COMMENT: by Scottish Energy News
Scottish First Minister Nicola Sturgeon is skating over thin legal ice in her possibly pre-judicial manifesto pledge about being ‘deeply sceptical’ about a domestic shale gas energy industry in Scotland.
She said that it would have to be proven beyond doubt that shale gas exploration does not pose a risk to public health.
These are the kind of comments which, if made by a local cooncillor in response to a local cooncil planning application about, say, a new road, housing scheme, supermarket development, wind farm, etc would rapidly find them in hot legal and political water…
But if a prospective on-shore exploration company, for instance, INEOS, decided to raise a judicial review of any prospective Scot-Govt. decision to permanently ban shale gas drilling, the case would be decided ‘on the balance of probabilities’ – which is the judicial bar in civil cases (which a judicial review would be) – rather than the ‘beyond reasonable doubt’ thresh-hold for criminal trials.
Moreover – and this is the point which the anti-wind farm NIMBYs are frequently oblivious of – an owner of land has the right to add to, to exploit, to develop and adapt his land (ie there is correctly a presumption in favour of development) unless there are previously agreed and enacted rules or regulations preventing such development and which are based on ‘fair and reasonable’ principles.
As any health and safety and/or environmental / operating regulations which would be, if not already, in place, would operate on the basis of ‘fair and reasonable’ legislation, this too is a civil court test.
Another basic legal principle is that the law cannot prosecute people for what they ‘might’ do (at least in Scots civil law, never mind the logically questionable terrorism ‘thought crimes’).
So if a land-owner holds or obtains the right licences and permissions from the state/ government, and operates safely within a prescribed health and safety and environmental regime, there is a presumption in favour of (shale gas) development.
By so clearly setting out such a probatively prejudicial position – effectively pre-judging the outcome of her own government’s (second) independent scientific review of onshore drilling – Sturgeon and her SNP government are on thin legal ice.
See also: Euro-MPs welcome imports of US shale gas into Scotland/ EU-bloc