THE SNP Government has told Scotland’s highest court that it has not banned fracking, despite giving the impression that it had.
Defending a legal action to overturn the “effective ban”, the government’s QC said ministers had used “the language of a press statement”, but had not yet adopted a firm position.
Labour said it summed up the SNP’s preference for “spin before substance”.
Petrochemical companies Ineos and Reach CSG have launched an action at the Court of Session in an attempt to overturn the “ban” and allow the controversial gas technology.
They argue the government made “serious errors” in its decision-making process.
Ministers introduced a moratorium on fracking, which involves pumping water and chemicals at high pressure into shale beds to release gas, at the start of 2015.
Critics say it contributes to climate change and poses a risk to public health.
Ineos, who operate the Grangemouth refinery and currently import shale gas from the US in supertankers, say a local supply could help sustain jobs and boost the economy.
Scottish ministers ban fracking amid 'overwhelming' public opposition
A public consultation drew more than 60,000 responses was overwhelmingly opposed to it.
Last October, SNP energy minister Paul Wheelhouse told Holyrood that planning powers would be used to “effectively ban” fracking by stopping councils from permitting it.
He told MSPs it meant “fracking cannot and will not take place in Scotland”.
However advocate James Mure QC, for the government, said Ineos and Reach were mistaken in thinking a ban was in place, and ministers had yet to decide.
He said: “The concept of an effective ban is a gloss. It is the language of a press statement. What they have done is to announce a preferred position on the issue.
"They have not yet adopted a position. Any position which the government will take has to undergo an environmental and strategic assessment.
"The court should therefore allow the policy-making process to go to finalisation which is expected in October this year."
The comments jar with a series of SNP announcements about fracking.
The SNP website states: “The Scottish Government has put in place a ban on fracking in Scotland - meaning fracking cannot and will not take place in Scotland.”
During his October statement, Mr Wheelhouse was challenged by Green MSP Mark Ruskell, who said the government had not introduced a ban, but merely extended the moratorium.
The minister said he was “taken aback” and suggested Mr Ruskell had not been listening.
Mr Wheelhouse went on: “I give reassurance - I tried to make it crystal clear in my statement - that there is, in effect, a ban on unconventional oil and gas activities in Scotland.”
A week later, a series of ministers told the SNP conference there was a ban.
Deputy First Minister John Swinney said there was “a ban on fracking here in Scotland”.
Transport minister Humza Yousaf said: “Under the SNP’s watch there will be no fracking in Scotland! And for the benefit of Scottish Labour who are somehow still greeting about our ban on fracking, bizarrely claiming it isn’t a ban – It is.”
The conference also passed a motion welcoming “the SNP Government’s recent decision to ban unconventional oil and gas extraction which means fracking cannot and will not take place in Scotland”, leading Mr Wheelhouse to say: “I was proud to announce to the Scottish Parliament last week that 'fracking' will be banned in Scotland.”
SNP planning minister took cash from pro-fracking drilling company
Nicola Sturgeon told delegates: “Fracking is now banned in Scotland.”
A fortnight later, as the Scottish Parliament voted on the issue, Mr Wheelhouse said an “effective ban using our devolved planning powers is now in place” but added the caveat that it was “pending the outcome of the required strategic environmental assessment”.
The motion passed by parliament, which only the Tories opposed, said the government had introduced “an immediate and effective ban” on fracking, with their position “subject to a strategic environmental assessment before being finalised”.
Labour MSP Claudia Beamish said: “This sums up perfectly the SNP government's attitude - spin before substance. Nicola Sturgeon and her ministers told MSPs – and more importantly campaigners and communities – that Scottish towns and villages were no longer at risk from fracking and the environmental damage it can cause because they had banned it.
"Now the government's lawyer is saying the opposite - saying it is the language of a press release. SNP ministers need to explain this - fast.
“It isn't sustainable for the SNP to be saying one thing on their leaflets, website and in press releases and something else entirely in a courtroom."
A Scottish Government spokesperson said: "The Scottish Government has made its preferred position clear and this is now subject to a Strategic Environmental Assessment. It would be inappropriate to comment further during the judicial review process."
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