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Pressure builds for a legal ban on fracking

This opinion piece is almost 4 years old

Mary Church says the ban on fracking remains a policy position that needs to become legislation

News that the first decision Scottish ministers have made using their new powers over onshore oil and gas licensing was to extend fracking license was met with some disbelief. The move only strengthens calls for government to legislate to ban fracking and draw a line under the issue for good.

The 400km2 license in the middle of the central belt is owned by energy giants Ineos and Reach CSG, who recently lost a judicial review against the Scottish Government's position on fracking. While it is unlikely the 12 month extension will allow the operators to do much in terms of advancing their shale gas ambitions, the terms of the license provided clear grounds to revoke it: despite having consents in place before the fracking moratorium was announced, and despite 2 previous extensions, the companies failed to fulfil drilling commitments.

The extension puts the Scottish Government in an extremely uncomfortable position given its outspoken opposition to fracking and the confusion caused by legal arguments put forward in the recent court case.

That case saw the government's lawyers argue that there was no legally enforceable ban in place, despite what energy minister Paul Wheelhouse told Parliament in October last year. The language of an 'effective ban' was, according to James Muir QC, nothing more than 'a gloss', or 'the language of a press release'. The judge agreed, finding that as there was no ban in place there was no case to answer, and threw the petition out.

The outcome was good news: Ineos wanted the court to quash the moratorium that had been in place since 2015 and was extended indefinitely in 2017. This would have opened the door to fracking. Lord Pentland refused to do so. He also found that even if a decision to ban fracking had been made, Ineos would be unlikely to be successful in any claim for compensation, in a helpful foray into the substance of the case.

But it also exposed the 'effective ban' on fracking for what it really is: a policy position that could be overturned by the stroke of a pen, with no recourse to parliament, by this or a future government.

While efforts to strengthen the indefinite moratorium by the anti-fracking parties in parliament last October saw Holyrood vote for a position of no support for fracking to be included in the next national planning framework (NPF), this would only mean parliament was alerted to a potential change in policy – as things stand, the NPF does not require Holyrood’s approval. A legislative approach on the other hand, would require the scrutiny and support of Parliament both to pass now, and to undo at some point in the future, should a future Government dare to try.

The government must come to a final decision on the question of fracking

The Scottish Government now has to progress with a Strategic Environmental Assessment (SEA) of the policy not to support fracking, something that was mentioned in October, but got somewhat lost in the noise. That process is underway and a consultation is expected imminently. It is unthinkable that an SEA could result in anything other than support for a ban on fracking, given the numerous environmental and health harms the industry brings with it.

Then the government must come to a final decision on the question of fracking – it is hardly likely that they will back away from a position of no support – and find a means to implement it.

Legislation is undoubtedly the strongest way to do that. It is what numerous countries, states and regions have done around the world, including France, Ireland, Victoria and Maryland. Legislation that has never been successfully challenged by the industry, including when it involved revoking existing licenses, as it must in Scotland.

With over 60,000 people voicing support for a ban, and with onshore oil and gas licensing now devolved to Holyrood, Ministers have both the power and the mandate to do so: they must use them to draw a line under the issue for good.

Mary Church is head of campaigns at Friends of the Earth Scotland



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