Environmental and community groups have sent a legal letter, seen by The Independent, to notify the business secretary of their intention to seek judicial review of his decision, on the grounds that it was “unlawful” to reverse the 2019 ban on the controversial gas extraction method without fresh scientific evidence to prove it is safe.
The move by Friends of the Earth, Talk Fracking and Preston New Road Action Group comes as MPs vote on a Labour bid to ban fracking “once and for all” through a parliamentary vote.
Sir Keir Starmer’s party is calling on Conservative MPs to back a motion on Wednesday which would guarantee time in the Commons for a bill to outlaw the practice permanently.
They believe the procedural move will prevent Liz Truss from adopting the usual government practice of abstaining on opposition motions – forcing Tory MPs to be answerable to their constituents for voting for or against the tabling of the bill.
Shadow climate change secretary Ed Miliband said: “Conservative MPs have a simple choice – do they break the manifesto commitments they made to their constituents and allow the government to impose expensive, unsafe fracking on communities that do not want it, or will they support Labour’s ban on fracking once and for all?
“Labour is standing up to Liz Truss’s unjust charter for earthquakes, including her plans to outsource decisions about local consent to fracking companies, because fracking would make no difference to energy prices, and would risk the health of local communities, nature, and water supplies.
“Every Conservative MP who opposes fracking must now put country over party and support Labour’s ban on fracking.”
The 2019 Conservative manifesto pledged not to lift the moratorium unless “the science shows categorically it can be done safely”.
A government-commissioned report by the British Geological Survey (BGS) suggested more data was needed, but Ms Truss’s administration nonetheless tore up the commitment, declaring that fracking can go ahead in areas where it has community support. No detail has yet been produced on how the community’s views will be established.
Friends of the Earth said the failure to wait for scientific evidence was at the heart of the legal challenge.
The groups argue that the 2019 moratorium created a “legitimate expectation” for the public that the ban would not be lifted unless there was “compelling new evidence” showing that fracking was safe and concerns around seismic activity had been addressed.
They say that the government failed to meet its duty to consult the public before a significant policy shift in overturning the moratorium, to take into account the advice of its independent climate advisors or to consider net zero climate targets, in a way which made the decision “disproportionate, unfair and irrational, and as a result unlawful”.
Will Rundle, head of legal at Friends of the Earth, told The Independent the letter gave Mr Rees-Mogg a final opportunity to reverse the “disastrous” policy or face judicial review.
“Time and again people have been promised no more fracking unless it could be carried out safely and sustainably, without putting communities at risk of unpredictable earthquakes,” said Mr Rundle.
“The government first made this commitment in 2019, then again as part of its election manifesto and most recently within the British Energy Strategy.
“Despite all this, the business secretary has broken his party’s promise. Fracking for gas is, once again, being put above the wellbeing of communities threatened with it where they live, and the climate which will only deteriorate further if it goes ahead – something none of us can afford.
“We consider this disregard for people and planet, as well as the betrayal of public trust, not only to be dishonest but unlawful. We’ve written to the minister to explain our reasoning and to urge him to reverse this disastrous policy or face legal action.”
Susan Holliday, spokesperson for Preston New Road Action Group, which successfully fought off a proposed Cuadrilla fracking site in Lancashire, said: “Residents living close to the site at Preston New Road know the impacts of fracking and have not forgotten how disruptive it is to their lives.
“Communities like ours should not have to endure the risks that fracking poses to health, wellbeing and our homes, especially when there are safer, more sustainable, alternatives available. We are ready to mount our opposition and see off fracking once again.”
The groups’ lawyer, Rowan Smith of solicitors Leigh Day, said: “The government’s promise could not have been clearer: no fracking, unless proven to be safe.
“The secretary of state is still apparently concerned about safety, but has reassured Parliament that fracking can go ahead nonetheless, despite no consultation with local communities affected and no evidence to support that position from either the British Geological Society or the Committee on Climate Change.
“The latter advised that fracking is not compatible with Net Zero, a rather unsafe position to be in, unless certain tests have been met. Yet such tests have been completely ignored by this government. This is why our clients consider that the government has acted unlawfully and have written to ministers to demand a U-turn.”