Scottish fracking ban: can companies take legal action?
The last blog caused a bit of debate on social media with people arguing that Scotland could ban fracking with no legal repercussions. I tried to find a definitive answer on this and found this interview with an environmental lawyer. Reading this I discovered some additional information regarding the legalities of stopping fracking. What follows is an abridged version of the original post which is fairly weighty. Feel free to add any additional information/thoughts below and I’ll update the blog when I get time.
Can Scotland ban fracking?
Possibly, we could potentially make ecocide a criminal offence. Although nobody is talking about that.
Well, why are the Greens and Labour saying we can ban it?
Well, in order to frack a company needs to obtain 3 things:
- a petroleum exploration and development licence
- planning permission from the local council
- an environmental licence or permit from SEPA
Only the first of these is a reserved matter, and under the current Scotland Bill it is due to be devolved. When parties speak of banning fracking what they actually mean is making fracking difficult by interfering with these processes, and this is mainly done through the planning system.
What are the SNP currently doing?
They have a moratorium. They have halted fracking using the planning system until a report they have commissioned has been completed and a public consultation has taken place.
How does the moratorium work?
Interestingly, energy companies can still apply for planning licenses. However, the SNP have instructed local planning agencies to do 3 things if this happens:
- They need to send the Government a copy of the application
- If the council decides to accept the application they need to let the the Government know
- They then need to wait 28 days before awarding planning permission
In this 28 day period the Scottish Government can either make a decision themselves or direct the local planning department to delay the granting of planning permission indefinitely.
What more could be done?
The Greens talk about altering the National Planning Framework. This was done previously in relation to the building of new nuclear power stations. However, this does not stop any interested party applying to build a nuclear power station. It just means that any application would be likely objected to.
There is a slight difference between applying for nuclear power station planning permission and applying for fracking planning permission. With nuclear power the application is made directly to the government whereas with fracking the application is dealt with by the council. Because councils are independent it is more difficult then for the minister to declare there will be no fracking in Scotland. But not impossible.
Can companies take legal action?
Yes, although it is unclear if they will.
If Scotland were to outlaw fracking by making it a crime (the unlikely ecocide option) then it is reasonable to assume a company would take legal action. There are lots of examples of this, most recently in Scotland with the Asbestos-related Conditions (Scotland) Act 2009 and the Alcohol (Minimum Pricing) (Scotland) Act 2012. In the case of a challenge to a hypothetical ecocide law the legal action would only be successful if the law was found to be in breach of European Law. However, as mentioned, nobody is proposing actually making fracking illegal.
In the more likely case of the planning system being used, all planning decisions can be challenged by judicial review via the Court of Session. So, potentially, energy companies could become a nuisance by making lots of planning applications and then challenging the decisions.
The Court of Session will not be able to change a decision that has already been made by a public body, but it can quash or reduce its effect and force the planning authority to reconsider it to make sure it’s acting within the law. This is pretty common process.
However, there is only one example of a person taking the government to court over something that was in the National Planning Framework that the Greens want to alter. The court found in the government’s favour. So, there are legal routes companies can take but whether they will or not remains to be seen.
As an aside, some say that the nuclear industry have not challenged the National Planning Framework so the fracking industry are unlikely to do so. However, this may not be the best comparison due to the expense of building a modern nuclear power station. We can see that in England the government are having problems getting anyone to build a nuclear power station.
Why don’t the SNP Government just alter the National Planning Framework?
To quote Ian Cowan from the original blog:
Having announced the moratorium, the programme of research into the impacts of UGE and the public consultation; and having put contracts out to tender for some of the research projects and since awarded them, the Scottish Government is understandably keen to see the process through rather than change tack at this stage. If the process is genuine and fair, one of the possible outcomes must be a total ‘ban’ (probably a policy ban rather than a legal ban, as suggested above). It is quite possible that the Scottish Ministers have been threatened with legal action, so they would want to avoid giving any fracking company the slightest impression that they might have made such a decision because it had become SNP policy during the moratorium, rather than as a result of a dispassionate review of the research evidence.
As confirmed by Ewan MacCleod, another expert in today’s Herald. The moratorium is the correct legal approach for the government
having created what is known as a ‘legitimate expectation’ to interested parties that it would do so and investing public money in the process.
He also confirmed not doing so could lead to legal action but that legal action would be unlikely to work out in the favour of the energy companies.
For more information, then read the original blog link above or check out another post from the same site which has various informative comments.
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