Lancashire’s fracking victory was even greater than we knew by Damien Short, 21st July 2015
The anti-fracking movement scored a great victory when Lancashire councillors refused planning permission for two fracking wells, writes Damien Short. But dig deeper and the triumph was all the greater, as it overcame not just Cuadrilla, but a morass of pro-fracking bias and legal and scientific misrepresentation from those meant to be providing impartial advice.
In short, the Planning Officer’s report on which councillors are meant to place much weight was not just deeply flawed but demonstrably biased in a favour of the applicant. The question is why?
As Director of the Human Rights Consortium’sExtreme Energy Initiative, earlier this year I was asked by local residents’ groups to provide expert testimony to the Lancashire County Council (LCC) Development Control Committee (DCC) on the human rights impacts of fracking – the controversial unconventional gas extraction technique.
The invitation came on the back of a co-authored report for the Bianca Jagger Human Rights Foundation into the human rights impacts of fracking, reported on in The Ecologist.
My evidence was requested due to two controversial potential fracking sites, Preston New Road and Roseacre Wood, which were being proposed by fracking firm Caudrilla.
I have been studying the social and environmental impacts of fracking for over five years and I have accumulated a considerable amount of impact data which suggests that the technology and its associated infrastructure poses a significant threat to environmental human rights such as to clean water.
Moreover, the politics of fracking poses significant threats to civil and political rights, freedom of assembly and expression and freedom from arbitrary arrest and detention.
While the ‘rejection’ outcomes of the Lancashire hearings rightly pleased many in the anti-fracking movement the process up to that point was deeply concerning on a number of levels that do not bode well for future applications.
Specifically, there were key areas where the applicant was clearly favoured at the expense of the views of, and evidence presented, by the local objectors and their expert witnesses.
And the deciding Councillors were effectively threatened with legal action if they refused the application. They were told that to refuse the application would be tantamount to breaking the law, as it would be an “unsustainable” decision lacking evidence, and would expose them to high appeal costs at a time when councils are austerity ravaged.
‘Biased and disrespectful’ – the Planning Officer report
The LCC Planning Officer’s report published by LCC on 15 June 2015, which is meant to provide an unbiased appraisal to assist the DCC reach a decision was, at best, fundamentally flawed and inadequately researched, and, at worst, biased and disrespectful.
Development Control Committee’s give considerable weight to planning officer reports, especially when much of an application concerns material which is both highly technical and hotly debated. Thus, the Planning Officer bears a huge responsibility to evaluate the application, via a reasoned summary of the best available evidence, in an impartial and responsible manner.
Unfortunately, in this case the planning officer reports fell so woefully short of such standards that they raise the obvious suspicion of undue political and/or industry pressure and influence.
When it came to discussing one of fracking’s most notorious issues – the health impacts on local populations – the Planning Officer’s report stated:
“Many representations received by the County Council refer to research conducted in North America and overseas that indicate shale gas extraction is linked to adverse health impacts. While much research exists, and is growing in volume each year, it is difficult to gain an objective view of the veracity of the research.
“Anti-fracking campaigners frequently point to studies that indicate increased health risks (e.g. elevated risks of cancer or birth defects) as a result of shale gas activity in North America. Conversely, pro-fracking campaigners point to numerous methodological flaws in the research.” (Public Reports Pack p.53)
At best, this is an unforgivably lazy summary from a supposedly impartial public official meant to be serving the public interest, at worst it is suggestive of a pro-fracking bias.
It is a relatively easy task to review the evidence and rank in terms of scientific value, academic rigour and independence. When negative public health impact studies appear it is routine tactical propaganda for industry and their supporters to dismiss the findings on the grounds of questionable ‘methodology’, as if it were they who gathered the data and possessed the requisite research training.
Such challenges, unlike their targets for attack, are not peer reviewed, but industry know that mud sticks and reports such as the LCC PO are evidence of that.
The report ignored and downplayed inconvenient evidence
Unfortunately the suggestion of bias just increases the more one delves into the PO’s report. It lauds the approach taken by Public Health England in its June 2014 report on fracking health impact data, citing its reliance on “peer reviewed literature” (is this the same evidence which the PO previously argued was hard to verify?).
I then uses this backing to attempt to dismiss in one fell swoop the findings of other peer reviewed research which concerned local citizens had been highlighting to the DCC in the hearings and written submissions:
‘Much of the research cited in representations to the County Council was reviewed by PHE… (who) highlight significant methodological flaws in the research that has been cited to the County Council.’
Why doesn’t the Planning Officer read the academic material cited in submissions at source rather than rely on another Public bodies’ reading of it? Or at least balance PHE’s spin by considering the obvious ‘methodological flaws’ of its own report by renowned environmental consultant Paul Mobbs, which fail to get a mention in the Planning Officer’s report. It continues:
“Moreover, one study frequently cited by objectors (McKenzie, 2014) has been publically criticised by the Chief Medical Officer and Executive Director of the Colorado Department of Public Health and Environment in the USA as follows: ‘we disagree with many of the specific associations with the occurrence of birth defects noted within the study. Therefore, a reader of the study could easily be misled to become overly concerned.’ “
So the public must believe the pronouncements of such officials over peer reviewed academic research? This whole passage reads as is if the author has been trawling the internet looking for any half-baked repudiation of robust academic research or had he been spoon-fed the material to serve an alternative agenda?
This latter possibility seems more plausible the further one delves into the report. Going beyond simple selective reading, the PO report systematically downplayed, and sought to marginalise, the evidence presented by expert witnesses.
Attacking the Medact study
Seemingly in order to protect the definitive status afforded by the report to PHE’s summary, the Planning Officer’s report took aim at the far more rigorous Medact study. The methodology for this attack was twofold:
1) point out the Medact authors did not conduct their own original epidemiological research – which of course neither did PHE, but that wasn’t deemed injurious their report
2) to undermine and question the professional expertise and integrity of two clearly identifiable (although, tellingly, no names were mentioned) expert witnesses, Mike Hill and Dr Frank Rugman:
“The Medact report has not produced new epidemiological research but has reviewed published literature and has requested short papers from relevant experts in particular subject areas. It has also interviewed academics and experts.
“Unfortunately, one of the contributors (contributing to three of the report’s six chapters – chapters 2, 4 and 5) has led a high profile campaign in the Fylde related to shale gas. Another contributor to the report (chapter 3) has previously expressed firm views on shale gas and has objected to this application.
“This has led to questions from some quarters about the report’s objectivity. In light of these uncertainties it is not clear how much weight the County Council should attach to the report.”
As a statement in a report by a supposedly impartial public official this is truly astonishing in its bias and lack of respect. It is predicated on a wilful ignorance of a researcher’s usual goal: when conducting research it is hoped that the data will in fact allow one to hold“firm views” based on analysis of the data produced when concluding.
Such a result makes it possible to give advice on the best course of action, to have a policy impact and such like. A valid question would be: do the ‘firm views’ flow from the evidence considered? Having read the Medact report, and much of the source evidence it considers, I would say unequivocally yes and so would any unbiased observer in my view.
We can also reasonably ask why an alleged “high profile campaign” by the first contributing expert mentioned (Mr Hill) should “unfortunately” reduce the weight given to his evidence? If Mr Hill feels compelled to speak out in the public interest based on his knowledge and expertise then that is his right and moral duty. Or do we now live in a world where we can only hold ‘firm views’ and speak out if we are blindly following corporate agendas?
Meticulously assembled evidence dismissed as ‘anecdote’
Another expert witness, Professor David Smythe, appalled by this approach, hasrequested the source of the “questions from some quarters” under Freedom of Information Legislation. Whatever the outcome such statements should not appear in an objective and balanced planning report and only serve to further undermine the public’s confidence in the impartiality of public authorities.
In a section, counter-factually, entitled ‘Minimal environmental risks’ the detailed, meticulously researched and closely argued 30,000 word submission of Emeritus Professor David Smythe is reduced to the status of mere anecdotal ‘comments’ and described thus:
“Comments that the geology of Lancashire is not suitable for fracking have been provided by a professor who retired 18 years ago and is now living in France running a B&B. Evidence in the US and UK is to the contrary.”
This is no passive, benign summary but intentionally disparaging and erroneous rhetoric. To say that such commentary has no place in a supposedly impartial planning report is a huge understatement. In a subsequent submission to the LCC, objecting to this personal attack Professor Smythe rightly described the comment as “outrageous”:
“I am clearly identifiable. It is a calculated denigration of an expert witness. I took early retirement from the Chair of Geophysics at the University of Glasgow some 16 years ago, and spent around a decade from 2001 onwards consulting for a variety of oil companies.
“Projects lasted from a few weeks to a couple of years, involving studies of onshore and offshore India, Western Australia, offshore Madagascar, southern England (both onshore and offshore), and the UK-Irish margin of the NE Atlantic (during this period my wife, not I, ran a B&B for about three years).
“I have requested information from LCC under FOI legislation to discover the origin of the statement quoted above, as I have been unable to find it elsewhere in the published application documents.”
So the PO report dismissed the health impact data and analysis along with the serious concerns associated with the specific geology of the area. But what of the antecedents of the applicant on their prior sites? Surely that is worth considering in the public interest? Apparently not. The report stated that:
“Some of the objections maintain that planning permission should not be granted in view of the alleged poor track record of the applicant when carrying out operations at other sites within its control. With regard to the applicant’s previous operations and compliance with planning permissions a planning permission goes with the land rather than with the applicant and it is right to assume that the applicant would comply with conditions attached to any planning permission.”
So the public should feel safe in the knowledge that the PO simply assumes the applicant will start behaving.
More pro-fracking bias
When it came to dealing with representations from the public, on the New Road application the PO listed 11,127 letters of objection and only 200 in support. However, the report then deconstructed the objection letters into ‘individual’ (827) and ‘template’ letters, the clear implication being that only individual letters are valid. The same treatment was not given to the support letters. Why, I wonder?
A further example of pro-applicant bias can be seen in the PO report’s consideration of the ‘global warming potential’ of the Lancashire applications.
In the absence of a meaningful decarbonising national strategy we can only hope that planning authorities vet planning applications and pay particular attention to likely application greenhouse gas emissions and seek to protect the public interest.
Indeed, planning decisions must take account of the need to reduce GHG emissions but the fracking applications if they had passed would have increased emissions. The PO report, however, suggested that these emissions are “acceptable”.
Moreover, the report states that GWP figures play an important part in estimating the carbon footprint of the project, including its greenhouse gas emissions. But it then goes on to suggest that basing the GWP potential of the application on figures from out of date IPCC reports is “not unreasonable”.
This is an utterly ridiculous position to take unless of course you wish to assist the applicant in downplaying the likely impact of its proposed development.
It is wholly unreasonable to base the GWP of methane on the 2nd IPCC Report rather than the most recent 5th Assessment. To ignore the latest 5th IPCC report figures in favour of the now grossly out of date 2nd report is more than unreasonable, it is grossly inadequate.
Moreover, as climate scientists acknowledge, the IPCC reports themselves are the product of political watering down of the latest science. If we are to protect the public interest, with evidence based policy, of course using out of date reports is unreasonable. If my students did this with their coursework they would fail.
In short, the Planning Officer’s report on which councillors are meant to place much weight was not just deeply flawed but demonstrably biased in a favour of the applicant. The question is why?
We can only guess at the motivations behind writing a report in this manner but it certainly raises serious concerns about possible industry influence or political pressure or it may be that the door is about to revolve for the author? We shall see.
Legal shenanigans – blown open at the last minute
Aside from the problematic Planning Officer’s report, over the course of the two hearings the politics of fracking was plain to see, from the abundance of pro-fracking corporate rhetoric to the anti-fracking protests outside. What was more opaque, however, was the political intrigue that gave rise to the quite extraordinary scenes of disarray, confusion and contestation in the Council chamber last week.
Indeed, whilst the Roseacre Wood application was fairly straightforwardly rejected on the grounds of adverse traffic impact, the Preston New Road application was a different story.
Following a motion to reject that application proposed by Councillor Paul Hayhurst the DCC hearing was interrupted, apparently so that members could obtain ‘legal advice’ behind closed doors.
On resumption of the meeting the Committee members were clearly agitated and concerned by what they had heard. Councillor Paul Hayhurst later revealed that Council legal officers had put intense pressure on the committee to approve the application:
“We were told we must vote for the application. If we didn’t we would be breaking the law and we would be deemed irresponsible members. If it went to appeal and we lost, costs would be awarded against the authority.” Hayhurst then insisted the DCC publish the legal advice so that the public could see it.
The meeting was then adjourned until the 29th June. But it wasn’t until 10am the next day when the legal advice, written by David Manley QC, was finally published on the Council’s website, and worse still it was toned down and expressly stated that rejecting the application would not break the law.
In response, said Hayhurst, “I am absolutely appalled … This is not in the sort of vein that we were advised yesterday.“ In his view, the advice that members were given verbally and in private may have dissuaded some of the committee from refusing the application.
Meanwhile another Councillor (Green) suggested additional legal advice may be needed, which gave the residents groups an incentive to procure independent legal advice before the adjourned meeting took place on the Monday.
However, in correspondence with stakeholders LCC officials suggested no new information would be allowed to be circulated at the Monday hearing. Even so, local residents groups obtained independent alternative legal advice by late Friday afternoon and then sent hard copies to all Councillors to arrive Saturday morning.
Friends of the Earth also sought independent legal advice and, following pressure from the residents groups, eventually LCC officials relented and said that such new legal advice could be circulated at the Monday hearing.
Both sets of new legal advice assured Councillors they were within their rights to reject the application if they felt there was sufficient evidence to do so – they were not bound by the advice of the Planning Officer or Council’s QC.
It was a monumental effort by concerned local citizens, the national anti-fracking movement and interested NGOs, which ultimately provided the beleaguered DCC with the confidence and evidence to reject the application in spite of the PO’s report, LCC’s legal ‘advice’ and the attempts to control the flow of information to the DCC with arbitrary submission cut-off dates and the like.
The infamous redacted DEFRA report on fracking and the rural economy
A few DCC members, at various points in the proceedings, requested to delay the decision until a now notorious DEFRA report into the rural economy impacts has been fully published. The ‘Shale Gas Rural Economy Impacts’ report was published in heavily redacted form in March 2014, generating considerable protest.
Just after the LCC decisions on July 1st 2015, the full report was finally published. Despite the report being yet another poorly constructed selective ‘literature review’ it is of course interesting, if unsurprising, to see what parts the Government didn’t want the public or local planning authorities to see.
The report’s redacted sections highlight likely negative impacts which are balanced against the perceived positive benefits. For example, it suggests that losses for businesses which rely on a ‘tranquil environment’ (read non-industrialised) of tourists avoiding the area due to fracking operations may be off-set by increased hospitality to new workers; the extent to which such tourism loss can indeed be ‘offset’ is not even estimated.
The implication in the report, however, is that increased ‘hospitality’ to ‘new’ workers will be relatively minimal while tourism loss could be considerable depending on the nature of the site location.
For example, in this particular application area, one in ten jobs are in the tourist business with approximately 17,000 jobs in tourism on the Fylde with 3.1 million visitors a year generating around £220 million per annum, with around 30,000 jobs in agriculture generating £700 million a year.
Much of this would be jeopardised if fracking were to take hold in the area. It is highly improbable to say the least that the 11 jobs promised by Cuadrilla would compensate for the losses in tourism even at the exploration stage.
When it comes to traffic, of particular concern in the Roseacre Wood application. The redacted sections of the DEFRA report conclude that congestion impacts will be “negative but localised”. But just how local? The report makes it very clear that impacts will be over a relatively wide area (at least five miles) around each site, with as many as 36,735 vehicle movements per site. Far from insignificant.
The same ‘negative but localised’ conclusion is reached regarding house price impact:“House prices in close proximity to the drilling operations are likely to fall. However, rents may increase due to additional demand from site workers and supply chain.”
Again the negative ‘off-set’ potential here is vague to say the least and potentially higher rent for workers is not going to assuage the concerns of local homeowners and their potential to fall into negative equity.
This is the time to keep fighting!
It’s obvious why this section was redacted, but contrary to government propaganda it’s also obvious that house prices would fall near fracking operations due to the inherent impacts the industry will bring.
When it came to discussing specific environmental impacts the report author reached another unremarkable, but for industry and government, unpalatable conclusion (p.15):
“there is a risk that even if contaminated surface water does not directly impact drinking water supplies, it can affect human health indirectly through consumption of contaminated wildlife, livestock, or agricultural products and that leakage of waste fluids from the drilling and fracking processes has resulted in environmental damage.”
Going forward, as a taster of a new normal if the Transatlantic Trade and Investment Partnership goes ahead, it is deeply concerning that neoliberal austerity-ravaged Councils, such as LCC, will be under immense pressure to permit fracking operations despite the considerable risks of environmental and social harms, because under recent government guidelines if they reject an application and lose an appeal they will have to pay costs.
On the other hand, if other Councils, backed by committed and organised anti-fracking constituents, continue to object it may be that the prospects for a fledgling fracking industry in the UK are bleak.
Based on the evidence of negative social and environmental impacts I have seen over the years I certainly hope so.
Dr Damien Short is director of the Human Rights Consortium at the School of Advanced Study, University of London.
Also on The Ecologist: ‘Fracking is driving UK civil and political rights violations‘ by Jess Elliot & Damien Short.
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