A challenge to the decision to grant a variation to an environmental permit has been dismissed in the case of R. (on the application of Friends of the Earth Limited) v The Environment Agency v Cuadrilla Bowland Limited.
Cuadrilla was granted an environmental permit relating to shale gas exploration in January 2015, which contained conditions limiting the daily injection of fracturing fluid to 765m3. In June 2017, Cuadrilla applied to vary their environmental permit in five ways, including a proposed variation of this limit so that it became a limit of 765m3 per hydraulic fracturing stage.
During the consultation on the proposed variation, the Claimant submitted representations regarding the potential increase of flowback fluid produced as a result of the variation, and to argue for the consideration of alternative techniques which would maximise the rate of flowback fluid re-use.
In December 2017, the Environment Agency issued a varied permit notice, outlining that the limit variation would not increase risk, but would bring the wording in-line with the approved Waste Management Plan.
The Claimant challenged this decision on the grounds that no consideration was given to whether alternative techniques would constitute best available technique (BAT) for the treatment and re-use of flowback fluid in the varied permit; the Agency did not encourage emerging techniques when granting the variation; and the Agency did not consider the Claimant's original representations.
The grounds argued a breach in the Agency's duties, especially regarding whether the Agency had a duty to consider what amounted to BAT for flowback fluid. Having considered the parties' submissions, the legislation itself and evidence presented, Mr Justice Supperstone decided that the Agency had not breached its duties. As a result, the claim was dismissed and permission was granted.
