the not very distant future, they will become lunacy.

  1. ‘The companies also sought to sue the Scottish Government for damages for an alleged breach of their human rights and to challenge the 2015 decision on a temporary moratorium.’

    It is my understanding that a company cannot sue for damages under a breach of human rights; the clue is in ‘human’. However, yacht owner JR would be able to do this personally; that will look good and add to his already delightful persona.

    https://www.mirror.co.uk/news/uk-news/grangemouth-billionaire-jim-ratcliffe-relaxes-2644225

    • As far as I am aware there is no official ban on fracking. There is an indefinite moratorium. The definition of indefinite is an unknown or unstated length of time.

      No one is stopping Ineos trying to frack in Scotland it’s just that he will have to wait…….and wait………and wait…….and wait.

      As the Government has no problem in handing out deeds of variation on time extensions Ineos only have to apply for one……and another……and another…..and another.

      The shale deposit’s are not going anywhere so no argument there

      I am unaware of a breach of human rights through having to wait

      The oil and gas industry makes people wait decades to get compensation payments that were agreed years earlier.

      The problem they will have is that the indefinite moratorium may only be lifted years after we don’t have a need for gas.

    • Thanks Kat, precisely, the fraud of “legal persons” (Corporations) is that corporations can claim human rights but not be subject to them.
      Also that a corporation is ONLY responsible to their shareholders and/or owners profit and have no other consideration.

      That is the main cause of all this corporate oligarchy and insanity.

      And it is that which must be challenged and overturned before anything else can ever be attempted to raise the human race out of the gutter.
      Or it will all be wasted.

  2. It doesn’t make sense legally or morally that a government give out licenses that require the company to spend millions to drill and then ban them from producing the gas. It is like highway robbery communism way.

    • The government SOLD the PEDL’s in secret to lobbyist scam merchants and knew precisely what was intended to be a mutually profitable fraud to achieve and number of private and government common purpose agendas.

      That was all done behind locked doors in secret, and without notifying the public of the extreme ecological and pollution dangers of the fracking plan, which were all ready apparent in USA, Canada and Australia, and then spring it upon them without explanation or notification of the dangers other than vague assurances of cheap energy.

      That was the first of the lies and secrecy and obfuscation which Hove into view quite out of the “blue” on a deliberately uninformed and misinformed public.

      The vast amount of money charged for licences and spent on the resulting exploration was all based upon loans by little tin pot cobbled together zombie company front men, who were deliberately designed for bankruptcy and failure. Nothing more than profiteering fabrications set up for the very same banks. These onshore and offshore scam merchants set up the highly complex series of parent and child companies to exploit the opportunity for scamming and tax avoidance schemes in the first place.

      Ask yourself if the plan was to once again massively scam the criminally uninformed and distracted public by secretive means? Or was it all open and declared up front? Yes? No?

      The government get what they wanted, a countrywide network of deep bores in remote locations away from population centres, protected by the, now completely compromised stolen police force, and designed never to be given back.

      The 4500m deep boreholes were a requirement of the licences. Why was that a requirement? What purpose would they serve? Just cosmetic? They must have some purpose? Why was that not declared up front?

      And then of course we have seen the zombie company dead duck front men companies get to spend vast amounts of prospective dumb dumb investors money, pay themselves vast salaries and bonuses and collapse the companies on cue as soon as the poor dumb investors finally twig what a massive fraud ot all is?

      Too late, the agendas have been achieved, the scam worked, a few get rich at the expense of the many. Just one more scam amongst so very very many, par for the course.

      Then the only thing left is to destroy democratic protest, and compromise the human rights issue, always a thorn in the side of the profit motive predators.

      The result has been a crushing of democratic representation and the deliberate criminalisation of the human rights of protest, was that a secondary tory imperative all along?

      Do you feel safer after all this? Has democracy been strengthened and seen to be done? Is your house, your job, your family, your country and your environment safer and more secure as a result of all this?

      Was the compromising of the tax payer funded police another secondary agenda? The tory politicians want a private unaccountable police force, not a publically accountable legally responsible police force, that would protect the public from corporate greed and anti democratic greed? They want a privatised force to protect them and their corporate owners, not to protect me and you and our rights, they are ignored and crushed at every turn.

      Was that was also a part of this political coup process and hence a useful way to achieve it?

      So, what does that tell us? That the entire operation was a deep scam to entirely alter what little remains of British democracy into a corporate owned privately run and funded oligarchy with totalitarian New World Order tendencies?

      Or just as it appeared on the surface? A simple and honest move to achieve cheap energy before renewables can be invested in and make us all free of centralised energy oligarchs?

      Are renewables, the only sane energy strategy, being invested in as a matter of urgency?

      Perhaps to assess which of those possibilities, or a number of other agendas, one only has to look at the actual operation of how this was and is being done?

      Was it all up front and above board and no secrets or obfuscations or lies or dishonesty of any kind?
      Did the government and the operators “come clean” on all the truth of the operation of fracking my it’s various methods, the risks to water, land, food and air, the inevitable crippling of democracy and human rights to protect it, the compromising of the police and the withdrawal of representative democracy? Were any of these issues explained and made common public knowledge?

      Or is it a miserable secretive obfuscation and deceitful operation to scam the tax payer and propagate corporate machinations and control imperatives even deeper into the fabric of government and carve up our countryside into easily consumed open to exploitation bite sized chunks for further divide and conquer motives?

      How has it gone so far?

      Ask yourself which is more apparent by the actual operation of this fracking debacle?

      Scam or honest? It really is that simple.

      Act accordingly.

  3. The Scottish Government consulted the people. Who handed out the licences without consulting the people? I do believe it was the UK government. The fossil fuel industry had evidence that fossil fuel use contributed to climate change, and sat on that evidence for decades, just as the tobacco industry sat on evidence about the harms of tobacco, and have had to pay out big time in the US. I think it will be these companies that are due for a huge bill to pay for climate change, and also for the plastic pollution of our oceans, that we now know about, yet INEOS are still producing the stuff. And I expect more plastic taxes will start hurting their bottom line even further. And the competition from renewables is so seriously rattling them that they seek to push governments to prematurely remove subsidies from renewables (they will soon be cheaper than fossil fuels anyway here in the UK, and in many parts of the world they already are) and get tax breaks for their own industry, and skew the planning system pro fossil fuels and anti renewables. No, INEOS and their fossil friends are the highway robbers, the climate robbers. Lets hope they file for bankruptcy (5 billion pounds of debt I understand) BEFORE this case gets to court. INEOS will go the way of Third Energy, and our role in the community is to keep pushing them away from our own communities, through democratic means. Power indeed to the people.

    • Ian Conlan
      The SDP may not be so keen on Fracking, but they are very keen on Oil and Gas Extraction offshore as well as the tax take from Grangemouth and associated industry. Hence not so much saviours of the planet due to a moratorium, but pragmatic in that keeping Oil and Gas production where you cannot see it, is better than seeing it, in all its glory, near where you live.

      Note that Scotland is our big oil producer, gas is not so beneficial. We do not use oil to generate electricity ( other than when wind and solar fail on cold days ), but certainly use it to power our transport infrastructure and heat outpr homes. The competition from renewables is not so hot in that sector yet. Hence fracking for gas is more of an aside to them. But they ain’t there to save the planet yet. Well not until the pop a moratorium on offshore oil and gas. Power to the elected, and Oil crazy SDP.

  4. Third Energy’s clutter up and obstruct the highway on our small country roads with their enormous trucks. They pollute our air. Can we get compensation for that too? We don’t INEOS trucks and air pollution either: one fracking operation is quite enough thank you.

  5. So, Nicola does a deal with the Greens, and now the consequences of that will be under scrutiny.

    Either INEOS gets compensated, which is more problems reference the management of the day job by the SNP, or they don’t and they reappraise their investment within the Scottish economy, which are bigger problems reference the management of the day job by the SNP.

    When you have an Achilles heel, best not to stick it in a trap-even a plastic one.

    And the winner is-Ruth Davidson.

  6. A rare outbreak of common sense north of the border it seems to me. Good luck INEOS, I look forward to the future announcements of exploration and testing successes leading to production of secure, low cost, plentiful gas resources right under your feet.

  7. The SNP knew this would happen. INEOS will win and the Nats can cry boohoo we tried our hardest. It’s a well known fact that a lot of the SNP want fracking to go ahead but they also need to appease the Green Party whom hold the key to another Independence referendum.
    The SNP are on path to lose more seats at next election with the rapid demise of Scotland and even the few seats the Greens can offer won’t give them a majority. It’ll be interesting to see what happens with Labour in Scotland now they are taking a hard left stance. I can see the rise in the Conservative support North of the border increasing.
    Slowly but surely you can see that the Corbyn and SNP era has long since peaked and people with a brain and aspirations will prevail as is always the case.

    • If indeed INEOS ‘win’ then we all lose. JR gets another yacht or three, maybe a house in every country and then implodes into obscurity.

      In the meantime, rights of a real human are lost, environment is damaged beyond repair from fossil fuels and its products.

      3,2,1 you are back in the room; not on our watch, GBK, not on our watch….

  8. I suspect GBK that if Jim wins he might plough a few more £million into environmental sustaining projects. Maybe Iceland, but probably not Scotland!. That’s the problem with these darned capitalists, they make money and some of them actually put that money into projects that some would like to, but can’t afford to, whilst they sneer at those who do.

    It could just be that when the QCs get busy trawling through how thoroughly, and correctly, the decision was arrived at, light may be shed upon some areas. Maybe there won’t be much to see but I have a suspicion there will be. Redacting and shredders get overtime in these situations but are rarely successful.

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