There is "no legally enforceable prohibition" on fracking in Scotland, and therefore nothing against which to direct a petition for judicial review by a company interested in carrying out the oil and gas extraction process, a Court of Session judge has ruled.
Lord Pentland gave his decision in refusing an application for judicial review by Ineos Upstream Ltd against the Lord Advocate, representing the Scottish ministers, regarding certain acts and decisions of the Scottish Government in implementation of what was purportedly an indefinite ban on “fracking”, or unconventional oil and gas extraction (UOG).
The baclground to the petition was a statement in January 2015 by Energy Minister Fergus Ewing to the Scottish Parliament that it would be inappropriate to allow any planning consents for such development pending consulatations and assessments, and announcing a “moratorium” on the granting of such consents, with a direction to that effect to all Scottish planning authorities and to SEPA. Following further research, the Minister for Business, Innovation and Energy, Paul Wheelhouse, made a statement to the Scottish Parliament on 3 October 2017 in which he confirmed the Scottish Government’s “preferred position”, that it would not support such development in Scotland and would use planning powers to deliver its position. The petitioners claimed that this action was sufficient to “effectively ban” UOG in Scotland, founding also on a statement by the First Minister to that effect.
However before the court, counsel for the Lord Advocate denied that the Government's position amounted to a ban, on a correct understanding of its acts and decisions.
Lord Pentland ruled that, as a matter of law, there was no prohibition against fracking in Scotland. Ministerial comments reflecting the opinion that there was an effective ban on fracking were (a) irrelevant to the legal question before the court; (b) not binding on the court; (c) in any event, not determinative of the question of construction that the court had to address; and (d) to the extent that they did not accurately express the legal effect of the decisions taken, had to be left out of account when answering the legal question.
He stated: "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 unfinalised 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."