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Ineos lose Scottish fracking challenge

Ineos and Aberdeen firm ReachCSG took the Scottish Government to court seeking a judicial review of Scottish Ministers' policy on fracking.

Posted on 20 June 2018

In his ruling given on Tuesday 19 June 2018, at the Court of Session in Scotland, Lord Pentland found that, as a matter of law, there is no prohibition against fracking in Scotland.

In his ruling, he said the Ineos stance was based on a "series of fundamental misunderstandings of the Scottish Government's position" and refused permission for a judicial review of the Scottish Government's decision.

Lord Pentland said: "The petition is predicated on the proposition that the Scottish Government has introduced an unlawful prohibition against fracking in Scotland.

"Whilst acknowledging that there have been a number of ministerial statements to the effect that there is an effective ban, the Lord Advocate, on behalf of the Scottish Ministers, made it clear to the court that such statements were mistaken and did not accurately reflect the legal position.

"The stance of the Scottish Government before the court is that there is no legally enforceable prohibition.

"For the reasons set out in this judgment, I consider that the Government's legal position is soundly based and that there is indeed no prohibition against fracking in force at the present time."

After the ruling Leigh Day Solicitor Carol Day said, “We support the call on the Scottish Government to now formally confirm its ban on unconventional oil and gas exploration in line with public opinion and other jurisdictions of the UK that are on the same trajectory.”

Lord Pentland found in favour of the arguments put forward by the Scottish Government that its 'preferred policy position' of no support for fracking announced by Ministers last year does not amount to a legally enforceable prohibition therefore INEOS's case is unfounded.

Lord Pentland further found that since a decision had not yet been made, INEOS's claim for compensation on the basis of a breach of its human rights was premature.

Friends of the Earth Scotland Head of Campaigns Mary Church said: "We are delighted that INEOS has lost its challenge against the Scottish Government's 'effective ban' on fracking. The ruling will come as a huge relief to the thousands of people who have fought to stop fracking in Scotland, particularly those faced with the prospect of living near this dirty, damaging industry.

"INEOS should listen to the people and Parliament of Scotland who have made it clear that there is no support for fracking, and give up on its plans to trash the central belt and the climate.

"We urge the Scottish Government to move forward with its decision making process on fracking as swiftly as possible and use the powers now available to them to legislate for a full ban, and draw a line under the issue of unconventional oil and gas extraction for good.”

Represented by the Scottish law firm Balfour+Manson and Aidan O’Neill QC of Ampersand and Matrix Chambers with input from Leigh Day, Friends of the Earth Scotland submitted a public interest intervention in the judicial review, arguing that not only is the ban on fracking lawful, but that the Scottish Government is required to ban fracking in order to meet Scotland's legally binding climate change commitments.