Court urged to dismiss Ineos challenge to Scottish fracking moratorium

Scottish Court of Session

Scottish Court of Sessions. Photo: Wikimedia Commons

A lawyer for the Scottish Government has urged the Court of Sessions to dismiss a challenge by two gas companies to the moratorium on fracking.

A judicial review of the moratorium began this morning, brought by Ineos Shale and Reach Coal Seam Gas.

They are claiming that it was unlawful for the Scottish Government to instruct local authorities in October last year not to grant planning permission for fracking and other unconventional oil and gas activities.

The government’s case is backed by Friends of the Earth Scotland, which said that the moratorium was needed to meet climate change obligations.

The lawyer for the Scottish Government urged the court this morning to refuse the judicial review.

James Mure QC told the hearing that the companies were mistaken to think that a ban was in place. The decision by the Scottish Government still amounted to a moratorium and therefore was legal, he said.

“The concept of an effective ban is a gloss. It is the language of a press statement. What they [the Scottish Government] have done is to announce a preferred position on the issue.

“They have not yet adopted a position. Any position which the government will take has to undergo an environmental and strategic assessment.

“The court should therefore allow the policy-making process to go to finalisation which is expected in October this year.

“The court should refuse the petitioners’ position.”

Mr Mure also told the court the companies were wrong to think that having exploration licences for fracking gave them a special status:

“The licence holders don’t have a particular privilege.”

Scottish Parliament 170531 Friends of the Earth Scotland

Petition against fracking delivered to the Scottish Parliament on 31 May 2017. Photo: Friends of the Earth Scotland

Friends of the Earth Scotland has been granted a rare permission to intervene in the case. In a legal submission released as the case got underway, it said:

“Friends of the Earth Scotland submits that a ban or moratorium on any unconventional oil and gas exploitation in Scotland is not only lawful but may be said positively to be required to ensure compliance with Scotland’s climate change obligations.”

“The Scottish Government was wholly justified in imposing a moratorium on unconventional oil and gas exploitation.”

“Indeed, given the current domestic regulatory framework, Friends of the Earth Scotland would submit that the Scottish Government is required by its obligations under international, EU, UK and Scots law to impose such a moratorium.”

The group added it was “clearly within the powers of a Scottish public body” to adopt a general policy against granting permission for unconventional oil and gas developments on climate change grounds.

“Any ban, or moratorium, on fracking in Scotland is to be seen in the context of an overall shift away from reliance on fossil fuels in order to meet climate change obligations as per the 2017 Scottish Government Energy Strategy which sets a goal for half of all energy needs to be met by renewable sources by 2030, and decarbonisation by 2050.”

Ineos Shale and Reach Coal Seam Gas have said there were “very serious” errors in the decision-making process.

They are challenging the legality of the decision and claiming damages for an alleged breach of their human rights. They have both said their business interests have been “adversely affected”.

Ineos holds two exploration licences, granted by the UK Government, in the central area of Scotland where commercial quantities of shale oil and gas are thought to be most likely. The company claims that millions of pounds it invested in acquiring fracking licences had been “rendered worthless”.

Yesterday, an Ineos spokesperson told Energy Voice:

“Ineos Shale is asking the Scottish Court to decide whether the fracking ban is lawful. We believe the Scottish Government exceeded its powers and lacked competence to impose a ban.”

Scottish Labour’s environment and climate change spokesperson Claudia Beamish said today:

“This action is a classic case of a big business ignoring the wishes of communities in favour of its own profit margins.

“Ineos is out of step with the public and the Scottish Parliament when it comes to fracking. The people of Scotland don’t want it to happen and the Scottish Parliament has said that it is not the right option for Scotland – not right for our communities, our water, our air and the future of our planet.”

The case had been allocated four days. But the lawyers suggested that it could be completed in three.

“Fracking cannot take place in Scotland”

Scottish fracking ban

The decision on a moratorium dates back to 3 October 2017, when the Scottish Energy Minister, Paul Wheelhouse, announced:

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

Following a consultation and research programme, Mr Wheelhouse said:

“The conclusion of the Scottish Government is that we will not support the development of unconventional oil and gas in Scotland.,

“We have today written to local authorities across Scotland to make clear that the directions that gave effect to the moratorium [introduced in January 1015] remain in place indefinitely.”

He added the action was:

“Sufficient to ban the extraction of unconventional oil and gas in Scotland”.

More than 60,000 people responded to the Scottish Government consultation and more than 99% opposed fracking.

Mr Wheelhouse said his decision was based on the responses and the research findings. He said he was concerned about the insufficient evidence on health impacts and he drew attention to the conclusion from KPMG that under its central scenario that unconventional oil and gas could represent 0.1% of the Scottish GDP.

He also said the Committee on Climate Change had concluded that unconventional oil and gas extraction in Scotland would make meeting existing climate change targets more challenging.

When the moratorium was announced, Ineos Shale said a thriving Scottish shale industry would provide £1bn to local communities and bring energy independence. The company’s operations director said:

“This decision, which beggar’s belief, means gas becomes a cost for the Scottish economy instead of an ongoing source of income.

“It speaks volumes about Scottish leadership on the world stage and sends a clear and negative message to any future investors in Scotland.

“Expert reports have clearly stated that this technology can be applied safely and responsibly– but it will be England that reaps the benefits.”

36 replies »

  1. well if Scotland won,t support Ineos they should close down grangemouth & re-locate to England.

    • And a report from the BBC News today illustrates the importance of energy security.

      “The Rhum gas field in the North Sea, which supplies 5% of the UK’s gas, is half-owned by the Iranian State Oil Company.
      BP, which owns the other half, is in the process of offloading its share to small North Sea specialist Serica, but that deal has not completed.
      BP does huge amounts of business in the US and will be desperately keen to avoid being seen as a business partner of the Iranian state.
      It’s a good example of how sanctions against a state can have wide repercussions for the international business community.”

    • You would think Ineos would have known the difference between a moratorium and a ban. You would think Ineos would have checked their licence privileges.

      Ineos are offering up a very weak case with little chance of success.

      That said they are entitled to their JR

      They could re-locate to England where well organised communities have pummelled the industry for the last 8 years but I doubt they would want to be associated with an Industry that has failed so badly even after having applications to frack passed in 2010.

  2. It’s a lose/lose for Nicola. Either Jim get’s compensation, and INEOS are content to continue to invest in Scotland, or he doesn’t and he may very easily change his mind about that.
    Either way, the cost of doing a deal with the Greens will be exposed and Ruth will be the winner. Name the baby Jim, in respect, and it will be a game changer.

    • Unfortunately the SNP brigade are as t***k as the antis and their politicians can be seen to do no wrong. I wouldn’t get your hopes up about any major backlash.

      • ‘t***k as the antis’

        We agree. We are ‘trick’

        Definition of trick. To outwit, outsmart, out-think, outmanoeuvre, outplay, be cleverer than.

        8 years with nothing to show because of the power of well organised communities.

        Now that’s ‘trick’

        Maybe in the future we could use the word ‘shail’ to describe something that was both a sham and a failure.

        It would have an appropriate origin.

    • Dear me, this unquestioning hero worship of ineos and frankly bizarre irrational meanderings are embarrassing guys?

      Well well, the Scottish government lawyer asks for the judicial review of the moratorium brought by Ineos Shale and Reach Coal Seam be dropped and is backed by Friends Of The Earth Scotland?

      We will see if ineos still suicidally persist in this anti democratic challenge to the entire Scottish people and government?

      I can’t see ineos winning any friends of the earth and influencing people in Scotland in any other of their activities in Scotland after this?

      It seems ineos are running out of places to exploit?

      Maybe ineos will move their grangemouth operation to North Korea? Or China? Or Russia? Because we don’t want them here either?

      • I am Scottish so I speak for the country more than you…the 99% of Scots don’t care about fracking. The 60k quoted were handpicked by anti fracking organisations.

        • You don’t own people or speak for thousands, no one does, We are all human beings not artificial countries divided from each other. That is just divide and conquer politics, not reality.

          I don’t know who speaks for anyone they don’t love or care for or respect? Certainly you don’t speak for those you wish to impose this awful poisonous fracking debacle on. That is not love or care or respect.

          No you don’t speak for those that your industry will harm, they speak for themselves and they have said ” No”!.

          I speak for those I love and who love me and I will protect them from this filthy industry, just as they will protect me.

          I honestly really can’t really see 60000 people being handpicked by anyone? That is not rational is it?

          This planet is under attack and it needs our protection.

          Drop the dead fracking donkey and fight to preserve this planet from poisonous industries like fracking.

          You know that is true.

        • Absolute B###oks.
          I was one of the 60,000 asked and I was in now way handpicked as you say.
          Fracking only benefits the likes of Ineos and other multinational corporations to the detriment of the communities, environment and health.
          It’s been proven time and time again that fracking has some major issues.
          Scotland is now a world leader in renewable energies and to allow fracking would be a huge step backwards from the goal of becoming a 100% clean enery country.

  3. “Friends of the Earth Scotland submits that a ban or moratorium on any unconventional oil and gas exploitation in Scotland is not only lawful but may be said positively to be required to ensure compliance with Scotland’s climate change obligations.”

    So, can we take it that FoE Scotland believe that only unconventional oil and gas contributes to climate change, and conventional oil and gas exploration can continue without causing problems?

    • Am sure FOE would like to take up the gauntlet to remove all fossil fuels, however, this particular case is about unconventional oil and gas extraction; one step at a time JH.

    • John Harrison “According to EPA analysis, natural gas well completions involving hydraulic fracturing vent approximately 230 times more natural gas and volatile organic compounds than natural gas well completions that do not involve hydraulic fracturing” Source Oil and gas: Information on Shale Resources, Development, and Environmental and Public Health Risks, U.S. Government Accountability Office, September 2012 p.35

      For the avoidance of doubt venting means gas released directly into the atmosphere (where it’s a major contributor to global warming).

      In purely practical terms is there any conventional on shore Scottish oil and gas exploration? Genuine question.

  4. Good to see socially and environmentally aware politics happening north of the border. The tide is turning in the States too (but slowly) even in the face of Trumps efforts. The Frack fanatics are on borrowed time given the way awareness of impacts and environmental laws are being evolved to meet the challenges ahead.

  5. Perhaps Mr. Mure should have had a chat with Mr. Wheelhouse? “They have not yet adopted a position”. Think you will find they have, Mr.Mure.

    Not a good way to start. I spy something beginning with T.I-thin ice!

    Perhaps the 60k were like the anti “army” regarding TE planning application?

    • So now the unacceptable truth begins to emerge?
      This is todays Unearthed report on the governments being unwilling to refuse the possibility of putting high level nuclear waste beneath our national parks?

      What we should be asking ourselves is how these deep wells are to be attempted and by whom and where?

      All the denials from this greedy industry are now out in the open.

      It may be that fracking was never the ultimate goal of these operations at all, merely a stopgap and an excuse to explore areas for the dumping of high level nuclear waste?

      If they want to dump high level nuclear waste under our national parks, then under isolated rural communities have no protection whatsoever.

      Now perhaps we see why these scattered isolated rural communities are so targetted by the industry?

      Truth will out, it was only a matter of time.

      This is why this paranoid, secretive and government sanctioned industry is and should be so vigorously and vehemently and successfully opposed.

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

    Sounds pretty much like a ban to me John. Shame Mr. Mure didn’t speak to Mr. Wheelhouse. The rest of us can at least read, John.

    However, I suspect your N.Sea investments will still be OK with oil and gas prices rising. Trouble is, there may be no where to transport the product to-these pipelines can be a problem if maintenance is restricted.

    • I am comforted by the fact that the anti antis are now reduced to pinning their hopes on the ludicrous presumption that pipe line operators have the legal contractual ability to turn major gas lines off whenever they want and could continually control gas prices through operation ‘maintenance’

  7. Expensive nuclear generation is indeed a problem, perhaps government support reveals something else about the new nuclear dawn? Perhaps also that reveal indicates a related situation regarding the onshore natural gas debacle? So what would that link be?

    Nuclear power generation, was always a pig in a poke, it has always been more to do with the production of weapons grade plutonium than the actual production of electricity, though that is a by product and although outrageously over expensive, is used as the excuse for such nuclear developments in the various nuclear facilities. there is no such thing as a single use process that costs the country so dearly, there are always multiple aims and goals, whether they be admitted and declared or not.

    The nuclear facilities accident record is dire and often concealed under the cover all label of national security. Where have we heard that before?

    Highly toxic high level nuclear waste is building up in totally unsuitable and dangerous conditions across the country and the industry is desperate to dispose of it cheaply by whatever feasible means.

    The feasible means that is being proposed is for deep disposal boreholes in rural isolated spread out locations, so that the label of cancer and health degradation hot spots cant be pointed at any one location, but spread across the entire country.

    The proposed method of disposal choice is deep boreholes and what particular industry is best placed to fulfil that roll? Why the fracking industry of course. The reluctance to return sites that have run out of their explore by date also is indicative of another use planned by the operators, either as a sell on or as a point from which further deep bore exploration can be carried out to establish potential target sites, possibly that has all ready taken place. That in itself may explain the attitude of the police towards protest, such escalation in aggression must have a root cause, nationally important issues of nuclear waste disposal may explain why that attitude is so extreme?

    We are all ready seeing it in the fracking industry and the almost paranoid secrecy and government sanctioned support whilst simultaneously denying they have done any research and publishing energy estimates which do not support onshore gas production, clearly points to a deeper agenda, and high level nuclear waste disposal fits the bill.

    Where better than failed or out of permission fracking and oil extraction sites?

    If the onshore natural gas industry is indeed secretly tied up with the nuclear waste disposal industry, the opposition to fracking will be as nothing compared to the opposition to high level nuclear waste being dumped in disused fracking sites and unreleased out of lease and licence fracking sites?

    That, was the point of the post.

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