Claire Stephenson v Secretary of State for Housing and Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove |
| Judgment Date | 06 March 2019 |
| Neutral Citation | [2019] EWHC 519 (Admin) |
| Docket Number | Case No: CO/3511/2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 March 2019 |
[2019] EWHC 519 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Dove
Case No: CO/3511/2018
David Wolfe QC, Peter Lockley and Jennifer Robinson (instructed by Leigh Day) for the Claimant
Rupert Warren QC and Heather Sargent (instructed by Government Legal Department) for the Defendant
Hearing dates: 19 th/20 th December 2018
Approved Judgment
See Judge's note at foot of this judgment
Introduction
The Claimant brings this claim on behalf of an organisation known as Talk Fracking. She does so as a supporter of that organisation's objectives. Talk Fracking is involved in campaigning on the dangers it considers the fracking industry poses to the environment, and also operates as a means of hosting a forum for informed debate on fracking and unconventional energy extraction. The nature of the technique involved in fracking, or hydraulic fracturing, is well known: for those unfamiliar with that technology it is described in paragraphs 8 and 9 of Preston New Road Action v Secretary of State for Communities and Local Governments [2017] EWHC 808; [2017] Env LR 33. Talk Fracking has been active in relation to these issues for around five years.
By this application for judicial review the Claimant seeks to challenge the adoption by the Defendant of paragraph 209(a) of the National Planning Policy Framework (“the Framework”) on 24 th July 2018. Under the heading “Oil, gas and coal exploration and extraction”, paragraph 209(a) provides as follows:
“209. Minerals planning authorities should:
a) recognise the benefits of on-shore oil and gas development, including unconventional hydrocarbons, for the security of energy supplies and supporting the transition to a low-carbon economy; and put in place policies to facilitate their exploration and extraction.”
This matter was directed to be heard as a “rolled-up” hearing by Holgate J on 22 nd October 2018. The Claimant advances four grounds of challenge. Whilst these are dealt with in greater detail below, in order to introduce the issues the four grounds are as follows. Firstly, Ground 1 is the contention that the Defendant unlawfully failed to take into account material considerations, namely scientific and technical evidence, which had been produced following the adoption of a Written Ministerial Statement by the Secretary of State for Business and Energy and Industrial Strategy and the Defendant on 16 th September 2015 (“the 2015 WMS”). Ground 2 is the Claimant's argument that the Defendant failed, in publishing the policy in paragraph 209(a) of the Framework, to give effect to the Government's long-established policy in relation to the obligation to reduce green-house gas emissions under the Climate Change Act 2008. Ground 3 is the contention that in adopting paragraph 209(a) the Defendant unlawfully failed to carry out a Strategic Environmental Assessment. The issues raised in relation to this ground of challenge are essentially identical to those being addressed in the case of Friends of the Earth v Secretary of State for Housing, Communities and Local Government [2019] EWHC 518 (Admin) and the Claimant in the present case accepts that, given the arguments are parallel, Ground 3 will be resolved by the conclusions reached in relation to the arguments raised in the Friends of the Earth case. Finally, by way of Ground 4, the Claimant contends that the Defendant failed to carry out a lawful consultation exercise in relation to the revisions to the Framework which were published on 24 th July 2018.
This judgment is structured as follows. Firstly, the factual background to the publications of the revisions to the Framework will be set out chronologically, together with the accompanying evidence furnished as part of the litigation for the purposes of the hearing. Secondly, the relevant legal principles will be set out. Thirdly, the Claimant's grounds will be examined and evaluated. In accordance with the way in which the Claimant presented her case at the hearing that consideration starts with Ground 4 and Ground 1 (which the Claimant identified closely interact) before proceeding to Grounds 2 and 3.
I wish to place on record my thanks to counsel and the solicitors instructed in this case for their invaluable contribution to the preparation of the case for the hearing, and for the careful and focused submissions which I have received which have greatly assisted me in my task.
The Facts
On 16 th September 2015 the Secretary of State for Energy and Climate Change along with the Defendant published the 2015 WMS in Parliament entitled “Shale Gas and Oil Policy”. The statement was to “be taken into account in planning decisions and plan making”. The 2015 WMS went on to observe as follows:
“The national need to explore our shale gas and oil resources
Exploring and developing our shale gas and oil resources could potentially bring substantial benefits and help meet our objectives for secure energy supplies, economic growth and lower carbon emissions.
Having access to clean, safe and secure supplies of natural gas for years to come is key requirement if the UK is to successfully transition in the longer term to a low-carbon economy. The Government remains fully committed to the development and deployment of renewable technologies for heat and electricity generation and to driving up energy efficiency, but we need gas-the cleanest of all fossil fuels- to support our climate change target by providing flexibility while we do that and help us to reduce the use of high-carbon coal.
Natural gas is absolutely vital to the economy. It provides around one third of our energy supply.
…
Meanwhile events around the world show us how dangerous it can be to assume that we will always be able to rely on existing sources of supply. Developing home-grown shale resources could reduce our (and wider European) dependency on imports and improve our energy resilience.
There are also potential economic benefits in building a new industry for the country and for communities.
…
We do not yet know the full scale of the UK's shale resources nor how much can be extracted technically or economically.
…
Shale gas can create a bridge while we develop renewable energy, improve energy efficiency and build new nuclear generating capacity. Studies have shown that the carbon footprint of electricity from UK shale gas would likely to be significantly less than unabated coal and also lower than imported Liquefied Natural Gas [9].
The Government therefore considers that there is a clear need to seize the opportunity now to explore and test our shale potential.”
The reference in footnote 9 related to the carbon footprint of shale gas generated electricity and it provided a cross-reference to research which had been commissioned by the Department for Energy and Climate Change from Professor David MacKay and Dr Timothy Stone (“the Mackay and Stone Report”). The MacKay and Stone Report, which is dated 9 th September 2013, is entitled “Potential Greenhouse Gas Emissions associated with Shale Gas Extraction and Use”. The purpose of the study was to address concerns about the likely potential greenhouse gas emissions from the production of shale gas, and the compatibility of the use of shale gas (in the light of the available evidence) with the UK's climate change target. The conclusion which the MacKay and Stone report reached was that greenhouse gas emissions associated with shale gas exploration and production should represent “only a small proportion of the total carbon footprint of shale gas, which is likely to be dominated by CO2 emissions associated with its combustion”. The overall calculations of the carbon footprint for production and use of shale gas was compared favourably by the MacKay and Stone Report to the carbon footprint of coal, and comparable to gas extracted from conventional sources whilst lower than the carbon footprint of Liquified Natural Gas. This report therefore provided the support for the implicit conclusions in the 2015 WMS that the use of shale gas would be consistent with the Government's targets for climate change and greenhouse gas emissions, and would perform significantly better than other alternative choices in the form of coal or Liquified Natural Gas. Shale gas therefore provided a potential source of energy to bridge the transition from the present to a future supported by renewable energy, it being recognised that it would take some time for renewable energy sources to come fully on stream.
On the 12 th December 2015 the Paris Agreement on Climate Change was agreed. At around this time concern was intensifying in relation to whether or not the data which had been used to model greenhouse gas emissions from shale gas extractions was reliable, or was in fact seriously underestimating the emissions from extraction activities.
Under the provisions of the Infrastructure Act 2015 the Committee on Climate Change (the “CCC”) has been given a duty to report to the Government and advise on issues associated with meeting the UK's carbon budget and 2050 emissions reduction target related to the Climate Change Act 2008. In March 2016 the CCC specifically reported on the compatibility of exploitation of UK onshore shale gas with meeting the UK's carbon budget. This March 2016 report recorded a summary of the conclusions of the CCC as follows:
“The implications for greenhouse gas emissions of shale gas exploitations are subject to considerable uncertainties, both regarding the size of any future industry and the emissions footprint of production. This uncertainty alone calls for close monitoring of developments. The Committee will report back earlier than its next...
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