The legal appeal against the ‘fracking ban’ by INEOS – the petrochemicals giant that owns the Grangemouth refinery and which wants to carry out onshore oil and gas drilling in Scotland – has been rejected.
INEOS and fellow petrochemical firm Reach Coal Seam Ltd, which is based in Aberdeen, claimed that Scottish Energy Minister Paul Wheelhouse had acted illegally in announcing the ban in October 2017.
But the Scot-Govt argued in the Court of Session – to widespread amusement and political scorn – that there is no ban in the first place as the policymaking process is still ongoing.
The judge, Lord Pentland, agreed and said that the INEOS challenge was “unfounded” because “there is no prohibition against fracking in force”.
Pentland also agreed with Scot-Govt lawyers that statements from ministers referring to an “effective ban” were “mistaken and did not accurately reflect the legal position”.
Scottish First Minister Nicola Surgeon later told MSPs that “fracking is being banned in Scotland, end of story” and that people “should welcome the fact that fracking in Scotland is banned”.
The SNP’s website also stated that: “The Scottish government has put in place a ban on fracking in Scotland” – although this wording was changed shortly after the judgement was published.
Mure said the concept of an “effective ban” was PR “gloss” and “the language of a press statement” and that Scot-Govt ministers had merely announced “a preferred position”, but “have not yet adopted a position” on fracking from a legal standpoint.
And he insisted the decision-making process would not end until environmental impact studies are finished in October.
In his written judgement, Lord Pentland backed the Scottish government’s position that there is not currently a legally enforceable ban on fracking.
The judge said: “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.
“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.”
Lord Pentland added that the present position was “an emerging and unfinalised planning policy”, and that there was therefore “no basis on which the court should interfere”.
However, INEOS operations director, Tom Pickering, said: “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 Conservatives claimed the Scottish government had deliberately misled business and local communities over the fracking ban. Its energy spokesman, Alexander Burnett, MSP, said: “From the first minister down it has claimed fracking is banned – no ifs, no buts.
“But now the SNP government has succeeded in a court case on precisely the opposite argument – that there is no ban in place.
“In terms of the general public – whether people are in favour of fracking or deeply opposed to it – it is clear the SNP has taken them as fools.”
Scottish Energy Minister Paul Wheelhouse later commented: “In the meantime, a moratorium is in place which means no local authority can grant planning permission and Ministers would defer any decision on any planning application that did come forward until the policymaking process is completed.
“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.”
Judge to issue verdict later in INEOS appeal against ban on onshore oil and gas exploration after Scot-Gov claim that there ‘is no fracking ban’ provokes torrent of political ridicule
‘Fracking ban? There is NO fracking ban in Scotland!’ Scot-Govt lawyer tells judge in INEOS appeal case
20 Jun 2018