High Court declares government fracking policy to be unlawful
The High Court has today ruled that key elements of the government’s national fracking policy are unlawful in a decision which has been welcomed by campaigners and community groups around the country.
Environmental campaigning group Talk Fracking, represented by Leigh Day, brought a judicial review challenge of the government fracking policy. David Wolfe QC of Matrix Chambers, Peter Lockley of 11KBW and Jennifer Robinson of Doughty Street Chambers were instructed. The challenge was brought against the national fracking policy contained in the National Planning Policy Framework (NPPF) and specifically the legality of adopting Paragraph 209a of the revised NPPF by the Secretary of State for Housing Communities and Local Government. The judicial review was heard in the High Court on 19 and 20 December 2018.
The strategic challenge, brought by claimant Claire Stephenson on behalf of the group, argued that adopting Paragraph 209a was unlawful on the grounds that the government failed to take into account scientific developments which call into question the “low carbon” claims put forward in support of fracking and failed to carry out a lawful public consultation on the revision of the policy. Both of these grounds were found to have been made out by the High Court.
Previous legal challenges have unsuccessfully sought to overturn individual planning decisions relating to fracking sites. This case was a strategic challenge to the government’s national policy on fracking. Talk Fracking argued that the recent revision of this policy instructs local councils that fracking is beneficial in tackling climate change, contrary to scientific evidence. A Written Ministerial Statement in 2015 made similar claims, and it is argued that the incorporation of that statement into the NPPF ignored key factors that have emerged since, such as a greater scientific recognition of the climate change impact of methane emissions released as a result of fracking.
In reaching his conclusions, the Justice Dove stated:
“67. 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 from what is set out above, on the particular facts of this case 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.”
The Parties will now make arguments to the Court about what the Government must do as a result of the ruling.
Talk Fracking also argued in their legal case that the decision to adopt Paragraph 209a was unlawful because the government failed to carry out a Strategic Environmental Assessment (SEA) and that changing the NFFP failed to give effect to tests set out by the Committee on Climate Change. Both of these grounds were dismissed by the High Court. However, in doing so, the Judge accepted that campaigners are entitled to raise climate change objections when local decisions about fracking are made, and councils will have to resolve those issues.
Claire Stephenson, who brought the claim on behalf of Talk Fracking, said:
“We are delighted that the court has agreed in part with our arguments that the government’s policy on fracking is unlawful. The government have continually sought to ignore public opinion on fracking, despite the overwhelming opposition on a national level. The lack of public consultation and the unbiased support for an industry, without any substantial underlying evidence, has been a cause for concern. The additional acknowledgment from the Judge, that climate change is a valid concern for campaigners and councils facing fracking planning applications, is a big win.”
Joe Corre, founder of Talk Fracking, said:
“It’s fantastic news to be victorious this morning. I’m very pleased that the Court has clarified both that the Government has behaved irresponsibly and recklessly with our democratic rulebook. Their pretend consultation was a farce. This has now been exposed by us taking them to the Royal Courts of Justice. It has now also become clear, with guidance from the Court, that objections to fracking on the basis of its climate change impacts must be considered at a local planning level”.
Rowan Smith, solicitor from Leigh Day representing Talk Fracking, said:
“What is clear from this judgment is that the Government has to keep climate change science under review when formulating fracking policies in an open and transparent way. The 2015 statement that fracking supports a low-carbon economy was never consulted upon, and the Judge was critical of the way the Government, during last year’s consultation exercise, tried to shoehorn that statement into national policy whilst brushing off public objections to the basis for doing so. It is clear what the Government must now do, namely hold a full review of its policy support for fracking, after a meaningful public consultation and properly considering the scientific developments Talk Fracking presented and all other related material.”