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Thursday, 20 January 2011

Climate protests

Short piece for Halsbury's Law Exchange, published here.  I might write a longer version for CL&J for later this year.

Environmental protests have received many headlines recently, with trespass and criminal damage being committed at a number of power stations in an attempt to interrupt their operation or shut them down altogether.

The protestors have often sought to argue that they were acting to prevent the greater wrong of the carbon emissions of the stations in question.  Surprisingly, on at least one occasion (the Kingsnorth protestors in Kent) this argument has earned them an acquittal.  Perhaps equally surprisingly some lawyers have written in support of this (see eg this entry on the respected UK Human Rights Blog) as well as making other radical suggestions such as expanding the law of tort to include the whole planet as a ‘neighbour’ and so on.

Two points should be made in response.  First, as to the protestors, in a country with freedom of speech, freedom of association, a wide scope for lawful protest and, most of all, the ballot box, unlawful resistance can rarely be justified.

Secondly, it is laudable that lawyers follow and wish to act on environmental concerns.  It should be obvious, though, that issues such as whether or not any particular power station should continue in operation need to be decided as part of the national energy policy.  Formulating that policy involves highly complex questions requiring primarily engineering, chemical, economic and physical science expertise – how much power is needed, how much it is possible to generate and by what means, how much each option will cost, and what environmental effects will follow.  To be blunt, lawyers and judges are not particularly qualified to answer any of those questions – any more than scientists and economists are best placed to determine technical legal points.


  1. As Tom Bingham (then MR) said in a public law case about resource allocation (Reg. v. Cambridge Health District Health Authority, Ex parte B [1995] 1 W.L.R. 898):

    "Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can make."


  2. Cheers Alex. The other example I was thinking of concerned the covenant on social and political rights, which would seek to have justiciable all kinds of things such as the standard of social housing, the state's education policy etc, none of which are matters we would want to formulate by way of litigation ...