Fracking debate moves to the courts

Just when you thought the fracking debate in Scotland was settled, the battlefield shifts to the courts.

Ineos Shale has applied for a judicial review of the Scottish Government’s decision to continue its moratorium, citing “serious concerns” about its legitimacy. They claim there was a ‘supportive regulatory and planning backdrop’, which frankly is a little difficult to identify. Unless there is more in those meetings with the First Minister than we have been told! Encouraging noises from the previous energy minister may not be enough to convince a court.

The Scottish government argues that it took a “careful and considered approach” while coming to the decision, with “detailed assessment of evidence”. They certainly took a long time and the public response to the consultation was overwhelming.

Judicial review is primarily about process, and on those grounds the Scottish Government approach looks pretty robust. However, it does reopen the debate about the merits of addressing this issue through legislation rather than through planning. Even if the Ineos legal challenge was successful that option remains open. I suspect the best that Ineos can hope for is to make the government jump through some more hoops.

As Keith Baker from Glasgow Caledonian University argues in today’s Herald, the studies show that the costs and risks far outweigh the largely short term economic benefits. He said, “If the Scottish Government is to meet its target of reducing national emissions of greenhouse gases by 80 per cent by 2050, it will need to achieve a significant reduction in the use of all fossil fuels over the next decade, so it is absolutely right to conclude that allowing unconventional extraction is a major step in the wrong direction, and to use its devolved responsibilities for planning to legislate against the development of fracking sites”.

He also argues that while safety is probably a secondary issue, the Precautionary Principle should still apply, given the damage even a low level of contamination could do to traditional industries like whisky.

The plan to frack in Scotland is primarily for industrial use, not as a contribution to energy supply and there are alternative sources of gas. The Scottish Government’s new energy strategy claims biogas and biomethane produced through Anaerobic Digestion (AD) will have a significant role in decarbonising Scotland’s energy system. Existing sites already produce enough gas to supply the equivalent of 85,000 homes.

Charlotte Morton, chief executive of Anaerobic Digestion and Bioresources Association (ADBA), said: “The Scottish government has set itself ambitious but necessary targets for generating renewable energy in its new Energy Strategy, and renewable heat and electricity produced through AD can make an important contribution to these goals, as well as reducing emissions from landfill, creating rural jobs, and helping to restore degraded soils. There are now over 50 operational AD plants spread across Scotland, recycling a range of wastes including animal slurries and manures, food waste, grass silage, sugar beet, and various grains and wheats from Scotland’s famous distilleries.”

I suspect Ineos will find that judicial review is costly, time consuming and rarely successful in Scotland. Particularly when challenging what was a lengthy and detail government process. The courts rightly recognise that difficult political decisions are for parliament, not the courts to decide.

Even if successful, it doesn’t mean fracking will be allowed, it will simply force government and parliament to adopt a different approach.



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