Drilling at Balcombe must go ahead. Law breakers must not win.

Celebrity opponents of the drilling operations in Balcombe who include Bianca Jagger, Vivienne Westwood, Russell Brand and even, God help us, the neo-fascist Nick Griffin, are celebrating Cuadrilla’s decision to “temporarily suspend operations” in the face of the potential disorder that they fear may be imminent.

Leaders of the anti-fracking demonstrators have called for “civil disobedience,” – what is otherwise known as breaking the law – to stop the drilling permanently. The protesters have set up a camp on private land from which to co-ordinate their campaign. They do not have the landowner’s permission. The certainty in the rightness of their cause appears to have led some to consider themselves above the law.

It is of crucial importance that their campaign does not succeed.

Whether you like it or not – obviously the demonstrators do not – we need oil, we need gas and for that matter we still need coal. George Orwell put it well, albeit in words that are redolent of the 1930s when coal, rather than oil or gas, was still the most important fuel:

In order that Hitler may march the goosestep, that the Pope may denounce bolshevism, that the cricket crowds may assemble at Lord’s, that the Nancy poets may scratch one another’s backs, coal has got to be forthcoming.”

Coal use may have declined in Europe but it has not yet gone the way of Hitler, Bolshevism and the Nancy poets. Nevertheless, were Orwell alive he could still point out that for the protester to travel down on the train from Victoria, the Friends of the Earth official to draft a press-release, the environmental blogger to hunch over his computer and the Greenpeace twitterer to tweet with his i-Phone, fossil fuels have got to be forthcoming. And once the autumn storms begin the self-righteous busy-bodies living under canvas as unwelcome squatters on somebody else’s land will find that they need them too.

It may be that given vast investment and sufficient time, wind and solar energy could eventually replace fossil fuels but it hasn’t happened yet and it will not do so for the foreseeable future. We could, of course, make a choice to abandon them tomorrow. If we did the few who managed to survive the horrendous famine that would then ensue would have to revert to living in an impoverished pre-industrial society. It would be a decision that would make Stalin’s collectivisation of the farms look like an act of wise statesmanship.

But there is nothing rational about this campaign. Consider the statement put out by Friends of the Earth yesterday:

The drills may be paused at Balcombe, but as long as the Government gives frackers the green light, the huge threat to local communities and the environment remains.

“The benefits of fracking have been over-hyped. There’s plenty of evidence it won’t lead to a new era of cheap fuel, but it will pump more climate-changing pollution into our atmosphere.”

Considering how many half-truths and untruths Friends of the Earth have managed to pack into those 60 words I hardly know where to start, but their interpretation of the law is as good a place as any. The Government has not “given the green light” to frackers. Anyone who wishes to drill for oil or gas, by fracking or otherwise, still needs to make a planning application which is then dealt with by a local authority planning committee. There are further complex legal and regulatory procedures which any drilling company needs to go through, including obtaining a licence to drill from the Department of the Environment and Climate Change, an Environmental Permit a water extraction licence from the Environment Agency, and the co-operation of the Health and Safety Executive before it is allowed to begin operations. The Government has expressed support for fracking in general and even announced tax breaks to encourage it but it has not, and cannot, simply “give frackers a green light.” In order to do so it would have to change the planning laws. Mr Cameron, whose hitherto most memorable venture into energy policy was to erect a wind-turbine on his Notting Hill home, will put his new enthusiasm to the electoral test where it will be judged, as these things should be, by the voters rather than by celebrities and self-appointed environmental guardians.

In this case Cuadrilla has gone through all the necessary legal procedures. It has obeyed the law, won its case and obtained permission. The protestors have lost and, at least in some cases, intend to use “direct action” to reverse that defeat.

Putting legal issues aside, the rest of the statement is equally misleading. The proposed well at Balcombe is not intended to be used for fracking at all. What is proposed is a conventional oil or gas well, and if at some point in the future it were intended to extract by fracking further permission would be required. Not that that detail really matters to Friends of the Earth who are almost equally opposed to conventional oil and gas.

As for being in any way a “threat to local communities” all the evidence is that where onshore gas or oil drilling has taken place in the south of England it has brought those communities many benefits. To take just one small example: even the small well at Humbly Grove near Alton in Hampshire provided jobs for 37 local people up till 2005. Sadly for them it has now closed, although some of the infrastructure has been converted into a gas storage facility which continues to provide welcome employment. And employment is only one of the benefits that will obtain to “local communities” if fracking takes place nearby. The shale gas industry has pledged to give £100,000 at the exploratory stage as a one off payment to any community where fracking occurs. Oil companies will also give 1% of the revenues during the productive period of the wells. Of course the promise has been denounced as a “bribe,” and there may be questions about how it will actually be distributed, but only a Friends of the Earth fanatic could construe this bounty as “a huge threat to local communities.

What about the “threat to the environment,” as Friends of the Earth put it, from fracking? If we discount the fear of damaging earthquakes and tap-water catching fire, which are now so completely discredited as to be not worth addressing, there seem to be three main scares. First, that the countryside will be industrialised, secondly that water will be polluted and thirdly that climate change will be accelerated by the use of shale gas.

There have already been 144 production wells and 157 exploration wells in Southern England from Kent to Dorset.  All of these are conventional wells of the sort being proposed at Balcombe.  I grew up in and now work regularly in Hampshire and have spent much of my leisure time walking my dog through its beautiful countryside, especially in the area around Winchester and Stockbridge where most of the Hampshire oil extraction takes place. So discretely are the wells located and so unobstrusive are they that I never noticed a single one. If there ever was any local objection to the wells it was quickly rendered ridiculous by the fact that patently none of them has done any harm at all. In fact over the UK as a whole there are over 2000 such facilities, pumping away unobtrusively and making us all better off. They may, at present, produce only a tiny fraction of our total energy needs but then so do the largely useless wind turbines, beloved of the environmentalists which are by contrast highly obtrusive.

The danger of water pollution is grossly overblown. The fracking itself occurs far below the level of aquifers for drinking water. Nevertheless, as with many industrial processes there is a risk of pollution if the operations are not carried out carefully. A coal mine, for example, produces vast amounts of filthy water which needs to be pumped away and disposed of. According to the UK Environment Agency even after a mine has been abandoned the pollution continues:

Pollution from abandoned mines affects 8% of our rivers and in some areas, threatens important drinking water supply aquifers. The main pollutants are metals such as iron, zinc, cadmium, lead and copper, as well as sulphate and chloride. In addition to mine water discharges, diffuse water pollution arises from widespread waste heaps and the re-suspension of contaminated river sediments that are found many tens of kilometres downstream of the mine sites.
The legacy of pollution from coal and metal mines continues to impact the environment today even though most of these mines were abandoned long ago.

Not many fracking protestors are very keen on coal mines either, but the history of mining does provide a perspective from which to judge the risks of fracking. In contrast to the record of the mining industry, instances of proven groundwater contamination from fracking in the hundreds of thousands of wells which have already been subjected to the process are impossible to find. A study by the US Environmental Protection Agency into alleged contamination at Dimock Pensylvania, which featured in the notorious Gasland propaganda film, showed no significant contamination attributable to fracking and at a recent US senate committee hearing anti-fracking witnesses struggled to produce a single specific instance where fracking operations had unquestionably contaminated groundwater. Contamination of water is a remote risk which must be guarded against but given the huge benefits that fracking brings it cannot be regarded as a serious objection.

What of the suggestion that fracking “will pump more climate-changing pollution into our atmosphere?” In order to find this a compelling argument it is necessary to go through a series of mental contortions to explain away the fact that US carbon emissions have plummeted since fracking became widespread, largely due to the replacement of coal by fracked natural gas. Of course a correlation does not prove causation, although it may suggest it, but it certainly shows that increased fracking does not lead to increased greenhouse emissions.

And when Friends of the Earth assert “there’s plenty of evidence it won’t lead to a new era of cheap fuel” one is left dumbfounded by such idiocy. It is incontestable that it has done precisely that in America and, if sufficient gas can be extracted it will do so in Britain too.

Given the behaviour of environmental protesters on other occasions we must expect plenty of low level criminal behaviour: aggravated trespass, criminal damage and such like. Protesters have argued in the past, and are likely to argue if they are prosecuted for events arising out of events at Balcombe, that their behaviour is lawful under S.3 of the Criminal Law Act 1967 which allows a person to use reasonable force “in the prevention of crime….”

Greenpeace protestors successfully invoked a similar defence in 2008 when they were accused of criminal damage to a coal fired power station. On that precedent no doubt the argument will be made that in some way the extraction of shale gas amounts to a crime against the planet, and that action taken to prevent it is therefore lawful. Quite apart from the obvious point that no shale gas extraction is actually being contemplated at Balcombe at the moment, such an argument would be specious. The law often flounders in dealing with single-minded protestors, especially when they are permitted to make an unchallenged political case to a jury. The best one can hope for is that Crown Court and District Judges will be robust enough to stop political arguments being used as a defence to acts of vandalism. They will be somewhat assisted by the case of R v. Jones, Ayliffe & Swain [2006] UKHL 16 in which the House of Lords made clear that political judgements are for Parliament, and that otherwise unlawful acts cannot be justified by a disagreement with government policy. Despite this it is nearly inevitable that the courts will be used for such grandstanding and we must hope that juries will be sensible enough to reject it.

Although there is every chance that the Balcombe protests will fizzle out there is a possibility that they will grow into something more worrying. If we leave aside the petrol delivery drivers’ action that rattled Tony Blair, the last time we saw mass protests about energy policy was during the 1984 miners’ strike. The law then had to stand up to thousands of courageous miners fighting to defend their livelihood. Vicious and distressing though that conflict was, with hindsight we can see how vital it was, not just for our energy policy but for democracy itself, that the striking miners were defeated. For the sake of both our economy and our democracy it is no less vital that the protests at Balcombe are nipped in the bud.

Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

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