Campaign groups outside Cheshire West and Chester Council when the IGas application for Ellesmere Port was decided. Photo: Frack Free Upton, 25/1/2018

This post has news updates from the eleventh day of the inquiry into IGas plans to test its well at Ellesmere Port in Cheshire.

Cheshire West and Chester Council’s barrister, Robert Griffiths QC (left) made his closing statement at today’s session. IGas is expected to make its closing statement tomorrow (6 March 2019). You can catch up on news from other sessions of the inquiry here.

Closing submissions on behalf of Cheshire West and Chester Council

Key points

Key points made by Cheshire West and Chester Council

• The planning system should recognise the threat of climate change by refusing to grant permission for the IGas flow test
• Granting an environmental permit does not find that a scheme is sustainable development or does not have an adverse impact on climate change
• Key issue is whether flaring would have a significantly adverse effect on climate change, regardless of whether it is a best available technique
• The environmental permit was granted on a false premise and mitigation was based on an underestimate of greenhouse gas emissions
• This is a major deficiency in the IGas case
• IGas ignored that protection of the environment from climate change is in the national interest
• The inquiry has to grapple with contradictions between the warmings of environmental scientists and the actions of politicians
• The importance on the Paris Agreement on climate change cannot be underestimated
• Public concerns are material considerations
• The government does not support shale gas development unless there is robust regulation and decarbonisation
• The planning system should apply the precautionary principle and ensure that it does not contribute to the demise of the planet

Climate change crisis

Mr Griffiths tells the inquiry a report by the Institute for Public Policy Research, published last month, described climate change as “a crisis facing up to the age of environmental breakdown”. It warns that on current emissions trends, 1.5C of warming is likely to be reached in 2020.

The report emphasises the urgent need to react to human-induced environmental change, he says.

It says a failure urgently to address this problem will result in ”economic instability, large-scale involuntary migration, conflict, famine and the potential collapse of social and economic systems”.

Mr Griffiths says:

“It is our central submission that the planning system, applying normal land use principles, should recognise this threat by refusing to grant planning permission for the proposed exploration for shale gas development.”

Key issues for the inquiry

IGas site at Ellesmere Port, 21 January 2019. Photo: DrillOrDrop

Mr Griffiths says there are key issues for the inquiry to consider.

1. The extent to which, if at all, the council has to take into account the grant of an environmental permit to IGas
2. The relationship between central government policy and the policies of the adopted local plan.
3. Status of the Paris Agreement on climate change
4. Relevance of local public opinion in decision-making.

Environmental permits

Mr Griffiths says an environmental permit for flaring emissions, granted to IGas is wholly different from a grant of planning permission.

The policy used by the council to refuse planning permission  – Strat 1, requires the council to be satisfied that proposals support sustainable development principles and mitigate and adapt to the effects of climate change.

Mr Griffiths tells the inquiry the grant of an environmental permit:

“does not amount to a finding that the conversion of methane into carbon dioxide as part of the process of exploration is sustainable development and does not adversely have an impact on climate change.”

He says the remit of the Environment Agency is limited to the release of pollutants controlled in relevant directives and regulations.

Neither the Directive nor the Regulations have laid down specific standards as to the level of emissions compatible with climate change. These are matters solely vested in the Local Planning Authority which has to exercise its judgement in accordance with the Development Plan and all other material considerations which it regards as germane to the planning application before it.

Case law shows that pollution control and the grant of a permit does not mean that the use of land is acceptable in any given situation, he says.

Mr Griffiths says IGas has put forward no scientific evidence to rebut the council’s witnesses on climate change.

He says IGas “completely misunderstood” that the use of Best Available Technique, accepted by the Environment Agency, for flaring gas during flow test, was “not the yardstick of what is acceptable in planning terms. He says:

The issue is not whether flaring was Best Available Technique but on whether methane emissions into the atmosphere would have a significantly adverse effect on climate change.

Mr Griffiths says methane emissions, when converted to CO2 by flaring will have a “deleterious effect on climate change”.

He says it is a “highly material fact” that the Environment Agency had incorrect information on emissions levels generated by the development.

IGas says it would go back to the Environment Agency to correct the error. But this is too late for the inquiry, Mr Griffiths says.

[This] “is obviously a recognition of a major deficiency in the Appellant’s case, especially bearing in mind the great weight it attached to the EA’s grant of the permit and its failure to object to the proposed development.”

The Environment Agency was working on the premise that emissions were low and could be discounted, Mr Griffiths says.

“The Environment Agency, therefore, granted an Environmental Permit on the basis of a false premise. This fact is at the heart of the Council’s case. If it were not for the evidence of Dr Balcombe and Dr Broderick, this Inquiry would have been proceeding on the basis of that same false premise.”

The mistake was revealed only the council’s two scientific witnesses and only acknowledged by IGas in a document dated 22 February, after the inquiry had opened.

Dr Paul Balcombe. Photo: DrillOrDrop

Dr Balcombe, one of the council’s climate change witnesses concluded:

“It remains clear that the climate impacts associated with well testing are materially large, as well as being highly uncertain. The differences between emissions estimated by IGas in the environmental risk assessment and those presented here is also large and shows that emissions have up to now been mistakenly underestimated.”

Emissions previously unaccounted for ranged from 0.7-5.4 kilo tonnes of carbon dioxide equivalent (kt co2eq). This equated to a single modern car driving to the moon and back 58 times.

Total emissions from the IGas scheme were estimated at 4-10.8kt co2eq using a global warming potential factor of 36 and 6.1-21.3 using a factor of 87, Mr Griffiths says.

This ranged from 1-2% of annual regional industrial emissions or adding 7,100-13,000 new cars on the road per year.

Emissions would be not just from flaring but from fugitive leaks and from vents, Mr Griffiths says.

He says IGas used a global warming potential figure that was out of date and had since been increased.

Mr Griffiths says work done for the inquiry by Dr Balcombe and Dr Broderick was valuable to the international gas industry, not just the inquiry.

For the inquiry, he says:

“it shows that the Environment Agency, acting pursuant to a flawed Environmental Risk Assessment by the Appellant, failed to take into account highly relevant material as to the likely extent of emissions attributable to the proposed development”.

Mr Griffiths says evidence called by IGas was “of no scientific or probative value at all.

The company’s operations witness, Jonathan Foster, worked on the premise that emissions from exploration were “generally small”.

“What was appropriate and practical [for mitigation] was assessed by reference to the characterisation of emissions from exploration being ‘small.’

“Neither the Appellant nor the Environment Agency had ever assessed the necessary mitigation techniques and the practicality of those techniques available against a backcloth of the emissions being high and uncertain.”

IGas said the council’s reason for refusal was “wholly inconsistent” with the Environment Agency’s granting of a permit.

But Mr Griffiths says the EA and council officers were proceeding on a false premise – that emissions were low.

“The Officers and Environment Agency were not appraised of the relevant scientific facts and were not aware of the discrepancy between assumption and actuality as to the exploration stage in terms of emissions.”

Government support for shale gas

IGas witness, David Adams, giving evidence to the Ellesmere Port inquiry, 27 February 2019. Photo: DrillOrDrop

IGas’s planning witness argued that government support for shale gas meant that great weight should be given to its benefits and the land use planning consequences should be accepted.

Mr Griffiths, for Cheshire West and Chester Council, says it does not follow that the land use planning consequences of shale gas are acceptable because the government supports the industry.

He says:

“there should be a balancing exercise which balances and weighs various considerations against other considerations.”

Some considerations are given great weight and others are material.

Mr Griffiths says the inquiry has to look at the “relationship between two potentially conflicting matters of national importance.

He says:

[IGas] “attaches overriding weight to shale gas development on the basis that national policy supports it and the planning consequences of it have to be accepted and are not a good reason for refusal.”

But he adds that the company :

“ignores the fact that the protection of the environment from climate change is itself a national interest.”

Mr Griffiths says the PPR report identified “a contradiction between the warnings of environmental scientists and the actions of politicians”.

“It is that apparent contradiction with which this Public Inquiry has to grapple. It is not eradicated by regarding Government Policy on shale gas development as the indicator of the Government’s policy on climate change.”

Paris Agreement on climate change

Mr Griffiths says the Climate Change Act 2008 specifically incorporates matters to be taken into account, including circumstances at European and international level.

That should include the Paris Agreement, he says.

“The Paris Agreement is a legal instrument whose provisions are legally binding on the UK Government it having been as a treaty in November 2016.

“It creates legal norms within the community of its signatories and binding as norms in domestic circumstances on ratification by the Government.”

The Paris Agreement recognises need for an effective and progressive response to the urgent threat of climate change on the basis of the “best available scientific knowledge”, Mr Griffiths says.

“The importance of the Paris Agreement cannot be underestimated.”

Public opinion and acceptability of shale gas

Opponents of IGas’s well test plans outside Chester Town Hall, 15 January 2019. Photo: Frack Free Dee

Mr Griffiths say the European directive 2008/1 on pollution control also emphasises public participation in decision-making.

He says

“We see no reason to limit that right of effective public participation to pollutant emissions and not to apply it to the opinions and concerns of the opinion of the public in relation to climate change.

“In other words, the concerns of the public are material considerations.”

Mr Griffiths says government statements on shale gas refer to its potential as an economic driver, but also state that its environmental impacts must be robustly regulated. He says:

“The Council’s case is that currently the best available techniques (BAT) still do not reduce the methane levels to an acceptable level in climate change terms and the residual impact after complying with the existing regulatory regime is not low but high.”

He says IGas’s case that carbon emissions are inevitable during shale gas exploration is “entirely inconsistent” with government policy statements.

Ministers said government needed to work with responsible companies to “ensure that our planning and regulatory systems work appropriately whilst assisting local Councils in making informed and appropriate planning decisions”, Mr Griffiths says.

He does not dispute that shale gas development is of national importance. But he says:

“that does not justify the submission that, because it is of national importance, the Government is deemed to accept that the implications for climate change are given lesser weight in the balancing exercise and are trumped by shale gas development.”

He argues that government is making it clear that shale gas development should not go ahead irrespective of its impact on the environment.

Conclusions: “shale gas must not contribute to the demise of our planet”

Mr Griffiths, for the council, says the appeal should be dismissed because the scheme does not provide climate change mitigation relating to the legally binding obligations of the Paris Agreement.

It should also be dismissed because the mitigation proposed by IGas fails to use technology to reduce carbon emissions to an acceptable level in planning terms.

He says:

“Planning Authorities should apply the precautionary principle to the control of development of this kind. There is no legitimate justification for not acting in this way. There is nothing inconsistent with that proposition in Government policy or the development plan.”

He concludes that IGas’s case rests on “a fundamentally flawed argument, the premise of which is that Government policy supports shale gas development, the necessary regulatory permits are in place, and that concludes its case”.

“That is simply wrong. Government policy does not support shale gas development unless there is a robust regulatory regime in place and the technology exists to decarbonise this energy supply and prolong its role in the energy mix.

“On the basis of the evidence before this Inquiry those condition precedents for shale gas development have not been satisfied.”

He says this may change in the future. But he adds:

“we should be vigilant as a society and so should the planning system, to ensure that in pursuit of that goal we do not end up contributing to the demise of our planet. If that is an alarmist submission then so be it.”

Closing submissions on behalf of Cheshire West and Chester Council

• The inquiry ends tomorrow (6 March 2019) with the closing submissions from IGas’s barrister, Giles Cannock. The final hearing at Chester Town Hall begins at 10am