Legally speaking, the Scottish government has not banned hydraulic fracturing. But don’t plan to frac a well there anytime soon.
Last October, Energy Minister Paul Wheelhouse told Parliament, “We will not support the development of unconventional oil and gas in Scotland.”
He said the government had advised local authorities that a moratorium imposed on the completion method in 2015 would “remain in place indefinitely.”
That action, he said, meant that “we will use planning powers to ensure that any unconventional oil and gas applications are considered in line with our position of not supporting unconventional oil and gas.”
He called the use of planning powers “an effective and much quicker way to deliver our policy objectives” than legislation would have been.
When members of Parliament opposed to hydraulic fracturing worried about reliance on planning powers, First Minister Nicola Sturgeon, 2 days after Wheelhouse spoke, said, “Fracing is being banned in Scotland—end of story. There will be no fracing in Scotland, and that position could not be clearer.”
But when Ineos Shale, which wants to test shale gas potential between Glasgow and Edinburgh, sought judicial review of the ban, the position proved to be hopelessly murky.
Lord Pentland of the Court of Session in Edinburgh rejected the company’s petition and upheld the government’s argument that it had not actually banned hydraulic fracturing.
Pentland’s opinion coursed through tortuous Scottish jurisprudence to conclude, in effect, that the conclusion of planning awaits an environmental assessment that won’t be available until its inclusion in a planning document due in 2020. And because the government anchored its announced ban to powers of planning not yet complete, the ban cannot exist; therefore, Ineos Shale’s argument is “unfounded.”
For the government to have made that argument after its energy and first ministers said what they did, as emphatically as they did, was surpassingly cheeky, of course. But the tactic worked.
And all that’s clear now is that Scotland has too many legalities per unit of shale-gas resource.
(From the subscription area of www.ogj.com, posted June 22, 2018; author’s email: [email protected])