The judicial review against the ban was launched in the Court of Session by petro-chemicals giant INEOS and Aberdeen-based Reach Coal Seam Gas
INEOS owns the Grangemouth refinery and also holds two UK onshore oil and gas exploration licences for specified blocks of land in Scotland.
Since the Scot-Govt imposed its ban on onshore oil and gas exploration, INEOS built a fleet of supertankers to import fracked shale gas from the United States to process at Grangemouth.
Tom Pickering, Operations Director, INEOS Shale, said: “We came to the Court of Session to review the Scottish Government’s position on onshore unconventional Oil and Gas development in Scotland.
“We were astonished to learn during proceedings that the Scottish Government claims that it has not issued a ban on fracking in Scotland, and indeed there may never be one.
“The position of the Scottish Government that has now been stated in court represents a staggering U-turn on the policy direction announced by the Scottish Energy Minister during parliamentary debate in October last year, and by the Scottish First Minister when she said in parliament that “Scotland should welcome the fact that fracking in Scotland is banned”.
“The Scottish people and parliament may find this revelation barely-believable, when the Government has repeatedly told Holyrood that there is an effective and immediate ban.
“The developments during the Judicial Review process undermine the statements made by Ministers and cast further uncertainty and ambiguity across the policy framework for onshore unconventional oil and gas development in Scotland. We took Ministers and the Government at their word.
“Sadly we seem to have reached the Alice-in-Wonderland situation where a business has to go to the Scottish courts to establish whether announcements in Holyrood can be taken at face value.
“As a result there is now an unpredictable and uncertain environment for business in Scotland. Jobs rely on investment, but there is precious little in Scotland at the present time. The current situation makes it harder than ever for business to invest in Scotland for the long term.”
In his evidence, the lawyer for the Scot-Govt – James Mure, QC – attempted to get the appeal case dismissed in a ‘Yes, Minister’ hair-splitting legal distinction that the case is incompetent on the grounds that there is no actual ‘ban’.
He added: “The concept of an effective ban is a gloss. It is the language of a press statement.”
These statements gave rise to a fountain of scorn and incredulity being poured on the Scot Govt, Nicola Sturgeon and Scottish Energy Minister Paul Wheelhouse by MSPs from rival parties.
Sturgeon is now facing demands to explain herself to parliament over the fracking ban fib row and some commentators have said that Wheelhouse may have to either resign – or be sacked – from his jobs as Scottish Energy Minister.
Tory MSP Alexander Burnett, the party’s Energy spokesman in Holyrood, said it was “beyond humiliating for the SNP”.
He added: “Nicola Sturgeon must come to parliament and explain why she has been so disgracefully misleading on this.
“People will be stunned that a QC representing the SNP government in court could so spectacularly contradict the claims and parliamentary statements of Nicola Sturgeon and Paul Wheelhouse.
“Both should explain to parliament as a matter of urgency why these statements were made.”
And Liberal energy spokesman Liam McArthur, MSP, added: “Communities at risk of being affected by fracking will be watching carefully to see if the Scottish Government’s promised ban stands up to scrutiny.
“The First Minister has been adamant in her description of an outright ban.”
INEOS has said that a ban on fracked oil and gas extraction would result in Scotland missing out on economic benefits, including more than 3,000 new jobs and £1 billion in benefits for local communities.
Ineos also said that millions of pounds it invested in acquiring fracking licences and obtaining planning permission for drilling sites had been “rendered worthless”.
INEOS’ lawyer said that the statement showed that the government had changed its policy from a moratorium to an outright ban and want the court to declare that the Scottish government acted unlawfully by making this statement.
INEOS want the court to declare that it is unlawful for Scottish Ministers to use their powers under planning legislation to ban fracking in Scotland.
‘Fracking ban? There is NO fracking ban in Scotland!’ Scot-Govt lawyer tells judge in INEOS appeal case
11 May 2018