Legal challenge that could kill off fracking

A planning tussle in Lancashire could succeed where protestors have failed


Hydraulic fracturing — better known as fracking — may trigger minor earthquakes, and now lawyers are increasingly convinced that shale gas exploration will unleash a tidal wave of litigation in the English courts. Will the law do what hordes of protestors have so far failed to achieve — kill off fracking? Crucial to answering that question is a planning tussle in the north of England. All legal profession eyes in the fracking world are trained on a late-Victorian building in Preston, home of Lancashire County Council. The planning committee there has been making Lichfield-based Cuadrilla leap through a series of hoops as the oil and gas production company bids to kick off the first round of drilling in the UK.

A the end of January, the council’s planning committee deferred for eight weeks a decision on an application for two sites. Energy and planning specialist lawyers now anticipate that local councillors will not want to grasp such a controversial nettle before the general election. But ultimately they will have to. Legal experts say that Cuadrilla has copper-bottomed its submission and that current council issues around noise and traffic are little more than politically motivated delaying tactics with no basis in law. “The Lancashire process is important,” regardless of the result, says Michael Herington, an energy specialist partner at the London office of global law firm Baker & McKenzie, “because it will set the tone to a large extent for England.” A counterpart at the London outpost of energy specialist US law firm Baker Botts agrees. “It will be the first drilled and fracked shale well in the UK,” says Hamish McArdle, “so it will be hugely significant if the application were rejected, or approved — or approved but with stringent conditions.” McArdle says that next to the authorities in Poland — and arguably Romania — the British government is the most enthusiastic cheerleader for shale gas exploration in the EU. France has imposed an outright moratorium, while the Netherlands and Denmark have seen their ardour cool recently as a result of public opposition. Indeed, even the UK political establishment is split on fracking. The issue is devolved in Scotland, and the Edinburgh government has also imposed an open-ended moratorium. That means the groundbreaking legislation — the Infrastructure Act, which became law on February 12 — gave a green light to fracking only in England and Wales. Whatever the result of the planning dance in Lancashire, specialist lawyers expect a welter of litigation in the wake of the council’s decision. Simon Colvin is the partner head of national firm Weightmans’ environmental team — based in the practice’s Manchester office, he is just 36 miles south of Preston. “Other councils will inevitably be looking at the decision,” says Colvin, anticipating that Cuadrilla will get its way in the summer. “The Environment Agency has given the thumbs-up and the council really is only looking at a couple of minor issues. The objections should be relatively easily overcome — and central government is saying this is the right thing to do.” Opponents of fracking will have been boosted by amendments to the Infrastructure Act preventing shale exploration in national parks, areas of exceptional natural beauty and where groundwater would be affected. However, ministerial moves at the beginning of this month could cause further concern. Jay Das, the partner head of planning at law firm Wedlake Bell, explains that the act stipulates that before major drilling starts, exploration companies must conduct a 12- month assessment of the likely impact of methane on groundwater. But within the past few days, the government has extended planning permitted development rights to ease the evaluation process. Das says: “That means developers won’t need planning permission to do various things, such as drilling holes to undertake the groundwater assessment.” Nibbling at the edges of planning law is likely to inflame an already highly emotive atmosphere around shale exploration and lead to legal challenges. Colvin is convinced court action lies ahead. “Fracking is a phased process and we are just at the first rung on the ladder in determining whether the resource is there,” he says. “Further down the production road, there will be large-scale water use and large-scale waste production. Inevitably there will be a raft of legal challenges around those issues.” Or even earlier, McArdle says. “Opponents of fracking will always seek to challenge first decisions,” he predicts in relation to the potential fallout in Lancashire. Nonetheless, he and other lawyers remain convinced that those challenges will not ultimately stymie moves towards shale exploration. “I would be surprised if they will be able to establish sufficient grounds for judicial review,” McArdle says of the opponents’ chances. “It is interesting that in the public protests around exploratory drilling no one has raised any particular legal issues. The objections have been on the grounds of intrusiveness and inappropriateness.” Indeed, specialist lawyers agree that business imperatives — and currently the tumbling oil price — are more likely than the law to slow fracking in England. “The size of the projects are relatively small,” says Vanessa Havard-Williams, global head of environment law at “magic circle” firm Linklaters. “That makes the commercial question of whether developers will want to go through the various regulatory gateways much more difficult.” But, predicts Havard-Williams, “in time we will get shale exploration — but the process will take longer than one might have expected”.