The Necessity of the Necessity Defense

Last May, I watched the news reports about the girl who attached herself to the anchor chain of Shell’s Arctic Challenger as it sat in the Bellingham Bay—preparing to head to the Arctic to be part of Shell’s plan to drill for oil there, and to surely cause horrific destruction to the fragile ecosystem of the Arctic and magnify the impacts of climate change, including endangering indigenous people in the area. On the first day of news reports, it appeared as though this was an act of civil disobedience in the trend of the kayactivism that had seemed to take over the waters of the Northwest as people opposed Shell’s blatant exacerbation of climate destruction. On the second day of news reports, it became clear that this was more than just a media stunt. I continued to watch news reports as she remained until a third day—63 hours—before she climbed down from the Arctic Challenger. In those few days, Chiara D’Angelo held on to the Arctic Challenger because she believed that her action was doing more than just creating a news story; she believed that her body stood between Shell and moving closer to the Arctic.

Many months later, Chiara asked the Civil Liberties Defense Center to represent her in fighting back against a civil penalty of $20,000 from the Coast Guard, and her story laid the foundation for us to be able to present a climate necessity defense before a Coast Guard Hearing Officer. In order to establish a necessity defense in the Ninth Circuit necessity defense (also called “choice of evils” or “justification” defenses) a party must demonstrate: (1) they were faced with a choice of evils and chose the lesser evil; (2) they acted to prevent imminent harm; (3) they reasonably anticipated a direct causal relationship between their conduct and the harm to be averted; and (4) they had no legal alternatives to violating the law. United States v. Schoon, 971 F.2d 193 (9th Cir. Cal. 1992).

Normally a necessity defense works like this:

Step 1. Activist client provides some science and argument about why their action was a necessity. Use the standards we have provided above, link them to science and policy that upholds your position. Provide attorney with documentation. Bonus points if you can provide attorney with the name of a local leading scientist who might talk to attorney and/or testify on your behalf (pro bono). You are also welcome to have your lawyer call a CLDC lawyer to talk about the necessity defense.

Step 2. Criminal defense attorney files a “Notice” that you are going to assert a necessity defense to a jury of your peers—this normally has to be filed at least 30 days before your trial date, so bring this issue up early and be clear about your desire to use the defense.

Step 3. Normally the State will file an objection to your intended use of the necessity defense, and then a pretrial hearing is held in front of the judge. This is sort of like a pre-test. You must put on all your evidence and witness testimony to establish the 4 prongs of the defense (set forth above). Then the Judge rules whether you met that test or not. If the Judge does not believe you met the test, they rule against you and deny you the ability to put on a necessity defense in front of the jury. If they rule in your favor, which has only happened once in CLDC’s time of defending over 2000 activists, then you are allowed to repeat the hearing you just had (calling witnesses, etc.) in front of a jury.

Step 4. At the conclusion of all your evidence and testimony, the jury is provided with a jury instruction about how to apply the necessity defense to your case. Your lawyer is allowed to argue that you were faced with a choice of evils, such as: climate disaster that will cause untold suffering and devastation versus trespassing onto Shell property. Lawyer argues that you acted (e.g. climbed onto an anchor) to prevent an imminent harm (oils spills and destruction of the Arctic in order to provide grotesque profit to Royal Dutch Shell), and that your action would have averted that harm. Lawyer then argues that you had no legal alternative to breaking the law.

Step 5. The jurors deliberate and come back into the courtroom with a verdict. The verdict will be read and will say something like, “We find you not guilty of trespassing in the 2nd degree.” That means you won. You won’t necessarily know it was because of the necessity defense. You’ll just know that you won and were not convicted of a crime as a result of your act of resistance.

In Chiara’s case, there was an interesting twist to deal with: because the US Coast Guard took jurisdiction of the area where Chiara was arrested, instead of having a public court hearing in a civilian court with itsrules and laws, we were required to have a hearing before a US Coast Guard Hearing Officer, with rules dictated by the Coast Guard (a branch of the military that is within the Department of Homeland Security) and no response before the hearing about whether the Hearing Officer would actually consider the necessity defense.

We still await the decision of the Coast Guard Hearing Officer, but the victory of asserting a necessity defense based on the devastating impact of climate change has already empowered many more climate activists at this point. About two years ago, the CLDC developed a model template of a climate necessity defense for movement activists. It includes caselaw, argument, and a signed declaration from Dr. James Hanson (we share this freely with eligible lawyers and activist clients). A climate necessity defense has yet to be fully successful in the courts, but asserting the defense has become a tactic that can be used to help activists to feel empowered in challenging charges, to garner national media attention for campaigns, and to push courts further into the uncomfortable position of having to weigh corporate interests against the fate of life on this planet. While activists need to recognize that we can’t look to the courts to save the planet—as the government and corporations are intertwined as the State that’s killing the planet for the sake of power and greed—when activists are taking risks that bring them before a court, it’s nice to have a mixture of tools to use to fight back and hopefully reduce the impact that large fines and prison sentences can have on both individuals and communities.

The necessity brief also argues that climate change is already impacting the health of humans around the world, the survival of species and ecosystems, destructive weather patterns and forest fires, and promises more devastation to come. Our actions to stop the State from continuing this destructive path into a dim future alreadyneed to be taken out of necessity, whether courts recognize that or not, and we must keep pushing that urgency. Asserting a necessity defense should be but one reminder that we are faced with a choice of evils, we must act to prevent imminent harm, we should act in ways that have a direct impact on the forces destroying the earth, and we need to explore all alternatives to letting the State continue to profit off of climate change. Assert your rights, we’ve got your back.

Amanda Schemkes is Staff Attorney at the Civil Liberties Defense Center