The Scottish Government must outlaw fracking to protect human health and prevent climate pollution, according to one of Scotland’s leading environmental lawyers.
Campaigners are warning that if the government sticks to its plan to use policy levers instead of changing the law to stop fracking, this would amount to “a betrayal” of the tens of thousands who want the industry stopped.
Opposition parties are now planning moves in the next few weeks to win agreement from the Scottish Parliament for a legal ban. In the past MSPs have repeatedly voted to ban fracking.
The Scottish Government is due to announce its “finalised policy” on fracking before the end of March. Until now it has used a moratorium and what it called an “effective ban” in October 2017 to block fracking applications.
But then ministers were sued for multi-million pound damages by the Grangemouth petrochemical giant, Ineos, for preventing its fracking plans. The company wants to drill wells across central Scotland to fracture underground rocks to release shale gas.
In rejecting Ineos’s plea, the Court of Session ruled in June 2018 that there was “no legally enforceable prohibition” on fracking in Scotland. Instead the Scottish Government had “an emerging and unfinalised planning policy” that didn’t support the technology.
Now O’Neill’s legal opinion – for the environmental group, Friends of the Earth Scotland – has concluded that climate and humans rights laws may require a statutory ban. Such a ban would also reduce the risk of further legal challenges from Ineos, he argued.
“My advice in summary is that it is within the legislative competence of the Scottish Parliament to pass primary legislate in effect to prohibit onshore unconventional oil and gas exploitation in Scotland,” O’Neill said.
“Indeed, given the current international law and domestic regulatory framework, a strong argument can be made out that the Scottish devolved institutions are required under international, European Union, UK and Scots law to impose an outright ban.”
He added: “The surer way successfully to defeat any further legal challenges which might be brought by oil concerns aggrieved at this position, would be for a ban expressly to be to be enshrined in primary legislation from the Scottish Parliament, rather than simply left to the administrative or planning discretion of the Scottish ministers.”
O’Neill’s opinion highlighted “a growing body of evidence” linking fracking to “adverse environmental and public health impacts in the short and longer term.”
For this reason “any failure to impose a ban on unconventional oil and gas development may constitute a breach of individuals’ fundamental rights,” he argued.
O’Neill summarised the Scottish and international agreements to cut pollution from industries such fracking to reduce climate chaos. “The current scientific consensus,” he claimed, was “unequivocally in favour of a straightforward and comprehensive ban on unconventional oil and gas extraction.”
He pointed out that France and Ireland had passed laws banning fracking, while Wales had issued a planning direction against fracking. There had also been bans and restrictions in the Czech Republic, the Netherlands, Bulgaria and Germany.
Mary Church, head of campaigns at Friends of the Earth Scotland, argued that legislation would defeat any further legal actions from Ineos. “It is time for ministers to live up to their rhetoric and legislate to ban fracking for good,” she said.
“Communities on the frontline of this dirty industry have been waiting for over four years for the Scottish Government to bring its long drawn out process on unconventional oil and gas to an end.”
Church warned that the current policy on fracking could be easily overturned by a future government. “Continuing only to use policy levers would be a betrayal of the tens of thousands of people across the country who called on the Scottish Government to act to stop this industry,” she told The Ferret.
“We now have a clear legal opinion confirming it is both possible and more watertight to legislate to prohibit fracking, and Holyrood has a clear mandate from the people of Scotland to do so.”
If the present Scottish Government cares an ounce about its legacy, then we urge it to work together with the other anti-fracking parties to pass a law banning fracking. Mary Church, Friends of the Earth Scotland
She added: “If the present Scottish Government cares an ounce about its legacy, then we urge it to work together with the other anti-fracking parties to pass a law banning fracking and finally put this issue to bed once and for all.”
According to opposition parties, O’Neill’s legal opinion was a game-changer. “It’s high time ministers delivered the legally watertight ban promised,” said the Scottish Greens environment spokesperson, Mark Ruskell MSP.
“This opinion re-opens a range of potential options to ban fracking including through the climate change bill. The strong cross-party majority at Holyrood for a ban isn’t going away, there are already talks underway about the way forward.”
Scottish Labour described the legal opinion as a “significant development” that brought “much-needed clarity” to arguments over fracking.
“I will be seriously considering the next steps required to protect our communities, our environment, and our health from fracking in Scotland while also tackling climate change,” said Scottish Labour’s environment spokesperson, Claudia Beamish MSP.
“The most robust and appropriate way could well be bring back my fracking ban bill, but Labour will also consider whether it would be possible to amend the Climate Change Bill, due in front of Holyrood in a matter of weeks.”
Beamish added: “This legal opinion shows Holyrood not only has the powers, but crucially that a ban in primary legislation is the surer way to defeat future legal challenges.”
Penny Cole from the campaign group, Frackwatch, accused the Scottish Government of “prolonging the agony” for people living in the central belt threatened by fracking. She pointed out that ministers had already renewed the fracking licence originally granted to Ineos by Westminster.
“This threat will hang over people indefinitely,” she said. If ministers failed to introduce a legal ban it would be “a big blot on the government’s record that won’t be forgotten.”
Callum McLeod, who co-chairs Our Forth Against Unconventional Gas, pointed out that 60,000 people had opposed fracking in the Scottish Government’s public consultation in 2017. They would question the “potential hollowness” of government promises, he said.
“Like governments, policies can quickly be changed. We can’t afford to take backward steps at this critical point in time and really need the vision, collective trust and leadership which a fully legal ban would give.”
The Scottish Government reiterated that it did not support onshore unconventional oil and gas development in Scotland. “Scottish ministers are entering the final stages of the policy making process on this important issue,” said a spokesperson.
The Scottish Government does not consider new legislation is necessary to control unconventional oil and gas development in Scotland. Spokesperson, Scottish Government
“The preferred policy position is subject to a statutory strategic environmental assessment and other assessments before a policy can be finalised. These assessments, which involve public consultation, are the latest steps in a cautious, evidence-led approach the Scottish Government has adopted in its policy-making process on this issue.”
The spokesperson added: “The Scottish Government does not consider new legislation is necessary to control unconventional oil and gas development in Scotland and the adoption of a strong policy would provide appropriate and proportionate means to regulate such development.
“The practical effect of the current moratorium, and the policy-making process currently underway, is that no fracking or other unconventional oil and gas activity can take place in Scotland at this time.”
Ineos did not respond to requests to comment. The fracking industry association, UK Onshore Oil and Gas, declined to comment “until a decision is made”.
Fracking wars over the years
2011: Companies propose sites in central and southwest Scotland to drill for underground gas.
April 2014: Public inquiry into plans to extract coalbed methane around Falkirk.
August 2014: Petrochemical giant, Ineos, purchases fracking rights in central Scotland.
January 2015: Energy minister, Fergus Ewing, announces a moratorium on fracking and coalbed methane.
October 2015: Thousands protest against plans for underground coal gasification.
December 2015: The Ferret publishes a series of stories on fracking.
March 2016: Nicola Sturgeon says she is “highly sceptical” about fracking.
June 2016: Scottish Parliament votes for an “outright ban” on fracking.
October 2016: Scottish Government rules out underground coal gasification.
November 2016: Scottish Labour propose bill to ban fracking.
May 2017: The Ferret publishes story about fracking in Pennsylvania.
May 2017: Over 60,000 respond to consultation on fracking, 99 per cent of them opposed.
October 2017: Scottish Government announces “effective ban” on fracking, backed by the Scottish Parliament.
January 2018: Ineos launches legal action to sue the Scottish Government for multi-million pound damages for banning fracking.
February 2018: Scottish Government gains devolved powers over onshore oil and gas licensing for fracking.
June 2018: Court of Session rejects Ineos’s bid for damages on the grounds that Scotland has no legally enforceable ban on fracking.
July 2018: Scottish Government extends fracking licence for Ineos until July 2019.
October 2018: Scottish Government publishes a “preferred policy” of not supporting fracking.
March 2019: Scottish Government due to finalise its fracking policy.
The legal opinion by Aidan O’Neill QC in full