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 US 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 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 US policy in Central America. 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.
This article has been excerpted from: ‘Do Climate Activists Have a Legal Justification for Civil Disobedience’.