The campaign organisation, Friends of the Earth, has lost its legal challenge to one of key consents that allowed Cuadrilla to frack the UK’s first horizontal shale gas well.

In a ruling handed down this afternoon, a High Court judge rejected the organisation’s case that the Environment Agency (EA) acted unlawfully in issuing a permit for the site at Preston New Road in Lancashire.

The case centred on an application by Cuadrilla in December 2017 to vary its environmental permit for Preston New Road. One of the main changes was a request to frack more than one stage of the well in a day. Friends of the Earth argued this was an intensification of the process.

At a hearing in November 2018, the organisation said the EA had failed in its legal duty to promote the use of best available techniques in the treatment of flowback fluid.

This is the liquid which comes back up the well after high pressure pumping of fracking fluid. It is a major form of waste in fracking that can be reused or taken off site for treatment.

Cuadrilla estimated it would generate 22,000m3 of flowback from Preston New Road, based on an assumption that 40% of fluid would return to the surface.

Friends of the Earth argued that the EA should have considered the use of a technique called electrocoagulation. This could clean flowback, allow it to be reused and reduce the demand for fresh water, the organisation said.

Matthew Reed QC, for Friends of the Earth, said the permit variation was a substantial change and the EA should have carried out an assessment of the best available technique.

He said electrocoagulation had been used in the US. In the UK, Third Energy, which planned to frack at Kirby Misperton, had proposed using the technique.

Mr Reed also argued that the Waste Management Plan, which accompanied the permit, should have been be reviewed by the Environment Agency.

Tim Buley, barrister for the EA, said the assessment was not needed because the variation was a “pretty minor change”. It brought the permit into line with the wording in the waste management plan, which had been approved in 2015. He described the Friends of the Earth case as “hopeless” and said the EA did not regard electrocoagulation as a best available technique for flowback fluid.

Nathalie Lieven QC, for Cuadrilla, said the company was already using ultra violet to recycle all the flowback fluid and electrocoagulation was a no more appropriate technique. She added that the outcome of the permit variation would have been no different if the EA had done a best available technique assessment.

Ruling

Mr Justice Supperstone ruled this afternoon that the Friends of the Earth challenge was arguable. But he said the EA was not under any duty to reconsider electrocoagulation as a best available technique when it granted the permit. Nor was it required to reconsider or review the Waste Management Plan in this case.

He said:

“While the Agency consider electrocoagulation to be ‘a promising technique that could potentially be used alongside other water treatment processes in the treatment of flowback fluid’, it is ‘considered to be unsuitable as a treatment method at the Site [Preston New Road], which is bigger in scale that the operations being conducted by Third Energy at its KM8 site’”.

He said Friends of the Earth’s concerns about allowing multiple fracturing stages each day were not warranted because Cuadrilla was limited by its permit to an allowed volume of hydraulic fracturing fluid.

He also rejected Friends of the Earth’s case that the change to the permit was substantial and that the EA had ignored its representations on electrocoagulation.

The judge said:

“It is highly likely that the outcome for the Claimant [Friends of the Earth] would not have been substantially different if the conduct complained of had not occurred.”

Reaction

Friends of the Earth said this afternoon it would continue to scrutinise whether the EA was complying with its duty to ensure that fracking operators use the best available techniques.

The organisation’s campaigner, Tony Bosworth, said:

“We’re obviously disappointed that the judge has not upheld our challenge. However we will continue to scrutinise the fracking industry closely. The government claims that fracking has gold standard regulation but there are many examples of shortcomings in the actual regulations and problems in their implementation. “With scientists warning that there is little time left to get on top of climate change, the government is backing the wrong horse in supporting fracking. The future lies in clean, renewable energy”

A spokesperson for the EA said:

“We welcome today’s Court ruling, which affirmed that we correctly made our decision to approve changes to the environmental permit for hydraulic fracturing operations at Preston New Road, Lancashire.

“The Environment Agency is committed to ensuring that shale gas operations meet the highest environmental standards.”

Reporting on this case was made possible by donations from individual DrillOrDrop readers