‘Betrayal of public trust’: Government faces legal challenge over decision to lift fracking moratorium

The government is facing legal action unless it reverses its "unlawful" decision to lift the moratorium on fracking, according to a pre-action letter seen by ENDS.

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Environmental campaign groups Friends of the Earth, Talk Fracking and Preston New Road Action Group, have submitted a pre-action letter to business secretary, Jacob Rees-Mogg, saying that if the moratorium on fracking is not reinstated the group will take legal action.

The letter states that the decision-making to lift the moratorium on fracking, which was put in place by the Conservative government in 2019 was “unlawful”, and until this is rectified the ban should be reinstated.

This news comes after  a motion to ban fracking forced by Labour was proposed and subsequently defeated by the government last night by 230 votes to 326, with 36 Tory MPs abstaining from the vote. MP Chris Skidmore, who is currently conducting a review of the government’s Net Zero Strategy, abstained from the vote “for the sake of our environment and climate”.

READ MORE: Conservatives defeat Labour over fracking but lose significant public face

The pre-action letter outlines that the written ministerial statement (WMS) on the 2019 moratorium created a legitimate expectation for the public that the ban would not be lifted unless there was “compelling new evidence” showing that fracking was safe and concerns around seismic activity had been addressed.

But the groups state that the 2022 WMS on lifting the moratorium “failed” to provide new evidence on the safety of lifting the ban. The groups highlighted that the British Geological Society report submitted at the same time the ban was formally lifted said “it is not possible to discount the likelihood of [hydraulic fracture induced seismicity] in shale areas outside of Lancashire occurring”.

The letter asked how advice from the Climate Change Committee was taken into account, namely in its statutory report in 2016 which found that that shale gas exploitation on a significant scale would not be compatible with the UK’s climate change targets unless certain tests were met,  and how the Net Zero strategy was taken into account, when the moratorium was lifted. 

The group also alleges that thee government failed to meet its duty to consult the public before a significant policy shift in overturning the fracking moratorium and the circumstances in which it would be lifted.

Multiple planning authorities in the North of England have voiced concerns about fracking, and held motions of their own, including the conservative council in Lancashire, which represents the area with the only two shale gas wells in Britain.

An earthquake of 2.9ML on the Richter Scale experienced at those wells, at Cuadrilla’s Preston New Road site, were the final straw that triggered the moratorium being put in place in November 2019.

READ MORE: To frack or not to frack: What do the experts say?

Will Rundle, head of legal at Friends of the Earth, said: “Time and again people have been promised no more fracking unless it could be carried out safely and sustainably, without putting communities at risk of unpredictable earthquakes. The government first made this commitment in 2019, then again as part of its election manifesto and most recently within the British Energy Strategy.

“Despite all this, the business secretary has broken his party’s promise. Fracking for gas is, once again, being put above the wellbeing of communities threatened with it where they live, and the climate which will only deteriorate further if it goes ahead – something none of us can afford.

“We consider this disregard for people and the planet, as well as the betrayal of public trust, not only to be dishonest but unlawful. We’ve written to the minister to explain our reasoning and to urge him to reverse this disastrous policy or face legal action.”

Preston New Road Action Group, a community campaign group formed in 2014 to oppose the extraction of shale gas in their neighbourhood said: “Residents living close to the site at Preston New Road know the impacts of fracking and have not forgotten how disruptive it is to their lives.

“Communities like ours should not have to endure the risks that fracking poses to health, wellbeing and our homes, especially when there are safer, more sustainable, alternatives available. We are ready to mount our opposition and see off fracking once again."

The groups will be represented by Leigh Day solicitor Rowan Smith, who said: “The government’s promise could not have been clearer: no fracking, unless proven to be safe. 

“The secretary of state is still apparently concerned about safety, but has reassured Parliament that fracking can go ahead nonetheless, despite no consultation with local communities affected and no evidence to support that position from either the British Geological Society or the Committee on Climate Change.

“The latter advised that fracking is not compatible with Net Zero, a rather unsafe position to be in, unless certain tests have been met. Yet such tests have been completely ignored by this government. This is why our clients consider that the government has acted unlawfully and have written to ministers to demand a U-turn.”

A BEIS spokesperson said: "In light of Putin’s illegal invasion of Ukraine and weaponisation of energy, the Government is taking steps to increase home-grown sources of energy, reduce the UK’s reliance of foreign imports and explore all possible options to boost domestic energy security. 

“The Government has lifted the moratorium on UK shale gas production, enabling developers to seek planning permission where there is local support.”