Ineos loses legal challenge on fracking ‘ban’ in Scotland

Ineos and Aberdeen firm ReachCSG took Scottish ministers to court seeking a judicial review of their decision to convert a moratorium on the controversial gas extraction technique into an indefinite, effective ban.

They had asked the Court of Session to declare that Scottish ministers acted unlawfully in doing so, arguing they exceeded their powers and lacked the legal competence to impose such a ban.

However during the hearing in May, the Scottish Government lawyer suggested ministers had simply announced a preferred stance on the matter and the policy-making process on the issue should be allowed to continue.

In his ruling, published on Tuesday, Lord Pentland found that, as a matter of law, there is no prohibition against fracking in Scotland.

He said the Ineos stance was based on a “series of fundamental misunderstandings of the Scottish Government’s position” and refused the challenge.

Lord Pentland 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.”

He said at present there is an “emerging and unfinalised planning policy” expressing no support on the part of the Scottish Government for the development or extraction of Unconventional Oil and Gas (UOG) in Scotland.

Summing up his decision, he said: “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.”

The Scottish Government welcomed the court’s decision.

Business Minister Paul Wheelhouse said the Scottish Government’s preferred position is not to support UOG in Scotland and a Strategic Environmental Assessment and Business and Regulatory Impact Assessment will be carried out and considered before any position is finalised.

He said: “The practical effect of the current moratorium and the policy making process which is underway to finalise our position is that no fracking can take place in Scotland at this time.”

Tom Pickering, Ineos Shale operations director, said: “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.

“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.”

Friends of the Earth Scotland said they were “delighted” at the ruling while Mark Ruskell MSP, the Scottish Greens’ energy spokesman, said it would be “welcome relief for communities throughout Scotland”.