Onshore unconventional oil and gas in Scotland: analysis of responses to consultations

10. Addendum to the 2018 consultation

10.1 Chapters 3 to 9 of this report have presented an analysis of responses to the 2018 consultation. This chapter presents an analysis of responses to the consultation addendum.^[15]

10.2 In light of some of the views that were expressed in response to the 2018 consultation on the Environmental Report, the partial Business and Regulatory Impact Assessment (BRIA), and the Scottish Government's preferred policy position of not supporting the development of unconventional oil and gas (UOG) in Scotland, the Scottish Government published an addendum to the 2018 consultation documents to clarify certain aspects of these documents and to update its position on the reasonable alternatives to the preferred policy position. In particular, the addendum addressed four matters:

• The objectives of the preferred policy position: The addendum provided further clarification on the preferred policy position and its objectives. These objectives are to ensure that in both the planning sphere and in relation to the Scottish Government's onshore oil and gas licensing and regulatory powers, policy should (i) minimise the potential risk of environmental and health impacts by adopting a precautionary approach; (ii) promote the achievement of the Scottish Government's energy transition goals; and (iii) maximise the prospects of meeting the Scottish Government's carbon emissions and climate change targets.
• Consideration of the 'reasonable alternatives' to the preferred policy position: The addendum to the consultation paper updated the Scottish Government's position on the reasonable alternatives to the preferred policy position. Specifically, the addendum sets out that, in view of the objectives of the preferred policy position and in light of the 2018 consultation responses received, Scottish Ministers consider that there is, in effect, no 'reasonable alternative' to the preferred policy position. Neither the 'Business as Usual' nor the 'Pilot Project' alternative described in the 2018 consultation could reasonably be expected to achieve the likely environmental or social outcomes offered by the preferred policy position. Nevertheless, the Scottish Government considers it useful that the Environmental Report assessed (in particular) the 'Business as Usual' scenario, which provided a benchmark against which to measure the likely environmental effects of the preferred policy position.
• The focus on policy, not legislation: The addendum to the consultation paper clarified that, under devolution arrangements, the Scottish Government has powers over onshore oil and gas licensing – and thus, powers to grant or refuse licences to search, bore for, and extract unconventional oil and gas. The addendum further set out that the Scottish Government does not consider that new legislation is necessary to control unconventional oil and gas development in Scotland; but rather, believes that a strong policy would provide the most appropriate and proportionate means to regulate such development. The Scottish Government has committed to embedding the finalised policy position into the National Planning Framework.
• Mitigation: Some respondents to the 2018 consultation commented that the Environmental Report does not take into account available mitigation measures in considering the likely effects of unconventional oil and gas extraction. However, the addendum to the consultation paper clarified that, in fact, the Environmental Report does consider and take these into account. The report acknowledges the availability of mitigation measures which can 'help reduce the scale and severity of effects' of unconventional oil and gas extraction, but concludes that there is 'considerable uncertainty' with regards to the extent to which additional mitigation measures could be 'successfully implemented'.

10.3 Respondents to the consultation on the addendum were asked, in a single question, for their views on the contents of the addendum, as follows:

The Scottish Government welcomes consultee views on this addendum to the assessments of the Scottish Government's preferred policy position on unconventional oil and gas in Scotland.

Description of the respondents and responses to the addendum consultation

10.4 The consultation on the addendum received 113 submissions. Of these, 14 were removed for the following reasons:

• Eleven responses (including one from an organisation) were entirely blank. In each of these cases, the respondent submitted their name and contact details, but provided no comments in response to the consultation question. It may be that these respondents believed that the submission of their name and contact details acted as a form of petition response – although, if that is the case, it is not clear what statement they wished to put their names to. Nevertheless, in each of these cases, if the respondent had agreed to their name and response being published by the Scottish Government, their names are listed in Annex 4. Those who did not agree to have their name published are not listed. Blank responses were not otherwise included in the analysis.
• Four respondents submitted two responses to the consultation. In these cases, if the responses were duplicates, one was removed and the other retained for analysis. If the responses were different, they were combined to create a single amalgamated response. This process resulted in the removal of four responses.

10.5 The analysis was thus based on 98 responses.

Description of the respondents

10.6 Of the 98 responses included in the analysis, 15 were from organisations and 83 were from individuals. (Table 10.1)

Table 10.1: Number of respondents, by respondent type

Respondent type	n	%
Organisations	15	15%
Individuals	83	85%
Total	98	100%

10.7 Just over half of the organisational responses (8 out of 15) were submitted by community councils and other community groups. Other organisational respondents comprised (i) regulatory bodies (Historic Environment Scotland (HES), Scottish Environment Protection Agency (SEPA), and Scottish Natural Heritage (SNH) – all statutory consultees for a Strategic Environmental Assessment); (ii) industry bodies; (iii) a local authority and (iv) a non-governmental organisation (NGO). (See Table 10.2.) A complete list of the organisations responding to the addendum consultation is provided in Annex 4.

Table 10.2: Number of organisational respondents, by organisation type

Organisation type	n	%
Community councils	5	33%
Other community groups	3	20%
Regulatory bodies / statutory consultees	3	20%
Industry bodies	2	13%
Other organisations*	2	13%
Total	15	100%

* Other organisations comprised one local authority and one non-governmental (campaign) organisation.
Percentages do not total 100% due to rounding.

Views on the information in the addendum consultation

10.8 Respondents' views on the four issues discussed in the addendum are presented below. Note that respondents did not always address all four of the topics covered in the addendum consultation paper in their responses. Other views, not directly related to these four issues, are discussed at the end of this chapter.

Overview of responses

10.9 As in previous consultations on this topic, there was a clear difference in the views expressed by community councils, other community groups, campaign organisations, and most individuals on the one hand, and industry bodies and a small group of individuals on the other.

10.10 Individuals in the former group generally provided short responses. Organisations in this group (i.e. community council and other community groups, and a single non-governmental organisation (NGO)) provided longer responses. However, the main concern of both individuals and organisations in this group was in relation to the Scottish Government's proposals to use policy, rather than primary legislation to control unconventional oil and gas development.

10.11 Industry bodies and a small number of individuals who expressed support for the development of an unconventional oil and gas industry in Scotland generally provided longer and more detailed responses which addressed (what they saw as) inconsistencies in the Scottish Government's discussion of the preferred policy position, the approach used to assess the environmental impacts of the 'reasonable alternatives', and the extent to which mitigation could be used to reduce the impact of unconventional oil and gas development.

10.12 Regulatory bodies / statutory consultees (SNH, SEPA and HES) made general comments acknowledging the contents of the addendum. These respondents (i) welcomed the clarification provided in the addendum with regard to the consideration of the reasonable alternatives, and (ii) said that they were content that advice provided previously (in response to the 2018 consultation) will be addressed in the Post Adoption Statement, which will be published once the policy has been finalised. Otherwise these respondents had no further comments. Similarly, the (one) local authority respondent had no comments to make on the issues set out in the addendum consultation but said that they (continued to) endorse the Scottish Government's preferred policy position.

Objectives of preferred policy position

10.13 In general, among those who commented on this issue, community councils, other community groups, organisations in the 'other organisation' category (see Table 10.2 above), and most individuals said that they (i) supported the current position of the Scottish Government with respect to onshore unconventional oil and gas development, (ii) welcomed the Scottish Government's acknowledgement of community concerns on this issue, and (iii) wished to see the policy move forward as quickly as possible to finalisation.

10.14 This group highlighted concerns about the adverse impacts of unconventional oil and gas on public health, communities, the environment, the climate, and the economy which, in their view, justified the Scottish Government's preferred policy position. They also suggested that the Scottish Government's preferred policy position was 'more relevant than ever', given the (recent) announcement of a climate emergency and in light of new recommendations from the Committee on Climate Change on carbon emissions targets.

10.15 Respondents in this group made a range of other disparate points, including that (i) the Scottish Government should adopt a similar policy in relation to offshore oil and gas extraction; (ii) the Scottish Government should develop policies to allow supplies of fossil fuels to be maintained solely for use as chemical feedstocks for industry; and (iii) the wording of the objectives of the preferred policy position should be strengthened, so as to 'eliminate' (rather than 'minimise') potential environmental and health impacts and 'guarantee' (rather than 'maximise') the prospects of meeting carbon emissions and climate change targets. There was also a query about why the addendum had not referred to new evidence which had come to light since the consultation process had started.^[16] In each case, such points were expressed by just one or two respondents.

10.16 Representatives from industry bodies and a small number of individuals expressed views that contrasted to those outlined above. In particular:

• They highlighted that the 'new' policy objective of 'adopting a precautionary approach' was not mentioned or discussed in the Environmental Report or partial BRIA. These respondents suggested that further work would be required to the SEA and BRIA to explain, justify and quantify the precautionary approach objective.
• They disputed the Scottish Government's conclusion (stated in paragraph 11 of the addendum consultation paper) that the development of an onshore unconventional oil and gas industry in Scotland would make achieving the Government's climate change commitments more challenging. These respondents believed that this conclusion was not consistent with the recommendations made in the most recent report of from Committee on Climate Change (published in May 2019). They argued that the Scottish Government's preferred policy position would 'effectively offshore Scottish carbon emissions', resulting in higher carbon emissions overall, contrary to the Committee's recommendation – whereas the development of a domestic source of shale gas would reduce the need to import gas from overseas. This, in their view, would directly support the second and third objectives set out in the consultation paper – to promote the achievement of the Scottish Government's energy transition goals, and to maximise the prospects of meeting the Scottish Government's carbon emissions and climate change targets.
• Compared to the alternative of continuing to import natural gas from overseas, developing a domestic source of gas would also (i) ensure greater control and scrutiny of regulations on health and safety and the environment; (ii) enable a more accurate assessment of Scotland's progress in reducing its carbon emissions; and (iii) allow Scotland to maintain a level of independence and self-sufficiency in its energy supply.

10.17 Occasionally, individuals in this group made other points, including that (i) Scottish domestic oil and gas resources may not be needed by Scotland, but could be used to support the needs of the rest of the UK, thus ensuring that the rest of the UK can minimise its total carbon emissions; and (ii) there is insufficient objective scientific evidence to justify the Scottish Government's policy stance on this subject. In each case, such views were expressed by just one or two respondents.

Consideration of the 'reasonable alternatives' to the preferred policy position

10.18 Relatively few respondents commented on the points discussed in the addendum regarding the alternatives to the preferred policy position – 'Business as Usual' and a 'Pilot Project'.

10.19 Some community councils and / or other community groups and a small number of individuals said they supported the Scottish Government's view that the 'Business as Usual' and 'Pilot Project' options could not be considered to be reasonable alternatives to the Scottish Government's preferred policy position, since neither would meet the objectives of the preferred policy position. Other comments from this group in relation to the 'reasonable alternatives' were closely linked to their views on the use of policy rather than legislation to control unconventional oil and gas development. These views are discussed below under the heading 'Policy, not legislation'.

10.20 Industry bodies argued that the Scottish Government's decision to 'entirely drop' the two 'reasonable alternatives' discussed in the Environmental Report on the basis that they do not meet the Scottish Government's policy objectives is, in their view, a breach of

section14(2) of the Environmental Assessment (Scotland) Act 2005^[17] and contradicts the Scottish Government's guidance on Strategic Environmental Assessment published in August 2013.^[18]

10.21 This group argued that, if the Scottish Government had failed to identify a 'reasonable alternative' against which to assess the preferred policy position, then 'the next stage of consultation should have been to invite comment about what would be reasonable alternatives'. This group also suggested that if the two 'reasonable alternatives' set out in the Environmental Report do not meet the Scottish Government's policy objectives, then the Scottish Government should explain why. In the views of these respondents, the addendum consultation does not currently provide this explanation.

10.22 This group's additional views about the 'reasonable alternatives' were closely linked to their views on 'mitigation' and are discussed below under that heading.

Policy, not legislation

10.23 Among those who commented on the issues set out in the consultation paper on 'policy, not legislation', community councils, other community groups and most individual respondents expressed concern about the Scottish Government's proposal to use planning and licensing mechanisms to control unconventional oil and gas development in Scotland. Some in this group said that their concern about this issue was the main point they wished to make in their response. Both organisations and individuals in this group commonly made the following points:

• They 'fundamentally disagreed' with statements made in the addendum (paragraph 23) setting out the Scottish Government's view that the adoption of a strong policy, rather than new legislation, is the most appropriate and proportionate means to regulate the development of an unconventional oil and gas industry. Some respondents said that the statements in this paragraph are, for them, 'incompletely explained'.
• They had little confidence in the planning system to safeguard communities – particularly since communities do not have the same right of appeal as developers in planning matters.
• They suggested that developers within the unconventional oil and gas industry have the financial means to be able to test the planning system to its full extent – 'with multiple planning applications and appeals and judicial reviews'.
• They suggested that it was not sufficient that the preferred policy position would carry 'significant weight' in development planning once it is embedded into the National Planning Framework (as stated in paragraph 27). Without the force of legislation, this group were concerned that current government policy in relation to unconventional oil and gas development will remain vulnerable to 'the whims and ideologies' of future politicians. This will result in continuing uncertainty for communities.
• A failure to implement a legislative ban on unconventional oil and gas development may be regarded by communities as a breach of the human rights of community members and could leave the Scottish Government open to the possibility of legal action by communities.

10.24 One NGO respondent attached a report setting out expert legal opinion on the matter, which concluded that it would be within the powers of the Scottish Government to legislate on this matter. This organisation argued that the use of primary legislation would be a 'surer way to defeat any further legal challenges' to the Government's policy.

10.25 Occasionally, respondents in this group agreed that the Scottish Government's finalised policy position should be reflected in the next iteration of the National Planning Framework. However, they also called for a 'full legal ban' since, in their view, this would be the most robust way to prevent the development of an unconventional oil and gas industry in Scotland. Others suggested that a 'permanent legal ban' on unconventional oil and gas extraction in Scotland would be most consistent with the recently announced climate emergency.

10.26 Among industry bodies, there was little comment on this point. One representative of an industry body explicitly stated that, since they 'profoundly disagree' with the Scottish Government's preferred policy position, they have no comment to make on 'how it is implemented'.

10.27 However, there was a view among a small number of individuals who supported the development of an unconventional oil and gas industry that the approach to potential future development implied in the addendum consultation paper (that it will be carried out in accordance with overall planning policy) may lead to confusion in the planning process, and could result in legal challenges or appeals to planning decisions – particularly since, as stated in paragraph 30, 'relevant mitigation measures could be applied to any planning applications considered under the preferred policy position'. This implies that there may be some flexibility within the process, which seems at odds with the narrow objectives of the preferred policy position.

Mitigation

10.28 Relatively few respondents commented on the points made in the addendum consultation in relation to mitigation.

10.29 Among those who did, community councils and other community groups, and a small number of individual respondents emphasised that, in their view, no form of mitigation would be able to satisfy communities across Scotland as to the acceptability of onshore unconventional oil and gas development.

10.30 One of the (two) industry bodies and one individual made very detailed comments in relation to the issue of mitigation. Both these respondents suggested that the decision to reject the 'Business as Usual' and 'Pilot Project' alternatives was 'unreasonable' as (they considered) it had been based on the unmitigated impacts of these two scenarios.^[19]

These respondents argued that:

• In concluding that the only way to minimise impacts on the environment is to stop all unconventional oil and gas extraction, the Scottish Government had ignored the use of 'well proven embedded mitigation measures' used routinely in this industry.
• The Environmental Report had acknowledged that regulatory and consenting processes would enable some of the more significant environmental effects to be avoided or reduced in significance.
• The Environmental Report had 'almost without exception, made recommendations for regulatory improvements which are already part of best practice for onshore oil and gas developments'.
• The 'uncertainty' referred to in the addendum consultation paper is debateable and is likely to alter over time as further mitigation techniques are developed, tested and proven.

10.31 The industry respondent noted the statement in the addendum that there is 'considerable uncertainty' as to the extent to which the additional mitigation measures set out in the Environmental Report could be successfully implemented. However, this respondent thought this statement misrepresented what is stated in Chapter 14 of the Environmental Report. Specifically, this respondent commented that the 'considerable uncertainty' about the effectiveness of mitigation was also associated with (i) the lack of detailed information available (to the authors of the report) about the scale of development and other site specifics and (ii) the effects on oil and gas prices and wider patterns of production and use. This respondent further commented that the Non-Technical Summary of the report (page 11) had stated that the effectiveness of (standard) mitigation measures 'would depend on the characteristics of the development'. As the authors had no information about the scale of development or site specifics, they therefore could not be certain about the effectiveness of standard mitigation measures.

Other views

10.32 A range of other views – not directly related to the issues discussed in the addendum– were also expressed.

Views of community groups

10.33 Community council and other community groups expressed concern about the repeated consultations carried out in relation to this issue. This group acknowledged the importance of proceeding with due diligence but highlighted the negative impact of the lengthy process on the health and wellbeing of community respondents. Some of these respondents also cited additional evidence of the harmful impacts of "fracking".

Views of industry bodies

10.34 Representatives of industry bodies expressed the view that the process of consulting on the Strategic Environmental Assessment (SEA) had been 'fundamentally flawed in its approach', and they called for a halt to the process in order that a 'proper' SEA could be carried out alongside a thorough review of the most recent recommendations of the Committee on Climate Change.

10.35 One industry respondent commented that the Scottish Government has awarded offshore oil and gas licences in the Scottish 'inshore area' as part of the OGA 31^st Offshore Licensing Round.^[20] This respondent noted that these licences are not subject to the preferred policy position, but that the partial BRIA should be updated, and further consultation carried out to assess the impact of the preferred policy position on these licences.

Views of individuals

10.36 In general, individuals who made other comments in response to the addendum consultation highlighted what (in their view) they regarded as the significant environmental, health, climate and economic impacts of unconventional oil and gas. These respondents (i) called for greater investment in renewable energy, (ii) believed that Scotland should lead the way in meeting climate change targets, and (iii) suggested that companies currently engaged in oil and gas extraction should be encouraged to apply their knowledge and technological skills to the development of sustainable energy.

10.37 Occasionally, individuals made a range of other diverse comments, including that (i) the suggestion that unconventional oil and gas production is needed to provide feedstocks for plastic and pharmaceutical production is 'spurious' given that the demand for oil and gas will drop sharply over the next few years, and there will be excess capacity from current production to supply the needs of these industries; (ii) the Scottish Government should proceed with onshore oil and gas extraction on a trial basis; and (iii) the Scottish economy would benefit from the development of an unconventional oil and gas industry. However, in each case, such comments were expressed by just one or two individuals.