TALK FRACKING WIN COURT CASE AS GOVERNMENT’S FRACKING PLANNING POLICY IS DECLARED UNLAWFUL
Talk Fracking, represented by Leigh Day, was victorious today over their challenge against the government’s adoption of out-of-date and flawed scientific evidence into its fracking planning policy.
This morning, in the Royal Court of Justice, Mr Justice Dove, announced that Talk Fracking had succeeded in its claim against the government, after allowing a judicial review in the case over the climate impacts of shale gas developments. This was heard on the 19 and 20 December 2018.
Talk Fracking argued that the government had acted unlawfully by adopting Paragraph 209a of the 2015 Written Ministerial Statement into a revised version of the National Planning Policy Framework (NPPF), published in July 2018, without first reviewing new scientific data in a transparent manner.
New evidence published since 2015 completely debunks the government’s claim that fracking has a lower carbon footprint than imported liquid natural gas (LNG). Instead, scientific evidence has suggested that fracking exacerbates climate change.
The Mobbs Report, commissioned by Talk Fracking, exposed many of the findings of the government’s keystone Mackay-Stone report. None of the evidence outlined in the Mobbs Report was considered before publishing the revised version of the NPPF in July 2018.
Whitehall’s Fracking Science Failure: How the Government Has Misled Parliament and the Public on the Climate Change Impacts of Shale Oil and Gas Development in Britain, or the Mobbs Report as it is known, was commissioned in 2017 and written by Paul Mobbs.
According to the report, fracking is not a “bridge” to a low-carbon energy future as the government have misled the public to believe. The Mackay-Stone Report is a rusty holding pin that the government and industry have incorrectly relied upon to influence planning policy and party support for fracking since 2013.
The Mackay-Stone Report said fracking would help the UK transition to a renewable energy future whilst helping meet climate change targets. However, the Mobbs Report showed that fracking in the UK would mean missing obligations for the Paris Climate Agreement, whilst also contradicting the aims of The Climate Change Act (2008).
The Mobbs Report concluded that:
“Mackay-Stone Report must be withdrawn, and a moratorium implemented on all ‘fracking’ operations, until we can state the impacts with certainty.”
In reaching his conclusions, Mr Justice Dove stated:
“What appears clear on the evidence is that the material from Talk Fracking, and in particular their scientific evidence as described in their consultation response, was never in fact considered relevant or taken into account, although…this material was relevant to the decision which was advertised, which included the substance and merits of the policy.
“On this basis it clearly was obviously material on the basis that it was capable of having a direct bearing upon a key element of the evidence base for the proposed policy and its relationship to climate change effects.
“As is clear…the MacKay and Stone Report was an important piece of evidence justifying the validity of the policy in the 2015 WMS, and the need to avoid adverse consequences for climate change were an important aspect of whether or not to adopt the policy.”
He further stated:
“The consultation on the draft revised Framework 204a was so flawed in its design and processes as to be unlawful.”
He said it breached the Sedley principles which set out the requirements for a lawful consultation exercise.
Judge Dove said evidence provided by Talk Fracking, including The Mobbs Report, was:
“Capable of having a direct bearing upon a key element of the evidence base for the proposed policy and its relationship to climate change effects.”
Joe Corré, from Talk Fracking said:
“It’s fantastic news to be victorious this morning. I’m very pleased that the Court has confirmed that the government has behaved irresponsibly and recklessly with our democratic rulebook.
“Their consultation was a farce. Their Written Ministerial Statement claim that fracking is a bridge to low carbon economy is not based on scientific evidence. This has been exposed by us taking them to Court. It is also clear, with guidance from the Court, that climate change objections to fracking must be considered at a local planning level.”
During the initial hearing in December 2018, the government’s chief counsel, Rupert Warren QC, was forced to state that in fact, councils could reject fracking on climate change grounds. This was a key finding, because previously, during all planning applications, councils and development control committees have been specifically told they are unable to consider climate change as a factor due to it being a “matter for future policy.”
Claire Stephenson, who brought the claim on behalf of Talk Fracking said:
“The acknowledgement from the Judge, that climate change is a valid concern for campaigners and councils facing fracking planning applications, is a big win.”
Rowan Smith, solicitor from Leigh Day said:
“What is clear from this judgement is that the government has to keep climate change science under review when formulating fracking policies in an open and transparent way.”
“It is clear that the government has to hold a full review of its policy support for fracking, after a meaningful consultation and properly considering the scientific developments.”
The Judge said he will allow Talk Fracking and the government time to consider the implications of the ruling and to make further submissions.
Talk Fracking were represented by David Wolfe QC from Matrix Chambers, Peter Lockley from 11KBW, Jennifer Robinson from Doughty Street Chambers and Rowan Smith from Leigh-Day.
Meanwhile, in the Court of Appeal, three Judges have just finished hearing a case in which Joe Corré from Talk Fracking is challenging a 2017 ruling where fracking company INEOS sought to prevent the right to protest against its fracking operations through applying a draconian injunction to ‘persons unknown’.
A judgement in this case is expected to be handed down in May 2019.