Daria Shapovalova opines on hydraulic fracturing in October 2017, the Scottish Government issued an ‘effective’ ban on hydraulic fracturing in the country. The energy companies Ineos and Research CSG announced they would challenge the Scottish Government’s decision to block any future fracking. Although under the devolution acts most of the energy competences are reserved with the UK government, Scotland has been exercising control over its fuel mix through its competences in environment, climate policy, and planning.
Under the Scotland Acts 1998 and, more recently,2016, competence to formulate policy on most aspects of energy supply is reserved to the Westminster. These include policies on supplies of electricity, oil and gas, nuclear energy, and on energy conservation. However, a big role in executing energy-related decision-making comes from the devolved powers in planning, climate policy, and environment. These allow the Scottish Government to legislate, inter alia,on decarbonisation targets through the ClimateChange (Scotland) Act 2009, and to exercise broad powers with regards to authorisation of energy projects on-land and up to 12 nautical miles off the coast. The Scotland Act 2016 devolved further energy-related powers to Scotland, such as on shore petroleum licensing and fuel poverty initiatives.
The energy outlooks of Scotland and the UK have clashed repeatedly in the past decade. While the UK Government is generally supportive of shale gas development and new nuclear power plants, the Scottish Government opposes them. Scotland has consistently backed onshore and offshore wind, amidst the withdrawal of support for the former in England and a UK-wide roll-back of subsidies. These clashes intensified leading up to the 2014 independence referendum, but are still relevant today as the Scottish Government’s competence to pursue its energy policy goals remains open to question.
Hydraulic fracturing or ‘fracking’ refers to the method used for the extraction of shale gas by injecting water at high pressure. Although it has been used widely around the world, particularly in the U.S. in recent and past years, there are significant concerns over the effects of using fracking with regards to groundwater pollution, triggering seismic activities, and diverting the use of land and water from other users, e.g. agriculture. The UK Government has been supportive of shale gas development, stressing the rising reliance on gas imports and rigorous safety and environmental regulation.
The 2015 Shale Gas and Oil Policy Statement argues there is ‘a national need to explore and develop our shale gas and oil resources in a safe,sustainable and timely way’.
The Scottish Government, in turn, took an opposing position; the moratorium on unconventional oil and gas development in Scotland has been in place since January 2015. It further announced the need for comprehensive evidence gathering and, in 2017,carried out a four-month consultation, ‘Talking‘Fracking’, showing an overwhelming support for theban from the public.
In October 2017, the Scottish Government announced an ‘effective ban’ on hydraulic fracturing in the country, followed by a Scottish Parliament vote overwhelmingly supporting this position. The Scottish Energy Strategy, published just a few months later, states that this ‘preferred policy position’ will be subject to a Strategic Environmental Assessment and, once finalized, ‘will also be reflected in the next iteration of the National Planning Framework’.
Earlier this year, the energy firms Ineos and Research CSG announced they would challenge the Scottish Government’s decision to block any future fracking.Ineos holds two licenses for shale gas development in Scotland and argues that it is ‘unlawful for Scottish Ministers to use their powers under planning legislation to introduce a ban on (fracking) in Scotland’. They emphasize the potential lack of competency on the part of the Scottish Government and the missed opportunities ‘on the numerous economic and employment benefits’. Although the arguments can be made for both sides, this judicial review will be of significant importance for assessing Scotland’s competence in energy decision-making. While strong language on the ‘fracking ban ’seemed unequivocal back in October 2017, following the judicial challenge, the Government has clarified that it had merely ‘announced a preferred position’ and ‘had not yet adopted a decision’.
Scotland is, no doubt, taking on an ambitious challenge in its energy strategy. However, it is not clear if the powers accorded to it under the devolution settlement will be enough to grant it full control over its energy sector. As demonstrated, abandoning nuclear and shale gas alone, might not provide a viable solution. With heating still being gas-dependent and the subsidies for renewables still reserved with Westminster, boosting wind energy in order to close the gap might provide a bigger challenge for Scotland than defending its planning permission powers in domestic heating and of the fuel source of Scottish government fit into the furthering Scotland has been exercised.
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