A SENIOR lawyer hit the legal attempt by Ineos to overturn the Scottish Government’s “ban” on fracking with something of a bombshell in the Court of Session yesterday.
According to advocate James Mure QC, who is acting for the government, the “ban” isn’t actually in place yet and won’t be until October, if it is brought in.
Mure urged the court to throw out the legal action by Ineos and Reach GSG which is aimed at overturning the Scottish Government’s “ban” on fracking.
The two companies say the Scottish Government acted illegally in announcing an “effective ban” last year, but Mure said the companies were wrong because the Government had “not yet adopted a position” on whether to impose a ban.
The Scottish Government announced a moratorium on fracking in 2015. It did so to examine public opinion and the views of experts on whether the controversial technique for extracting oil from shale should be allowed in Scotland.
Last year ministers said there was “overwhelming opposition” and announced an “effective ban”. Ineos claims that ministers at Holyrood made “very serious” errors in their decision-making process.
A spokesman for Ineos said: “Ineos Shale is asking the Scottish Court to decide whether the fracking ban is lawful. We believe the Scottish Government exceeded its powers and lacked competence to impose a ban.”
The company said a ban would result in Scotland missing out on economic benefits, including about 3100 jobs and £1 billion for local communities, and it says that millions of pounds it invested in acquiring the fracking licences and obtaining planning permission for drilling sites had been “rendered worthless” – the licences were originally issued by the Westminster government. Both companies are also seeking damages, though have not yet stated how much.
Environmental charity Friends of the Earth Scotland has been granted a public interest intervention in the case and believes that the process to ban fracking was “robust and fair”.
Mure argued that the action should be dismissed and insisted the companies were mistaken in thinking that a ban was in place. He said that ministers were still considering whether fracking should be stopped – with a decision due in October of this year.
Mure said: “I think I can safely say that parties are agreed this case does not concern the merits or demerits of the development of unconventional oil and gas in Scotland. This case ... rather concerns the characterisation of events on or since October 2017 and the question of whether said statements by ministers are lawful.
“The court ought to recognise that what ministers have done is announce a preferred position.
“That they have not finally adopted it because they know in law it requires to undergo a strategic environmental assessment.
“The concept of an effective ban is a gloss. It is the language of a press statement. What they have done is to announce a preferred position on the issue.
“They have not yet adopted a position. Any position which the government will take has to undergo an environmental and strategic assessment.
“The court should therefore allow the policy-making process to go to finalisation which is expected in October this year.”
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