Legal

Ineos loses legal challenge on Scottish fracking “ban”

Scottish Court of Session

Scottish Court of Sessions

The shale gas company, Ineos, has lost its case against the Scottish Government’s policy on fracking.

The judge at the Court of Sessions, Lord Pentland, ruled that the Scottish Government’s “preferred policy position” against fracking for shale gas in Scotland should stand.

The ‘effective ban’ on fracking announced by Scottish ministers last year does not amount to a legally enforceable prohibition, therefore Ineos’s case is “unfounded”, Lord Pentland said.

He also found that since the Scottish Government had not yet made a final decision, the claim by Ineos and Reach Coal Seam Gas for compensation on the basis of a breach of its human rights was premature.

The ruling stated:

“The petition is predicated on the proposition that the Scottish Government has introduced an unlawful prohibition against fracking in Scotland.

“Whilst acknowledging that there have been a number of ministerial statements to the effect that there is an effective ban, the Lord Advocate, on behalf of the Scottish Ministers, made it clear to the court that such statements were mistaken and did not accurately reflect the legal position.

“I consider that the government’s legal position is soundly based and that there is a indeed no prohibition against fracking in force at the present time.”

Lord Pentland added that the present position was “an emerging and unfinalised planning policy”, saying there was “no basis on which the court should interfere” with an ongoing policy making process.

The lawyer for the Scottish Government, James Mure QC, had told the court the actual policy on fracking would be decided in October this year.

He said “the concept of an effective ban” was a PR “gloss”, describing it as “the language of a press statement”.

“Cause of acute concern” – Paul Wheelhouse

Scottish energy minister Paul Wheelhouse said today:

“I welcome the Court of Session’s ruling on this important issue, which has been a cause of acute concern in communities across Scotland.

“This decision vindicates the extensive process of research and consultation which the Scottish Government has undertaken since 2015.

“As I set out in October, our preferred position is not to support Unconventional Oil and Gas extraction in Scotland, and that position remains unchanged.

“I have repeatedly set out to parliament that we would undertake a Strategic Environmental Assessment (SEA) ahead of finalising that position and that approach has been endorsed by the overwhelming majority of the Scottish Parliament.

“The work to complete the SEA and a Business and Regulatory Impact Assessment is currently underway and the findings will be carefully considered.

“In the meantime, a moratorium is in place which means no local authority can grant planning permission and ministers would defer any decision on any planning application that did come forward until the policymaking process is completed.

“The practical effect of the current moratorium and the policymaking process which is underway to finalise our position is that no fracking can take place in Scotland at this time.”

“Scottish Government did not know what it was doing” – Ineos

In a statement, Tom Pickering, Operation Director of Ineos Shale, said:

“We are grateful to Lord Pentland for clarifying that there is no fracking ban. The Scottish Government caved in to pressure from ill-informed environmental activists. Today’s judgement makes it clear government decisions will now have to be based on facts and science, rather than prejudice and political expediency.”

“We welcome the decision announced by Lord Pentland today.  We are in the extraordinary position where a senior judge has effectively concluded that the Scottish Government did not know what it was doing. He has ruled that there is no fracking ban in Scotland.  We are sure that this will be a surprise to all those who heard the First Minister and others repeatedly tell Holyrood the exact opposite. It is for MSPs to decide whether Parliament was misled deliberately or simply through incompetence.

“The Scottish Government caved in to demands from ill-informed environmental activists. It ignored the evidence presented by its own scientific experts. Today’s judgement makes it clear the SNP Government will now have to make decisions based on facts and science rather than prejudice and political expediency.

“It is astonishing how the government could have got this so wrong.

“If Scotland wants to be considered as a serious place to do business then it is imperative that Government ministers can be taken at their word. We cannot have a situation where we need to go to court to find out what government policy is.  Business needs a transparent environment that will encourage investment in Scotland for the long-term.”

“Huge relief” – Friends of the Earth

The ruling has been welcomed by Friends of the Earth Scotland, which submitted a public interest intervention in the case. It argued that any ban was lawful and it was required to meet Scotland’s legally binding climate change commitments.

Mary Church, Friends of the Earth Scotland head of campaigns, said:

“We are delighted that INEOS has lost its challenge against the Scottish Government’s ‘effective ban’ on fracking. Today’s ruling will come as a huge relief to the thousands of people who have fought to stop fracking in Scotland, particularly those faced with the prospect of living near this dirty, damaging industry.

“INEOS should listen to the people and parliament of Scotland who have made it clear that there is no support for fracking, and give up on its plans to trash the central belt and the climate.

“Support for a ban on fracking from communities on the frontline of this industry, people the length and breadth of Scotland, and almost all the parties at Holyrood is overwhelming. There is little doubt that a strategic environmental assessment will support a ban on fracking given the mountains of evidence about the risks of the unconventional oil and gas industry to our environment, climate and people’s health.

“We urge the Scottish Government to move forward with its decision making process on fracking as swiftly as possible and use the powers now available to them to legislate for a full ban, and draw a line under the issue of unconventional oil and gas extraction for good.”

“Abandon dangerous scheme to frack Scotland”

Wenona Hauter, Executive Director of Food and Water Watch, said:

“In its quest to frack Scotland, Ineos has been blocked by local government officials, the courts, and the overwhelming majority of the Scottish public. The company should heed this overwhelming opposition and abandon its dangerous scheme to frack Scotland.

“Ineos’ fracking for plastics has made a significant contribution to pollution on both sides of the Atlantic. The company has most recently complained about the negative impacts of the shutdown of the Mariner East pipeline in Pennsylvania, which supplies its Grangemouth facility. It is clear that Ineos only wants to frack the UK in order to secure a cheap feedstock for its plastic production.

“The next step for the Scottish government is to clear up any remaining ambiguity and enact a once-and-for-all total ban on fracking.”

“Confirm the ban”

Leigh Day solicitor, Carol Day, said:

“We support the call on the Scottish Government to now formally confirm its ban on unconventional oil and gas exploration in line with public opinion and other jurisdictions of the UK that are on the same trajectory.”

“Lancashire residents misled”

A spokesperson for Lancashire For Shale, accused campaigners of misleading residents over the Scottish fracking ban.

“It is quite clear that opponents of shale gas extraction have used news of a supposed ban in Scotland to try and influence public opinion here.

“We’ve seen them repeatedly push the false line that the Westminster government in England has behaved somehow recklessly in supporting the industry, whilst claiming that the Scottish government has acted to protect its people and prevent harm.

“The only things that a ban on the safe and responsible extraction of Lancashire shale gas would prevent are economic opportunities, jobs, and the chance to improve energy security and cut emissions by reducing our dependency on imported foreign gas.

“Campaigners should be ashamed of the way they have tried to pull the wool over the eyes of Lancashire and its people.”

81 replies »

  1. Great to see that when an area develops some renewables, it is transitioning! The English language can be jiggled so easily to imply something that the facts do not.

    Err, no, it is (sensibly) developing a balanced energy policy. Maybe the UK could do the same? Perhaps follow the way Oman deals with objections?

    • Definition of moratorium ‘a temporary prohibition of an activity’

      Definition of ban ‘ prohibit especially by legal means or social pressure’

      It would appear Ineos didn’t know the difference and needed a judge to explain

      Who’s a silly billy?

    • Your a great for these little self revelatory sound bites martin?

      “The English language can be jiggled so easily to imply something that the facts do not.”

      I think that just about sums up your entire output and content doesn’t it?

      Hoist, petard, hook, line and sinker, or perhaps frack, crime and stinker?

  2. How could Ineos lose a legal challenge on scottish fracking ban as DoD suggests when there is no fracking ban? You can always count on DoD for its unbiased coverage, eh? ;O)

    • Because it was an invalid challenge. People are using the word ban and moratorium interchangeably. They are in effect the same but Ineos picked the wrong target (which wasn’t one). Silly mistake – should’ve done their homework.

      • Philip, were they justified in believing that there was a ban? First Minister said, ““Those who, like me, do not believe that fracking should go ahead in Scotland should welcome the fact that fracking in Scotland is banned.” And, ““Fracking is being banned in Scotland, end of story.” Or the SNP website which said, ““The Scottish Government has put in place a ban on fracking in Scotland – meaning fracking cannot and will not take place in Scotland.” Or the dozens of other SNP statements which claimed that fracking was banned? I guess your point is that INEOS should assume that these people are lying. After all, that’s what anti-frackers do. It is at the foundation of their anti-fracking arguments. I have to say that I agree with your point here, Philip.

        • No EKT … As posted further down – you need to know that the English language is more nuanced than that. Many words have multiple meanings and it is not incorrect to call a ‘moratorium’ a ‘ban’. It follows that the enquirer should ask, if they need to, about the legal context of its application.

          “Fracking is being banned in Scotland, end of story.” may have been inappropriate or exaggerated, you’d need to check the full context to be judgemental about that.

          INEOS shouldn’t assume anything about the meaning of a word until they check its usage and context. Wishing to project ‘lying’ onto others is not a good starting point, or a good look. It’s just what you gas-heads do again and again.

          • Well, Philip, there isn’t much nuanced about the Judge’s response. He said that the ministers statements were “mistaken,” he did not say that the words had multiple meanings, did he? Then again, you approach things from the context where facts don’t matter and emotions rule the day, so your perspective is understandable.

            • And the Judge rejected Ineos’s case for the reasons stated

              You’re out of touch and out of your depth EKT (which probably explains your desperation to land a blow).
              What don’t you understand about this? – the moratorium process is actioned through planning. NB Moratorium is synonymous with Ban but it’s legal application and context is different. It is NOT wrong to call it a ban but it would be more correct to say ‘effective ban’ because that’s what it is. Not that confusing except for people who don’t like it and need further explanation.

              This matter was discussed on DOD 6 days ago where I said “As stated, the moratorium is tantamount to ban (different procedural logic, same outcome). ” …even GBK agreed!

              and the ministerial quotes were clarified there as follows:
              ——————–
              Ms Blackman was pressed by Any Questions? host Jonathan Dimbleby, to clarify the Scottish Government’s position. She said:
              “The reality is that we don’t support the development of an unconventional oil and gas industry in Scotland and that’s why a moratorium was introduced in 2015.”

              Kirsty Blackman asked if it amounted to a ban, she replied:
              “We don’t have the full powers over this. We’ve had to introduce a moratorium in terms of the planning process. Because it’s through the planning process, a clear legal process has got to be followed.”
              ———————-

              i.e. the moratorium had been in place since 2015. Here’s a couple of statements from then…

              Fergus Ewing: told the Holyrood chamber, to applause. “I am therefore announcing a moratorium for the granting of planning consents on all unconventional oil and gas extraction including fracking.”
              Dr Richard Dixon stated:
              “While we are calling for an outright ban, a halt on the industry while a full examination of health and environmental impacts is carried out is very welcome. Scotland joins France, Ireland, the Netherlands and New York State in a long list of countries and regions which have acted to stop the unconventional gas industry. We are convinced that a proper examination of the mounting evidence of health and environmental concerns must lead to a full ban.”

  3. Egg on INEOS. So their own lawyers didn’t tell them the difference between a “moratorium”, an “effective ban” and a legally watertight permanent “ban”. Whichever way, the Scottish public is clearly opposed to fracking, it is going to be banned, and INEOS face HUGE opposition in England. Its also financially and ecologically unsustainable. Adios Ineos!

  4. Miss Leading Headline . Exactly How Have Ineos Lost ? They Have forced A judge to clarify if a fracking Ban was in Effect or not. it anything This has exposed the Lie that has been constantly Repeated. That Scotland had Banned Fracking. We now know that no such Ban is in Effect. I would call that a plus point for ineos As they can now make planning applications in the knowledge they will have to be given proper consideration.

  5. Al-you must realise the anti narrative doesn’t work unless the meaning of words are changed!

    It’s their “alternative” use of the English language, but, they will find, not “sustainable.”

    I think you will find plenty of references to the Scottish ban by posters on DOD, suggesting England is alone and should follow suit. Did they know it was not a ban and were therefore telling Porkies to manipulate opinion? They might have “checked in a dictionary and avoided the terrible PR.”

    “terrible PR” for INEOS? Absolute twaddle. As far as this situation is concerned, they can’t lose in terms of PR. So far, they have established, as one of the largest industrial investors in Scotland, that the SNP has misled the public with previous statements. If there is then a ban, this will be utilised in their claim for compensation. The winner is Ruth Davidson, and in World Cup terms, she will not miss an open goal to point out the end result of such a mess is less taxation from Scottish industry, and therefore higher taxation to the Scottish public.

    • Assuming you’re British Martin I’m surprised that you haven’t yet learned that the English language is more nuanced than that. Many words have multiple meanings and it is not incorrect to call a moratorium a ban. It follows that the enquirer should ask, if they need to, about the legal context of its application.

      [Correction at poster’s request]

  6. Yes, PhilipP-Barclays could mean Barclays Bank or, in a parallel universe, Barclay Brothers! So just substitute one for the other if it is a hook to attach a corporate governance label to! We know how it works. However, maybe you should direct your twaddle to the Judge who has just made his finding on the basis that the two words do have a very different meaning in this context. No wonder two thirds remain unconvinced when you continue to confuse each other, let alone them!

    Ahh, refracktion is back! Thought you were busy sorting out your snaps to win the prize to fund the increasing cost of diesel! Now, that is really funny. Should just leave around £20 to pop down to the bookshop and grab a copy of Jim’s book for further reading-out today. All proceeds to good causes-QCs, injunctions and removing a few SNP seats! Enjoy.

    • Glad to see you are still as odd as ever Martin.

      Most people would say “The Barclays” for the brothers and “Barclays” for the bank. I think it’s only people like you who need to twist words because your arguments won’t work unless you do who would be deliberately confused.

      Two thirds may remain “unconvinced” by either side but there are still twice as many who agree with me as agree with you petal.

      Has Sir Jim got a book out? I’ll wait until its remaindered at WHS if I need some more cat-litter.

  7. You should read a few of the classical posts your anti buddies post, refracktion. No twisting of words required, that is a separate matter. Barclay gate is one example, red diesel gate another, piling gate a third. Simply a case of some wanting to rush out a comment as if it has some fact behind it, educating the “masses” without bothering to check the fact! Maybe there are some who don’t bother to look into facts and just want to be “excited”, but for others to assume that is the case is patronising in the extreme.

    Just like tagging someone petal whilst you fail to get your maths. correct, darling. (Two thirds are not remaining “unconvinced” by either side.) Nice of you to show such a good example of how this “nuancing” goes.

    However, when done with the fiction, I am sure you will be able to find a copy of Jim’s book for the facts-but, second hand prices might require a premium, with demand so high.

  8. Yes, refracktion, you can also Giggle when you are likely to pop off, according to todays news! Trouble is, if you are worrying about that as you are crossing the road and get run down and killed by a bus, can you claim from Giggle?

    Good old Amazon, the home of the budding businessman. Get a bulk discount on an item you think will be in hot demand and then make some money! A budding Jim? Maybe Jim does it with QCs?

    “Using data in haste”- never mind, a nice glass of Shiraz with your “nuance” should wash that down! Wasn’t that how you ended up with a diesel? Seems to be a bit of a trend.

  9. Perhaps you would like to contribute one, Sherwulfe?

    Come on, get your head out of Jim’s book and give us all the benefit of your newly found knowledge. How to purchase $30 billion of assets, for $9 billion, from BP. Jack would be very interested in how Lord Brown achieved such a stupendous “steal”. Or, you could give a coherent revue of how one energy company reported a 22% increase in wholesale energy costs since March and square that with some of your buddies reports of large quantities of cheap oil and gas sloshing around in the world markets?

    A little bit of “nuancing” and/or using data in haste and should be a doddle-except exciting even the easily excited should not be confused with flogging a dead horse.

    • Dear me, someone seems to be suppository of all knowledge where SHJ is concerned?
      It must be getting pretty crowded there by now?
      Nasty!
      Click!

    • Plenty of professional multi nationals have explained how you can produce UK shale and sell it for less than it costs to extract.

      We have a word especially to explain that system.

      It is called a Ponzi scheme.

      Some may need a judge to explain to them what that means. Most people don’t.

      All you need is an industry where you can hide your losses and a continuous flow of fools to pay for that continuous loss.

      Driven by greed and the desire to make money from no effort fools rarely see that they are backing a loser as they are dangled the ‘hope’ and ‘won’t be long now’ carrot to keep them coughing up the money.

      All ponzi schemes eventually get exposed leaving rich organisers and penniless investors

      https://www.desmogblog.com/2018/04/18/finances-great-american-fracking-bubble

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