Public Aye Legal Challenge to Scottish Government 'Ban' on Fracking in Scotland
INEOS Shale (“Ineos”) has lodged a petition for judicial review of the Scottish Government’s decision to effectively ‘ban’ fracking, and other unconventional oil and gas development, in Scotland.
In January 2015, the Scottish Government put in place a moratorium on unconventional oil and gas development in Scotland while it commissioned research and undertook consultation on the potential impacts of such development. It gave effect to the moratorium by issuing a direction to all planning authorities requiring them to notify all applications for planning permission for unconventional oil and gas development to the Scottish Ministers, both on receipt and where the planning authority proposed to grant planning permission. The Scottish Ministers would then have the ability to call in the applications for their own determination.
In October 2017, Paul Wheelhouse, the Minister for Business, Innovation and Energy, made a statement to the Scottish Parliament confirming that the Scottish Government had reached a firm view on the matter of fracking in Scotland and announced that it would be not be supporting the development of unconventional oil and gas in Scotland. The announcement came after an extended period of public consultation.
In tandem with Mr Wheelhouse’s announcement, a letter from the Scottish Government’s Chief Planner was issued to all planning authorities. The letter confirmed that the previous direction in relation to unconventional oil and gas development would continue to have effect.
The regulatory regime covering the licensing of onshore oil and gas exploration is to be devolved by virtue of the Scotland Act 2016, but the relevant provisions are not yet in force. In the meantime, the Oil and Gas Authority has confirmed that it will not issue any new licences following a request to that effect from the Scottish Government to the UK Government. In light of its lack of powers in respect of the licensing regime, the Scottish Government intends to use its planning powers to prevent unconventional oil and gas development being undertaken in Scotland.
Ineos, which holds a number of onshore petroleum exploration and development licences (“PEDLs”) in Scotland, is challenging this decision on the basis that it was not competent for the Scottish Government to make the decision in the manner it did. It has also questioned the Scottish Government’s decision in light of the conclusions of the scientific experts commissioned by the Scottish Government; Ineos state that the experts concluded that shale development is capable of being managed safely.
The issue of unconventional oil and gas development, and fracking in particular, is clearly a politically sensitive topic in Scotland, with many communities, environmental NGOs, PEDL holders and other business interests all having strong views. With that context, the legal challenge by Ineos was not unexpected. The legal challenge itself is likely to raise important public law issues in relation to the appropriate ways to give effect to Government policies and the extent to which blanket policies can be adopted in administrative law decision making.
The challenge is expected to be heard in the Court of Session in the first half of this year, further extending a policy debate, and legal uncertainty, which has now been running formally for over three years.
