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As the Trump administration reverses federal action to combat climate change in the midst of unprecedented warming, climate activists are gearing up for a new wave of civil disobedience and direct action.
In recent years, climate protesters have sat in at the White House, blocked oil trains, and hung off of oil vessels. Such tactics secured (temporary) victories in the Keystone XL and Standing Rock conflicts, and have helped jump-start the growth of a new social movement.
But with the U.S. still on track to miss its commitment to the Paris Agreement’s target of 2 degrees Celsius warming, many climate protesters are attempting to extend their struggle to the courtroom. Arguing that their acts of civil disobedience were justified by the government’s failure to adequately address global warming, they seek acquittals based upon the common law defense of necessity.
The so-called “climate necessity defense” has not met with much judicial success in American courts thus far. But a group of defendants will get another chance in a series of trials over the next few months as they attempt to justify the October “Shut It Down” actions that temporarily stopped all tar sands oil exports from Canada into the U.S. (In February, the Washington state trial of Shut It Down activist Ken Ward ended in a hung jury. He will stand trial again in May.)
Looking back on the history of the necessity defense and its use in political cases — and considering the state of climate change politics — there’s good reason to think that the climate necessity defense’s moment has come.
The Long History of Necessity
The common law — the collection of precedents, norms, and legal traditions that originated in medieval England and which forms the fabric of our legal system today — has long allowed for some wiggle room to justify lawbreaking.
For example, a ship captain may destroy precious cargo to prevent capsizing in a storm, and a prisoner may escape from prison to avoid being raped. The logic of such cases is simple: sometimes you need to violate the law in order to prevent a greater harm, and you shouldn’t be punished for making the right choice.
Each jurisdiction has a different version of the necessity defense (while some have eliminated it altogether). But the most common version requires a would-be necessity defendant to show that 1) she faced a choice between two evils and chose the lesser evil; 2) that she acted to prevent an imminent harm; 3) that she reasonably anticipated that her actions would prevent that harm; 4) that there were no reasonable legal alternatives to her action. Often, if a defendant is unable to make a pre-trial showing of evidence on these four elements, the judge will prohibit her from presenting the defense to a jury.
In the 1970s, savvy political activists began applying the logic of necessity to political cases. Protesters who had trespassed at military facilities to challenge the Vietnam War and anti-nuclear weapons activists who had damaged warheads argued that their actions were legally justified, given that the minimal damage caused by their acts of civil disobedience was far outweighed by the harms of war and nuclear holocaust. In short order, the “political necessity” defense was picked up by anti-nuclear power, anti-pollution, and anti-abortion activists.
Although some courts have been reluctant to allow political necessity cases to go forward — judges cite the risk of allowing individual protesters to rampantly violate the law without sanction — the defense has often won when put before a jury. For example, in 1984, 44 protesters were acquitted of trespassing in a senator’s office to protest U.S. policy in Central America. In 1987, Jimmy Carter’s daughter won a necessity acquittal after disrupting CIA recruitment at the University of Massachusetts with Abbie Hoffman. A number of other state court victories were won with the necessity defense in cases involving nuclear power plants, anti-missile demonstrations, challenges to apartheid, and other political issues.
A Developing Defense
The first use of the necessity defense by climate activists came in 2009, after British protesters scrawled the Prime Minister’s name on a coal plant smokestack to protest inaction on climate change. Their trial featured testimony from renowned atmospheric scientist James Hansen, and the defendants described the intransigence of government actors in the fact of global warming’s well-documented dangers; they were acquitted on all counts.
The results have not been so favorable for American climate necessity defendants, although their efforts have generated significant attention to their cause. In 2009, student Tim DeChristopher disrupted a Bureau of Land Management drilling rights auction. His climate necessity defense was rejected prior to trial by a federal judge, who ruled that DeChristopher was not facing an imminent danger and had legal alternatives to his protest.
In 2013, environmental activists Ken Ward and Jay O’Hara prepared a necessity defense after blocking a coal shipment to the Brayton Power Station in Massachusetts to draw attention to the dangers of mountaintop coal. On the morning of their trial, the local district attorney dropped all charges and delivered a courtroom speech endorsing their protest and calling for national action to address global warming.
Most recently, the so-called “Delta 5,” who blocked railroad tracks carrying crude oil transport in Washington, were allowed to present evidence related to necessity, putting witnesses on the stand who testified to the imminent dangers of climate change, the close relationship between the fossil fuel industry and environmental regulators, and the futility of many years of legal advocacy. Ultimately, the trial judge barred the jury from considering the necessity argument, reasoning that the protesters could have continued to lobby Congress for action on climate change. That decision is currently under appeal.
Judicial reluctance to the climate necessity defense has focused on two main factors: 1) the global and diffuse nature of climate change, which makes it unlikely that any single protest will halt its ravages; and 2) the availability of traditional political strategies such as lobbying, petitioning, and running for office to address energy and climate policy.
The first objection to the climate necessity defense is misguided because no defendant should have to prove that her action would entirely solve the centuries-long challenge of global warming. Instead, what the common law of necessity requires is that the defendant reasonably believed that her action would contribute to the prevention of harm. The influence of civil disobedience on pro-climate outcomes is well-documented: for example, sit-ins to block the Keystone XL pipeline helped diminish the amount of dirty tar sands oil being burned. Furthermore, the necessity defense simply requires that an individual’s actions be morally justified in light of the circumstances, not that her actions be perfectly calculated to entirely eliminate an impending threat. Given the severity of the climate threat, it is in society’s best interest to condone minor acts of lawbreaking that offer some possibility of averting the worst-case warming scenarios.
The second objection, that there are always reasonable alternatives to protest, is growing weaker in the fact of facts on the ground. Polar melting and ocean warming are occurring faster than previously anticipated, and federal policy still lags far behind what scientists agree is necessary to seriously address the problem. Decades of solid science on the atmospheric effects of gas, oil, and coal consumption, and of the need to switch to cleaner fuels, have not stopped the government from pumping hundreds of billions of dollars into the fossil fuel industry. With average citizens unable to challenge the political dominance of oil barons like the Koch Brothers, civil disobedience has become the only viable course of action.
In any event, the necessity defense is highly fact-dependent and requires judges to examine the specific efforts of the defendants in a given case. In many instances, those defendants have spent many years trying every legal option available to get the government to act. For them, continuing to appeal to fossil fuel-friendly legislators and regulators would be the very definition of unreasonable.
The Public Trust, the Constitution, and the Courts
Some recent climate-specific legal developments have made the argument for climate necessity even stronger.
First, courts have begun to accept that the government has a basic duty to protect the atmosphere from harm. This idea is based in the “public trust,” a legal doctrine originating in the Roman Empire that holds that the state must protect shared natural resources against degradation and appropriation. The public trust is the reason why shorelines and navigable waters generally remain open to the public — for example, the government can’t sell off half of the Mississippi River — and gives every citizen a right to sue for damage to these resources.
In recent years, the “atmospheric trust” doctrine, spearheaded by Professor Mary Wood at the University of Oregon, has made a compelling case that the public trust extends to the atmosphere and requires state and federal governments to curtail the extraction and combustion of fossil fuels.
Last year, a Washington state court ruled that the state government’s public trust duties were indeed implicated by climate change, and ordered environmental regulators to issue new greenhouse gas regulations that comported with the latest climate science.
In November, a federal judge in Oregon issued a similar opinion in Juliana v. US, with potentially far-reaching consequences for federal climate policy. If the government has a duty to protect the atmosphere and other resources effected by climate change, and if there is a clear gap between this duty and the government’s conduct in aiding and abetting the fossil fuel industry, then major changes in energy funding and extraction permits are required.
The Juliana opinion was also the first time that a court has held that constitutional rights are implicated by the government’s failure to adequately address global warming. Finding that there is a fundamental right to a “climate system capable of sustaining human life,” the federal judge ruled that the government may be required to develop a comprehensive climate action plan in order to avoid violating citizens’ rights to life, liberty, and property, and the equal protection of the laws.
These public trust and constitutional developments make the case for climate necessity more compelling. The political fight in which climate activists find themselves, rather than being a mere difference of personal opinion — should the government permit oil pipelines or not? —involves the violation of fundamental rights. As in many instances of civil disobedience throughout American history, climate activists are driven by a necessity to vindicate guarantees secured under the Constitution. And the notion that there are always reasonable legal alternatives to civil disobedience loses much of its force when you consider that the legislature and executive are involved in a decades-long, wholesale violation of public trust and constitutional rights. Courts do not follow the unconstitutional directives of the other branches; nor should individuals.
With moves like the recent approval of the Keystone XL pipeline, the politics of climate change are heating up. Climate activists are likely to engage in increased levels of civil disobedience, and courts will be faced with calls to recognize the climate necessity defense. Nothing in the common law of necessity prevents courts from granting such recognition; indeed, in light of the impending threat of global warming and recent developments in the law, climate activists may have an especially strong case for having their justification arguments heard.