PETROCHEMICAL giants Ineos will look to test Scotland’s current stance on fracking in the planning process -after seeing their appeal against the current moratorium booted into touch by the courts.
And it looks like they will receive the full support of Ruth Davidson’s Scottish Tory party – despite overwhelming opposition to the energy bid.
But the Scottish Government and supporters say they will now look to study what their final position on the controversial process will be in statute, having already voiced their support for an all-out future ban.
Today at the Court of Session, Lord Pentland said the six areas of interest raised by Ineos and fellow energy firm Reach CSG were “unfounded”.
He said: “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.
“The stance of the Scottish Government before the court is that there is no legally enforceable prohibition.
“For the reasons set out in this judgment, I consider that the Government’s legal position is soundly based and that there is indeed no prohibition against fracking in force at the present time.
“What exists at present is an emerging and unfinalized planning policy expressing no support on the part of the Scottish Government for the development or extraction of UOG in Scotland.
“The process of policy development is not yet complete; the important stages of a strategic environmental assessment and a business and regulatory impact assessment have still to be carried out.
“There is no basis on which the court should interfere with those procedures; the petitioners will have a full opportunity to contribute to and participate in them.
“I conclude that since there is no prohibition against fracking, the petitioners’ case is unfounded; their application for judicial review of the alleged ban must accordingly fail.”
Welcoming the Court’s decision, the Minister for Business, Energy and Innovation Paul Wheelhouse said the process had added to the concerns of constituents worried about fracking happening in their area.
He said: “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.”
Ineos says it has invested ‘millions’ into its Scottish operations as part of a UK wide strategy it expected to roll out as part of its growth plans.
The form said it did this based on indicators from the Scottish Government that it would be able to develop this side of their business.
And it accuses the SNP administration of, effectively, changing its mind in the face of aggressive campaigning by influential environmental bodies.
Tom Pickering , Operations Director INEOS Shale, was damning in his view of how the Scottish Government has acted – and chose to present the result as being a positive for the firm.
He said: “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.”
“With an environmental assessment and business and regulatory assessments still to be carried out, there may never be a fracking ban in Scotland.
“INEOS calls on the Scottish Government to honour the commitments it made in court that it will now undertake a proper consideration of all the issues surrounding shale. In the meantime it is expected that all planning applications will be considered on their own merits.
“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.”
He added: “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.”
His sentiments were echoed by the Scottish Conservatives who accused the SNP of ‘misleading’ business.
Alexander Burnett, the party’s energy spokesman, claimed that last year alone ministers said fracking was banned on at least 10 occasions.
He even quoted Ms Sturgeon saying: “Those who, like me, do not believe that fracking should go ahead in Scotland should welcome the fact that fracking in Scotland is banned.”
Mr Burnett said: “The SNP has spent the last year deliberately misleading not only businesses who want to invest millions in Scotland, but communities too.
“From the First Minister down it has claimed fracking is banned – no ifs, no buts. But now the SNP government has succeeded in a court case on precisely the opposite argument – that there is no ban in place.
“The sheer incompetency involved from the nationalist government is embarrassing for the country as a whole.”
But SNP MSP for Falkirk East Angus MacDonald said: “The Scottish Government’s actions won the backing of the Scottish Parliament – and today’s ruling completely supports the steps taken by both.
“Following this decision there is no change to policy on fracking in Scotland and communities can rest easy that permission is not about to be given for fracking near their homes.
“The Scottish Government is rightly making sure that future policy is robust and can be defended against any further legal challenges.
“Meanwhile in England, the Tories are intent on fracking underneath people’s homes, in the face of considerable public opposition, without any concern for the impact on people’s health, the environment or their communities.
“The SNP has taken a cautious, evidence-led approach to this issue, and that has been upheld as the right approach by the court today.”
The action also included Friends of the Earth Scotland who made legal history by being allowed to make a ‘public intervention in the case.
Friends of the Earth Scotland Head of Campaigns Mary Church 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.”
Balfour+Manson solicitor Sindi Mules said: “Balfour & Manson were pleased to act for Friends of the Earth in their intervention and would be happy to continue to support as the process develops.”
Leigh Day Solicitor Carol Day added. “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.”
John Bynorth, Environmental Protection Scotland Policy and Communications Officer, said: “This judgement has brought clarity to the status of the Government’s indefinite moratorium on hydraulic fracturing, popularly known as fracking.
“Despite some ministerial statements which did not accurately reflect the situation, we now know that the Scottish Government’s position on this controversial method of extracting gas from underground is still being finalised.
“EPS supports the continuing needs for a strategic environmental assessment to be completed before the policy is finalised and adopted and look forward to seeing the finalised policy.
“We previously welcomed the Energy Secretary’s statements on the moratorium continuing indefinitely as it gave reassurances that our environment will be protected. The exploration of onshore oil and gas would create potential noise nuisance, land contamination, water pollution and air quality issues for local communities.
“EPS has always supported the drive for renewable energy targets and reductions in greenhouse gas emissions and in addition to today’s judgement we would encourage the Scottish Government to work towards achieving a cleaner, quieter, healthier and more sustainable environment.”
Ineos warned previously Scotland would pay a heavy price for any block on their operation via jobs and the economy.
WANT TO LEAR MORE? Read: OPINION OF LORD PENTLAND In the petition INEOS UPSTREAM LIMITED and another Petitioners and FRIENDS OF THE EARTH SCOTLAND Interveners against THE LORD ADVOCATE
IMAGE CREDITS: cc Kolibri