Legal

Councils can use climate change evidence to reject fracking, government lawyer tells High Court

pnr 180828 fence slider

Fencing at Preston New Road shale gas site, August 2018.  Photo: Ros Wills

English local councils can reject national policy on fracking if they have evidence that the process contributes to climate change, a government barrister conceded today.

The admission came in the closing session of a three-day challenge at the Royal Courts of Justice to the government’s blueprint for planning, the National Planning Policy Framework (NPPF).

The campaign group, Talk Fracking had argued that the government acted unlawfully in incorporating support for shale gas into a revised version of the NPPF, published in July.

Talk Fracking said the policy, originally in a 2015 Written Ministerial Statement, was based on outdated science on the level and potency of greenhouse gas emissions from fracking sites.

The group said new scientific developments cast doubts on the government’s case that onshore shale gas had a lower carbon footprint than imported liquid natural gas.

Talk Fracking’s case centred on paragraph 209a in the NPPF which said local authorities should develop policies to facilitate onshore oil and gas exploration and extraction and recognise their benefits in supporting a transition to a low-carbon economy.

Defending the local government secretary, Rupert Warren QC said:

“Paragraph 209a does not prevent any additional evidence being taken into account by mineral planning authorities.”

The judge, Mr Justice Dove, asked:

“Is it your position that it has been for the plan-making authority to say ‘because I have examined evidence that undermines the government’s case for shale gas I am not including shale gas extraction in my local plan?’”

“Yes”, Mr Warren replied.

The judge asked Mr Warren:

“Your submission is that, notwithstanding the benefits of shale gas, it still would be open for a decision-maker [a local authority] to conclude on the basis of scientific evidence put to that decision-maker that the facts on climate change depart from paragraph 209a.”

Mr Warren said:

“209a cannot dictate to the plan-maker and decision-maker. There will be different factors. Things change over time.”

Mr Justice Dove put it to Mr Warren:

“You are placing the burden on the decision maker to evaluate the science.”

Mr Warren replied:

“No, I am saying this is national policy. Other people can come along with evidence over time and show that the WMS is so out of date as to be proved wrong.”

This interpretation of paragraph 209a has important implications for the NPPF, the judge said.

The government’s support for shale gas, expressed through the NPPF and the Written Ministerial Statement, is regularly quoted by operators during discussions on planning applications and local plans.

Supporters of an onshore oil and gas developments often stress that national policy should be given “great weight” in any decision by local councils.

At the same time, opponents of onshore oil and gas have been told their evidence on the likely climate change effects of fracking could not be considered.

At the inquiry into Cuadrilla’s Preston New Road site, Friends of the Earth’s climate evidence was rejected on the grounds that it was a matter for future policy discussion, not a planning appeal.

Yesterday, David Wolfe QC, for Talk Fracking also argued that the government acted unlawfully because it failed to consider the Mobbs Report. This was a key piece of evidence in Talk Fracking’s submission to a consultation on the revised NPPF. It countered the science behind the Written Ministerial Statement, itself based on a review commissioned by the government from David Mackay and Timothy Stone.

A senior civil servant had said it was “not feasible to assess the veracity” of the Mobbs Report. He also said there was no need to consider the climate change impact of fracking because it was an issue of energy policy and it had been assessed elsewhere.

Mr Warren added today that ministers did not have to take account of everything said by members of the public during a consultation.

He also said:

“There is no obligation on the Secretary of State to change or review a policy. That is not what he was doing here.”

He said the revised NPPF was simply copying over a policy from the WMS. It was a “cut-and-paste” exercise, he agreed.

“There was nothing in the consultation signalling a change in energy policy”.

Mr Justice Dove asked why the consultation had included Question 37, which invited comments on the minerals section of the NPPF.

Mr Warren replied the question covered all aspects of the minerals chapter and followed a broad approach to questions in other parts of the consultation.

The judge put it to Mr Warren:

“Don’t you think it is a bit rum that at the Preston New Road public inquiry there could be no consideration of new material but then you re-issue the policy and you don’t engage in any form with the material provided at the inquiry during the consultation?”

Mr Warren replied:

“I do not accept that this is the case. There have been pieces of scientific research commissioned that are in process of being completed.

“It would be wrong if the Mobbs Report was not considered if it was obvious that things have moved on and we were still clinging on to an outdated policy. This is not the case here. Work is continuing.

“We cannot hold up the NPPF because shale gas policy is still in the trenches. I can understand why Talk Fracking are concerned about it. But it does not make the NPPF unlawful.”

Earlier, Dr Wolfe said the Secretary of State should have had an open mind to the consultation.

“But that is precisely the opposite of what happened. They were not interested in anything that countered the case they were restating of a long standing policy. That completely undermined the consultation.”

Mr Justice Dove reserved judgement in the case and a related one brought earlier this week by Friends of the Earth. He is expected to give his rulings early in 2019.

Fashion designer, Joe Corre, who heads Talk Fracking, said after the hearing:

“It is an interesting development that it appears that local planning authorities can look at climate change implications and the science.

“If they are presented with the science that shows that fracking contributes to climate change they do not have to approve an application. That seems to be very straightforward.

“The barrister for the Secretary of State was asked clearly and he confirmed quite clearly. I think it is encouraging to see that local councils can decide on that basis and it will be easy to decide against fracking because there is an abundance of science to show that fracking is harmful to our climate and causes climate change.”

Talk Fracking member, Claire Stephenson, who brought the case, said:

“The government’s whole enthusiasm for fracking seems to be pinned on the highly questionable 2013 Mackay and Stone report. This report is continually cited in government policy from thereon in. In particular, the claims of using fracked gas as a “bridge” to a low-carbon future are insupportable and contentious.

“We haven’t the time to embark on another fossil fuel industry if we are to mitigate the worst of climate change. And the fracking industry is going nowhere fast.

“It’s time for the government to listen to science and put the brakes on unsustainable energy.

“We hope that by bringing this case, the planning system that currently places great weight on a pro-fracking agenda, will be reassessed in line with global scientific findings.”

  • DrillOrDrop reports on day one (Ministers should have checked environmental effects of planning policy, High Court told) and day two (Government ignored new evidence on climate impacts of fracking, court told) of the hearing

Reporting from this hearing was made possible by individual donations from DrillOrDrop readers

40 replies »

  1. Does this mean that the Mardh Lane decision should proceed to judicial review?
    Great weight was given to the government statement and we where advised by the PI that climate change and health issues would not be considered.

  2. Fantastic news for U.K Shale Gas. All they have to do now to get approval from local councils is show by producing our own gas at source it will emit lower CO2… 2019 will be the year for U.K Shale Gas…

    Does this ruling now mean Local Councils will have to pull out their £9,000,000,000 from foreign fracking operations as this would go against their own guidelines???

    http://news.mit.edu/2017/new-way-harness-wasted-methane-1017

    https://www.businessgreen.com/bg/news-analysis/3067118/the-time-is-now-government-unveils-plans-for-uks-first-carbon-capture-and-usage-project

      • Except Kisheny, climate change isn’t just about lowering CO2, there are other contributing factors such as methane which is a potent ghg. Marginal fugitive emissions can make fracking, in terms of climate change, completely non viable. The impact a fracking operation has should be considered in terms of the whole lifetime of the project. The global consensus of scientists is that no new reserves of fossil fuels should be extracted. This of course means no U.K. shale gas. Just because the industry spends millions to lobby governments to over extend dependency on fossil fuels does not change the science. And glad you pointed out, yet again, the wrongful investment in fracking by pension funds because it seems that divestment is at long last starting to make significant progress too. Excellent news. From a legal perspective, this has exposed the ludicrous situation the government has created. It is clear that the changes to the NPPF imposed by government with the nonsensical and unscientific declaration that shale gas and fracking is “beneficial” to tackling climate change could never stand up to meaningful scrutiny. If climate science is taken seriously then there should not be a fracking industry in the U.K. It will be interesting to see the report from the CCC in response to the IPPC report. It is hoped the CCC act responsibly and do not bow to political pressure. This government is already on track to miss the next two carbon budgets.

        https://www.theguardian.com/commentisfree/2018/dec/16/divestment-fossil-fuel-industry-trillions-dollars-investments-carbon

        • The global consensus of scientists is that no new reserves of fossil fuels should be extracted???

          So what are you using now? Old reserve of fossil fuels? If so when that batch runs out are you going off grid?

          • Hitting carbon targets by prioritising reduction may or may not mean no new ff development but unconvention should certainly be the first to drop off the list, especially when it entails building a whole new industry and pipeline infrastructure.

            • So reduce use and you don’t know if you want more fossil fuels? Add to that new industry with minimal pipeline infrastructure. Take PNR for example building a 300 metre pipeline to connect to main gas grid as opposed to importing by liquifying, transporting 7000 nautical miles then regasification then piping into main gas grid?

            • Absurd argument Kisheny. Add several hundred wells over a lattice of 2×4 mile blocks along with interconnected pipes, pumps, scrubbing technology and condenser systems and you’ll be getting more realistic for comparison purposes. Fracking isn’t like sticking a big straw in the ground and turning on the tap. Also, your single well is also largely spent within three years.

  3. An encouraging development for those of us opposed to the great lie that is fracking. The crassness of this government’s defence of its policies is only matched by its incompetence in just about every other sphere of government policy.

  4. Democracy in action. A good decision. Evidence is abundant. Best though to consider all (upstream+downstream) emissions in the round with the other environmental impacts. The earth is a pretty big ecosystem with respect to local planning. Locally I suspect it is equally, if not doubly important to gauge all impacts on the immediate environment… risks such as seismicity, impacts on air and water quality, road damage and related public health and safety etc.

    • What a great Christmas present for us all!

      Climate change has far reaching effects, not just physical, but social, financial and political.

      Now with this sea change in planning law, we are seeing how it will effect the government and their oil and gas paymasters.

      The next stage will be to make the oil and gas industry pay for the devastation it has, and is causing across the world.

      Exxon Mobil and Shell, have tried to close down the warnings from their own scientists Since the late 1970’s.

      There are court cases to prosecute them for that.

      Once that is proved, then we can begin to roll back the lies and reveal the truth about what has been done in our name.

      Once that is established every government on the planet will drop them like a hot brick and institute renewable energy sources at long last.

      Then we can hand Greta Thunberg and her generation to come, their future back to them.

      • And in the meantime, switch to a renewable provider – that’s what will really kick them in the nether regions.
        Demand your pension divests from fossil fuels and invest in renewable energy [better return anyway]
        Don’t buy an electric car until you can charge up with your own renewable power [solar array and house battery, wind if you have the site]. For now, downsize your car, use your bike, public transport or walk [hell you wont have to pay for the gym]
        Stop supporting supermarket plastic; grow as much of your own – yes even in a small garden or balcony flat. Buy local and without packaging where available.
        Ask your self when you pick up that consumable – do I REALLY need this?
        Eat less meat and buy from a local free range farmer if you can.
        Think of working local; cut down your travel.
        Teach your children these values and they will teach theirs.

        Greta WILL be able to say to her children and grandchildren that she stood up and made a difference; can all of you?

        • Brilliant sher, perfect. So everyone on here. The keep it in the ground folk. Yes!!!

          Walk to your allotment for your food, no meat.

          Work local, don’t travel unless on foot.

          Teach your children the same values

          Then we can all live in an Amish paradise

          As I walk through the valley where I harvest my grain
          I take a look at my wife and realize she’s very plain
          But that’s just perfect for an Amish like me
          You know, I shun fancy things like electricity
          At 4:30 in the mornin’ I’m milkin’ cows
          Jebediah feeds the chickens and Jacob plows, fool
          And I’ve been milkin’ and plowin’ so long that
          Even Ezekiel thinks that my mind is gone
          I’m a man of the land, I’m into discipline
          Got a Bible in my hand and a beard on my chin
          But if I finish all of my chores, and you finish thine
          Then tonight we’re gonna party like it’s 1699

          We been spending most our lives
          Living in an Amish paradise
          I’ve churned butter once or twice
          Living in an Amish paradise
          It’s hard work and sacrifice
          Living in an Amish paradise
          We sell quilts at discount price
          Living in an Amish paradise

          A local boy kicked me in the butt last week
          I just smiled at him and turned the other cheek
          I really don’t care, in fact I wish him well
          ‘Cause I’ll be laughing my head off when he’s burning in Hell
          But I ain’t never punched a tourist even if he deserved it
          An Amish with a ‘tude? You know that’s unheard of
          I never wear buttons but I got a cool hat
          And my homies agree, I really look good in black, fool
          If you come to visit, you’ll be bored to tears
          We haven’t even paid the phone bill in 300 years
          But we ain’t really quaint, so please don’t point and stare
          We’re just technologically impaired

          There’s no phone, no lights, no motorcars
          Not a single luxury
          Like Robinson Crusoe
          It’s as primitive as can be

          We been spending most our lives
          Living in an Amish paradise
          We’re just plain and simple guys
          Living in an Amish paradise
          There’s no time for sin and vice
          Living in an Amish paradise
          We don’t fight, we all play nice
          Living in an Amish paradise

          Hitchin’ up the buggy, churning lots of butter
          Raised a barn on Monday, soon I’ll raise another
          Think you’re really righteous? Think you’re pure in heart?
          Well, I know I’m a million times as humble as thou art
          I’m the pious guy the little Amlettes wanna be like
          On my knees day and night scoring points for the afterlife
          So don’t be vain and don’t be whiny
          Or else, my brother, I might have to get medieval on your heinie

          We been spending most our lives
          Living in an Amish paradise
          We’re all crazy Mennonites
          Living in an Amish paradise
          There’s no cops and traffic lights
          Living in an Amish paradise
          But you’d probably think it bites
          Living in an Amish paradise

          (Oooooh Ooooooh…yech!)

          If you don’t like it sher environmentally dispose of your plastic computer and phone and stop winding yourself up with this modern generation lot…

          • Hmmm Oh Dear, Oh Dear, Oh Dear, “Weird” Al Yankovic – Amish Paradise, Parody of “Gangsta’s Paradise”? That about places that little tirade where it belongs doesnt it? The gutter is where it belongs, all that poetry and songs in the world and you choose this little vicious hatred rant?

            Kishy, or should we call you Weird Al YankaKish now? You could have posted something clever and witty, i would have supported that, but that was a forlorn hope wasnt it? This frankly insulting tirade against the highly religious Amish, just because they dont use your industries fossil fuel is simply bitter and hateful and insulting, not to mention religiously intolerant of a devout minority.

            Surely you cannot think this is even a remotely acceptable hatred tirade?

            Have you ever met any Amish, Mennonites or plain people as they call themselves? I have due to a friends invitation, and once you get to know them, then you will find out they are the kindest most gentle and generous people you will hope to find anywhere.

            It takes a while, their young are quite free to investigate the materialistic lack of culture around them, usually they choose the Amish way of life once they discover how empty and destructive the materialist hedonistic way of life is,

            Some dont and choose the materialist world, and they are free to do so, there are no penalties, and they will be welcomed back if they change their minds and that also happens. They believe in freedom of choice and that way, every person knows what the sort of world that they are turning their back upon.

            Apparently you would not reciprocate their generosity and would call into derision their chosen way of life just because it disagrees with your dictatorial bias?

            They are very suspicious of people, we can all see why with that hateful little “song” you offend us with here. They have enough problems with intolerance without you fomenting more.

            But apparently that would not suit your weaponised derogatory narrative would it?

            Once more all you display here is that you are fundamentally intolerant in a worryingly historic fashion and desperate to dictate what energy and items people use in some sort of dictatorial totalitarianism control freakery and life style intolerance for those who choose another way.

            People must be free to choose, dont you understand that? What, or who, gives you the right to dictate what anyone does? Anyone at all? No one here dictates to you, only that we be allowed to have the freedom to choose what happens in our communities and country, without being dictated to by totalitarian invaders, just as we have done before, something you apparently do not understand?

            The industry you support intends to enforce its presence on us in spite of our objection to it, and now you seek to dictate to us what we use and where we use it and when we use it though doesnt it? Funny that?

            We have discussed this before Weird Al, you clearly do not understand irony and freedom of choice and action any more than you respect religious and life style minorities? We are free to do what we wish with anything we wish within reason, and we will not be dictated to by you, who appear to have no reason but personal agenda.

            No one is forcing you to stop using oil and gas, but it is destroying the worlds climate, and so it must be turned around before it is too late to do so.

            Many of know now that this fracking debacle wants to dictate to them what they do or do not do, or say and do not say, just because of some fear based bias towards the plunging credibility of the oil and gas industry, the alternatives will be put in place whether you want it or not, sorry about that but change is happening right now, you cannot stop it now.

            Very unpleasant Weird Al YankaKish, what a sad wasted effort that could have been witty and appropriate, it isnt.

            Whatever you intended to say here, became drowned in its own hatred and intolerance, Way to go.

            • To be honest Phil I couldn’t be bothered to read your sermon but it seems it could very well fit your lifestyle and many of the keep it in the ground folks. So set up something similar here and turn your back on the fossil fuels you hate. Must burn your fingers tapping plastic for all that time to get your speech over.

              I have noticed since the daylight passed some hours ago that sher hasn’t replied, feels like we’re keeping them in the dark… They’ll have a few hours of daylight tomorrow to reply once the Chinese plastic panels bring them back to this Century I’m sure…

            • Read it, you might learn something about tolerance, or as you display, the total absence of it.

              Do not attempt to dictate to anyone, you bring your favoured industry into yet more disrepute, if that was possible.

            • Tolerance is spending months and years away from my family so people in the U.K can have heating and electricity at the flick of a switch.

              There is no dictation that anybody must use fossil fuels but funnily enough people seem to stay alive by using it.

              I believe dictation is your method trying to force fantasy energy scenarios on people that would end up killing them either by fuel poverty or a feeble security of supply leading to lights off or political submission…

            • Do you really see nothing outside of that narrow blinkered dictatorial bias Weird Al?

              Renewable alternatives will take care of that, and now the skids are under the fossil fuel fool stranglehold, the entire world is changing around you and you cannot see it. Or dont want to see it. You have such a narrow blinkered view Weird Al, try expanding your horizons for once, no one hates fossil fuels, they just have outlived their usefulness is all.

              Hang on to your illusions that everyone hates it if it suits your bias. Change is coming, you cannot stop it now. And not before time either.

            • 45 minutes and all you’ve come up with is hate?

              I work in the gas and renewables industry and change is embraced faster than you think, reality on the other hand is keeping the lights on and the heat for that matter.

              I agree change is coming, the U.K will develop its shale gas industry and the U.K will benefit hugely from it turning away from expensive GHG imports and under strict regulation produce what the Country needs.

              I do find it depressing that coming from people not in the renewable industry think they can make wind turbines produce energy whenever they want or stop them when there is too much for that matter. Nature cannot be controlled but people still want to turn on their central heating when required or their lights on. This obsession people have with predicting the future where renewable energy will displace everything is fantasy. The one truth that you will agree with me is that this Xmas day your Turkey will not not have a gold standard guarantee it will be cooked using renewable energy and in a hundred years from now we will not be able to control the wind to turn those turbines either.

              What energy source is cooking your Turkey on Tuesday?

              Stick with me and Gas will 100% cook your Turkey, gas or electric oven

              Or

              Go with intermittent renewables, cold Turkey???

            • No Weird Al, after a lifetime, all you have learned is hatred and intolerance of others and their freedom of choice to continue their own chosen lifestyle without being dictated to by private profit motives. And yet you seek to impose your private life choice bias upon everyone else even when we say “NO”.

              What happened to Good Will To All Men, Women And Children?

          • I think the word you are looking for is renewable, ‘Mr Callcentre’…

            ‘Tolerance is spending months and years away from my family so people in the U.K can have heating and electricity at the flick of a switch.’ – is this really tolerance?

            Perhaps your ‘career’ is more important? The anxiety of potential loss is apparent. Take a breath Kishy. Square breathing helps.

            So Kishy, you believe you are the saviour of the world? Humbug

            And are you advocating this?
            Walk to your allotment for your food, no meat.
            Work local, don’t travel unless on foot.
            Teach your children the same values

            ….a little different to my suggestion; not too real from a pretend ‘realist’ but if you want to follow this lifestyle, each to their own.

            For everyone else, unless you are of a certain persuasion, there is no need to become extreme. Look at your life style and expectations, work with what you have to reduce your carbon footprint; remember it’s your future – if you want one?

            Merry Christmas everyone; am avoiding these negative PR spinners for Xmas; aim to have fun and plenty of smiles 🙂 🙂 🙂

            Thank you Ruth and Paul for a great year of reporting and for all those who have contributed; it’s been a laugh a minute.

            See y’all next year!

            • Hear Hear Sherwulfe, see you in 2019 and I second the thanks to Ruth and Paul and all the contributors at Drill or Drop and to the best of all futures for everyone, everywhere.

  5. Bizarre..

    “The group said new scientific developments cast doubts on the government’s case that onshore shale gas had a lower carbon footprint than imported liquid natural gas.”

    I find it very difficult to believe that imported LNG, which may be harvested in Qatar or the USA, frozen to minus 150degrees C then tankered across the ocean and unfrozen in the U.K. is greener than gas harvested in the U.K. and pipped 400 metres to a main U.K. gas pipeline. Can anyone explain how “the group” came to their conclusions.

    • “Absurd argument … Add several hundred wells (and eventually several thousand) over a lattice of 2×4 mile blocks along with interconnected pipes, pumps, scrubbing technology and condenser systems and you’ll be getting more realistic for comparison purposes. Fracking isn’t just about sticking a big straw in the ground and turning on the tap. Also, your single well is largely spent within three years.”

      N.B. Copied, sub’d and pasted from exactly the same argument further up the thread (for those who haven’t bothered reading the discussion).

  6. Posted on behalf of John Buckoke

    I read with interest and pleasure your success in court around Climate Change, and councils being allowed to reject fracking based on environmental damage.

    Could the same argument in reverse be used to override the Tories nasty little piece of legislation that makes it impossible to build onshore wind by requiring local “consensus”. Climate Change is a Global issue, and building onshore wind farms cuts emissions and cleans our air.

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