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Breaking: Campaigners win court challenge over government support for fracking

181218 Talk Fracking protest UWOC

Nativity-style protest by Dame Vivienne Westwood and son Joe Corre outside the Royal Courts of Justice, 18 December 2018. Photo: Used with the owner’s consent

The campaign group, Talk Fracking, has won a challenge against government support in planning policy for fracking.

A High Court judge, Mr Justice Dove, allowed a judicial review in a case over the climate impacts of shale gas developments.

In a separate ruling, he rejected arguments put by Friends of the Earth on the environmental impacts of planning policy.

Talk Fracking member, Claire Stephenson, argued during a hearing in December 2018 that the government acted unlawfully in incorporating support for shale gas into a revised version of the National Planning Policy Framework (NNPF).

The new document was published in July 2018 on the final day of the parliamentary session.

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

The 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.

Talk Fracking said the government should have considered new evidence submitted to a public consultation which challenged the policy. Ministers acted unlawfully, the group said, because they failed to consider the Mobbs Report.

This countered the science behind a Written Ministerial Statement, supporting shale gas, which was added to the NPPF. The Written Ministerial Statement itself was based on a review commissioned by the government from David Mackay and Timothy Stone.

Mr Justice Dove said adopting Paragraph 209a into the NPPF was unlawful because the government had failed to take into account the scientific developments over low-carbon claims. He also said the government failed to carry out a lawful public consultation on the revision of the policy.

In the past hour, the judge said:

“the consultation on the draft revised Framework 204a was so flawed in its design and processes as to be unlawful.”

He said it breached the Sedley principles which set out the requirements for a full and lawful consultation exercise.

Judge Dove said evidence provided by Talk Fracking, which included the Mobbs Report, was material that was:

“capable of having a direct bearing upon a key element of the evidence base for the proposed policy and its relationship to climate change effects”.

The judge said:

“What appears clear on the evidence is that the material from Talk Fracking, and in particular and scientific evidence as described in their consultation response, was never in fact considered relevant or taken into account, although … this material was relevant to the decision which was advertised.”

He said the secretary of state had not considered “obviously material considerations relevant to the decision which he had led the public to believe he was taking”.

The judge concluded:

“It was unlawful to leave that material out of account”

He dismissed Talk Fracking’s claim that the government unlawfully failed to explain the impact of the revision of the NPPF to government obligations to reduce carbon emissions under the 2008 Climate Change Act.

He also dismissed the argument that a Strategic Environmental Assessment was required by law.

The judge said he would allow Talk Fracking and the government time to consider the implications of the ruling and to make further submissions.

The implications of this case are to be considered in a public inquiry on the IGas shale gas site at Ellesmere Port in Cheshire. A key argument at the inquiry had been the impact of well testing on greenhouse gas emissions. Barristers at the inquiry, which ended today, are to make submissions about the relevance of today’s ruling.

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Claire Stephenson, who brought the challenge, said:

“We are delighted that the court has agreed in part with our arguments that the government’s policy on fracking is unlawful.

“The government have continually sought to ignore public opinion on fracking, despite the overwhelming opposition on a national level.

“The lack of public consultation and the biased support for an industry, without any substantial underlying evidence, has been a cause for concern.

“The additional acknowledgment from the Judge, that climate change is a valid concern for campaigners and councils facing fracking planning applications, is a big win.”

Joe Corré, of Talk Fracking, said:

“It’s fantastic news to be victorious this morning.

“I’m very pleased that the Court has clarified both that the Government has behaved irresponsibly and recklessly with our democratic rulebook.

“Their pretend consultation was a farce. Their Written Ministerial statement was a lie. This has now been exposed by us taking them to the Royal Courts of Justice.

“It has now also become clear, with guidance from the Court, that objections to fracking on the basis of its climate change impacts must be considered at a local planning level”.

Rowan Smith, solicitor from Leigh Day representing Talk Fracking, said:

“What is clear from this judgment is that the Government has to keep climate change science under review when formulating fracking policies in an open and transparent way.

“The 2015 statement that fracking supports a low-carbon economy was never consulted upon, and the Judge was critical of the way the Government, during last year’s consultation exercise, tried to shoehorn that statement into national policy whilst brushing off public objections to the basis for doing so.

“It is clear what the Government must now do, namely hold a full review of its policy support for fracking, after a meaningful public consultation and properly considering the scientific developments Talk Fracking presented and all other related material.”

A spokesperson for the Ministry of Housing, Communities and Local Government said:

“We note the judgment in the case brought by Talk Fracking, and will now consider our next steps.”

Arguments in the case

In December 2018, the court heard evidence from a senior civil servant, Dr Michael Bingham, that 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.

But Dr Wolfe, for Talk Fracking, said:

[the government] were not interested in anything that countered the case they were restating of a long standing policy. That completely undermined the consultation.”

“The Secretary of State had asked for (and indeed encouraged) views: he needed to consider them properly, particularly when they were scientifically based and properly explained.

“It was no answer to put it in the “too hard” pile, without even looking at it.”

Rupert Warren QC, barrister for the local government secretary, said English local councils could reject national policy on fracking if they had evidence that the process contributed to climate change.

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

Mr Warren described the section on shale gas in the revised NPPF as a “cut and paste exercise”, simply copying over policy from the previous written ministerial statement. He said the secretary of state was not obliged to take account of everything said by the public during a consultation.

Mr Warren denied the government was “clinging to an outdated policy”.

”This is not the case here. Work is continuing.”

Government support for shale gas, expressed through the NPPF and the written ministerial statements, is regularly quoted by operators during discussions on planning applications and local plans. They say national policy should be given “great weight” in an decision by local councils. At the same time, opponents of onshore oil and gas have been told that their evidence on the likely climate change effects of fracking could not be considered.

Friends of the Earth case

In a separate challenge, Friends of the Earth argued that the revised NPPF was unlawful because the government should have reviewed the impacts on the environment.

Richard Kimblin QC, for Friends of the Earth, said the NPPF was covered by a European directive and regulations on environmental assessments of plans and programmes.

Mr Justice Dove dismissed this case.

He said:

“I am not satisfied that the Directive applies to the Framework.

“It is not a plan and programme since it does not fall within the definition provided by the Directive.”

He said the Friends of the Earth case was arguable but he was not satisfied of its “substantive merits”.

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Will Rundle, Friends of the Earth’s head of legal, said:

“We are disappointed with today’s judgment and will be considering an appeal.

“In ruling that this national planning policy can be developed without any environmental assessment at all, the Court has deprived communities of a meaningful say in how their local environment could be affected by new developments.

“The judgement has failed to apply developing case law, which we think makes it clear that national planning policy like this that has significant effects on the environment should be environmentally assessed in order to protect our environment.

“This also has worrying implications around democratic accountability for government, which can push through its planning policies without coming clean about what they mean for the world around us.”

A spokesperson for the Ministry of Housing, Communities and Local Government said:

“Environmental protections are at the heart of our new planning rulebook, setting clear expectations for future development.

“We are pleased that the judgment in the case brought by Friends of the Earth confirms that we do not need to reassess the rules.”

Background to the case

At that original hearing, Richard Kimblin QC, for Friends of the Earth, said there should have been a strategic environmental assessment and a public consultation on the revised NPPF. Without them, he said:

“the plan is adopted blind, and without the advantage of those consultation responses. There is no consideration of whether the plan could achieve the stated aims in a better way. If an SEA is undertaken, the plan may well be significantly different.”

He said some effects of the NPPF could be positive, some negative.

“It is not possible to say what the effects are, nor to gauge their significance, because that assessment has not been done.”

He said the NPPF was often the main decision-making tool when a local development plan has little to say about a proposal. And the NPPF trumped when the development plan was inconsistent with the NPPF. It was “of great importance to the environment in England and to its proper land use planning”.

The government dismissed these arguments. It said it was not a requirement that the NPPF must be met if planning permission were granted for a development.

Reporting from the hand down of the ruling and the court challenge was made possible by individual donations from DrillOrDrop readers

62 replies »

  1. A significant nail in the fracking coffin. As the U.K. is on track to miss the next statutory carbon reduction targets, as reducing emissions becomes harder as coal disappears completely, climate change and the implications it will have on development decisions will only increase. The government can no longer get away with making sweeping statements about the supposed benefits of fracking to climate change and dismiss and conceal their own reports because they don’t like the conclusion, instead they and any consultation they undertake will face the scrutiny this important matter deserves and will know that the public will use the courts if they don’t.

    • Congratulations to Joe Boyd and Joe Corre, sanity prevails at last, this ruling has extensive connotations to government policy and the overturning of planning decisions to reject operations where climate change consequences were ignored.
      We are living in interesting times.

      • And…
        Still not enough, but better than a kick in the fracking teeth…
        https://www.theguardian.com/environment/2019/mar/07/government-throws-its-weight-behind-offshore-wind-power-expansion

        Looks like the lady is for turning?
        ‘The energy and clean growth minister, Claire Perry, said: “This new sector deal will drive a surge in the clean, green offshore wind revolution that is powering homes and businesses across the UK, bringing investment into coastal communities and ensuring we maintain our position as global leaders in this growing sector.’
        ‘“By 2030 a third of our electricity will come from offshore wind, generating thousands of high-quality jobs across the UK, a strong UK supply chain and a fivefold increase in exports.”

  2. “Can afford to live in Monaco”!!??

    Interesting-thought he was looking to save money by living there.

    By the way, he formerly lived in the UK AND a number of other locations in other countries. He will add Monaco to those locations. Homes in different locations seen as a perk for wealthy owners of global businesses, but has its downsides as well.

    • Would that be frack-free Monaco? Ratcliffe did move back to the UK briefly – just long enough for the crooks running the Government to tear up planing and environmental controls on fracking for him and to give him a knighthood.

    • I presume those downsides includes avoiding about £4 billion of UK tax. That would have paid for a lot of important stuff. Strange how fracking will allegedly provide so much in future taxes – once the industry have finished offsetting costs and shipping any remaining cash to Monaco or Caymen Islands.

      • Yes, you do presume Mike. The claim is “could”. And has been ever since this story was first produced, based upon “sources”. These sources don’t even know what has happened to the dividends paid.

        I pay more tax than I have to. Perhaps if I decided not to there could be an investigation into whether I wanted to transfer funds into an income ISA or not. But, as I do not pay around £200m in tax into HMRC, I suspect it would not gather many headlines.

  3. Just wondering why Mobbs report should be given more weight than Mackay report.
    All the government need to do is read the Mobbs report and point out where it fits into the policy.

    • Objective facts. Science is data. Mobbs offers data. Where Mackay Stone offers data with a mass of caveats. at present NONE of those caveats look like being honoured (CCS?!), and we have new data on methane emissions . Its just facts to inform planning, before we retrospectively notice our Energy policy has NOT reduced GHG emissions..

  4. Wondering if there should be an immediate moratorium placed on all onshore fracking operations right now to prevent further Community and Environmental damage?
    Please?

  5. So someone who was arrested for trying to arrest the prime minister and whose views are always 100% anti industry biased, has consideration given to his paper? Odd.
    If there are so many methane leaks on gas production installations, why dont the N Sea rigs explode? They produce gas in very restricted plavces with no issues. Thats cos they control leaks and HSE are very strong on this.
    Could someone explain how producing our own gas under strict regulations is worse for the climate rather than importing LNG (which has a 20% loading due to the lost energy in gasification, transport and regasification). There are no leak paths except the wellhead, and any emissions should be very low. As for relying on the Howarth report, well that was shot to pieces years ago. In any case, the US has much worse regulation than the UK so any studies from there are not applicable in the UK.

    • LNG is a bit of a side issue. A fair proportion of that arrives in the UK only for trans-shipment while the majority of gas consumed here arrives by pipeline.

      • Incorrect PhilipP. Something that the antis have been telling us but not correct:

        Copied from another post yesterday:

        “Everything you need is in the spreadsheet ET4.3 John via the following link:

        https://www.gov.uk/government/statistics/gas-section-4-energy-trends

        The UK actually exported 83,000 GWhr of natural gas in 2018; of this 60% went to Belgium, 27% to Ireland and 10% to the Netherlands. We imported 524,000 GWhrs of natural gas of which 96,000 was LNG – a small amount of this was re-exported.”

        In 2018 we imported 96,000 GWhrs of LNG and exported only 1,870 GWhrs LNG. So most of the LNG imported was consumed. Of course we imported significantly more gas by pipeline than LNG as noted in the figures above.

        So Anon’s point is valid in that fugitive methane emissions would be reduced if the consumed imported LNG were to be replaced by UK gas, North Sea, onshore conventional or shale.

        • You fail to show a correction Paul. Your sums reinforce my statement that “the majority of gas consumed here arrives by pipeline.” i.e. 524000 GWH of which less than 20% is LNG. And I don’t think the ‘export’ of LNG is part of the trans-shipment figure. Your link shows an upswing in LNG imports for Q4 2018 of 20% but that is after a downturn of around on third in Q1 – Q3. Meanwhile as North Sea production is about to reverse fifteen years of decline and a new Trans-Anatolian pipeline comes on stream soon, so the demand for imported LNG will be reduced.

          Meanwhile Anon’s and your arguments about ‘anti industry’ critics are meaningless without context. That’s a bit like arguing that Hospitals are anti funeral industry or the road code and street signs are anti the accident and emergency industries.

          Also if Anon would like to reveal any credible sources debunking the Howarth/Duke/Ingraffea studies I would be very interested to read them (not industry sponsored PR/pseudoscience please) . Those studies have shown the problem of emissions from gas fields and related leaks from the overall production and transmission infrastructures, to be real, and serious, when it comes to adding greenhouse gases to the atmosphere.

          • “LNG is a bit of a side issue. A fair proportion of that arrives in the UK only for trans-shipment”

            “In 2018 we imported 96,000 GWhrs of LNG and exported only 1,870 GWhrs LNG. So most of the LNG imported was consumed. Of course we imported significantly more gas by pipeline than LNG as noted in the figures above.

            So Anon’s point is valid in that fugitive methane emissions would be reduced if the consumed imported LNG were to be replaced by UK gas, North Sea, onshore conventional or shale.”

            By the way – what do you think the fuhitive emissions and environmental impact of the ” new Trans-Anatolian pipeline ” are vs UK onshore gas, shale or not?

            In case you haven’t checked:

            “It concludes that the Southern Gas Corridor’s overall environmental impact would actually be as damaging as coal, largely because of fugitive emissions of uncombusted methane and other leaks.

            Such high-pressure pipelines are susceptible to leaks, the study says, and the methane that is released is a particularly potent greenhouse gas that is more damaging than CO2. The study looked at nine different scenarios for the pipeline, and in five of them, the share of unintended methane emissions in extraction and transmissions would be between 2.44 percent and 5.95 percent.

            The International Energy Agency has said that any gas project with more than three percent fugitive emissions can be doing climate damage than coal.

The study was conducted by researchers from the Observatori del Deute en la Globalització and the Polytechnic University of Catalonia.”

            https://www.forbes.com/sites/davekeating/2018/02/07/despite-climate-objections-new-southern-gas-corridor-gets-e1-5bn-in-eu-funds/#eb20fe5552ed

            https://bankwatch.org/press_release/eu-bank-downplayed-climate-risk-to-grant-recrord-loans-to-europe-s-largest-fossil-fuel-project

            • Transmission leaks will always be an issue. 3% (if correct) is unacceptably high but that is the reality of fracking and gas fields overall. At least if you’re not adding to the problem by creating more and more gas fields then that is what probably has to be endured while reserves get run down and more environmentally friendly sources take over. 2% can be achieved but then aging and neglected infrastructure pushes the value higher.
              At least the Azeri fields are reservoirs and not adding the other kinds of environmental impacts that are faced with surface-sprawling fracked well pads and gas infrastructure.

              • It’s to do with distance (and pressure). The longer the pipeline, the higher the leakage rate. The shorter the pipeline, the lower the leakage rate. Our demand is fixed; supply closer to home then emissions are lower. I thought this is what we wanted?

                Why you would prefer gas from a pipeline several thousand km long and LNG from Qatar etc to our own gas doesn’t make sense – unless you live near a potential UK gas field?

                • This ignores the fact of 1000s of wells, pumps, condensers storage and interconnected pipes, not to mention all the other surface impacts and waste disposal problems that add to the environmental concerns when fracking at scale in population-dense country.

    • “There are no leak paths except the wellhead, and any emissions should be very low.” Anon

      That’s the industry line of course, but they would say that wouldn’t they?

      Here’s another view; https://www.theccc.org.uk/wp-content/uploads/2016/07/Onshore-petroleum-evidence-submitted-by-Cowern-and-Russell-Jones.pdf

      “Methane emissions from shale gas production are much higher than from
      conventional production. They represent in the region of 8% of total shale
      production…….Not only will shale gas fail to reduce global warming, it
      will actually accelerate it.”

  6. Anon, the US’s “much worse regulation” doesn’t mean that anything supposedly slightly better is adequate, satisfactory or safe does it. Rhetorical question.

  7. Good job one of the antis understands that PhilipP!

    So, what you are saying is we import gas from multiple sources, whilst we sit on an untapped-and unknown- resource of our own. Pretty generous with our overseas aid-now sending tax to several of the wealthiest countries in the world.

    Ditto oil.

    Never mind, we can always borrow to fund education, police, social care etc. etc. Trouble is, all the banks I know (including Barclays) will set their interest payments according to risk. Oops.

    • Good luck with that ‘untapped and unknown’ resource Martin. Keep on raising hopes and living the dream while others point out the realities.

      • Are those the anti realities of 1000s of wells industrialising the countryside, PhilipP??

        Oops.

        Another one who thinks the written word disappears.

        Good job the majority are not so gullible.

        • 3,500 boreholes were planned for Cuadrillas Blackpool to Preston Licensed area. To quote Bob (one of yours) of a couple of days ago “The UK would be fortunate to have 40,000 wells (translating to perhaps 8,000 well pads), with an average of maybe 500-1000 producing at a single point in time.”

          Martin. You’re very slow to cotton on to how this industry has to scale to make gas output from shale work at a level that would make a significant contribution to UK’s energy overall. Tht’s not my problem. Nor can I help with all your Oops’s (incontinence?)

          • No, your problem is posting contradicting points from day to day. But, maybe there are more PhilipPs than we thought!

            So, which is it? 3500 wells or no significant gas?

            3500 wells would only start to be considered if significant economic gas was produced-in which case significant volumes of gas imported from (your) multiple sources could be replaced.

            So, lets find out.

            Oops.

            • Just pointing out the flaw in the dream. It’s going nowhere fast, causing unnecessary social impact, anxiety and a wasteful expenditure of resources. You know the public wont wear the full scale ‘reality’ and so does Paul Tresto. Face the facts and stop bulldozing the unwanted dream. The contradictions are in your position.

              • I thought Paul was indicating the Fylde might not see much larger scale development. I would share that particular view, but if tests in the Fylde are technically successful then I would still expect a roll out elsewhere, if technically and economically possible. Maybe I have missed Paul stating something different along the lines you claim.

    • Or we can invest more in new, greener industry and infrastructure, such as offshore wind, electric vehicles. Look at Hull and the jobs created there. We can export green technology and energy. The U.K. economy does not revolve around fracking.

      • Yes, good for Sir Jim with his recently announced investment.

        Why the “or”? How does Norway invest in alternatives?

        Little thing called a Sovereign Wealth Fund. Wonder where that came from?.

        • JR’s recent announced investment is just ‘plans’; am sure he is looking into grants right now to fund these ‘plans’ courtesy of the taxpayer of course….

  8. Anybody noticed the Peel Holdings announcement regarding a proposed Green Energy recycling plant on the Wirral?

  9. This only a partial victory for the anti frac campaigners. The ruling is based on a technicality. All the government has to do is summarise the Mobbs report & why they do not accept its conclusions. I also find it rather odd that a fashion celebrity is so concerned about shale gas when her own industry is incredibly guilty of pollution, emissions, resource waste, & very poor working conditions for many of its workers. Surely she should focus more on her own “glass house”, rather on another sector where she has no professional knowledge?

    • If you look into the recent campaigns by the fashion industry itself Nick, it is moving in the right direction and not only taking responsibility for the mess, but making big changes….something the oil and gas industry might like to emulate before it’s too late?

      You don’t need ‘professional knowledge’ to question a process that is clearly damaging to all life on earth…

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