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Opinion

March 13, 2017
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The defence of necessity

Opinion

March 13, 2017

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Is there anything people can do about climate change in the Trump era? The new American president has asserted that global warming is a fraud perpetrated by the Chinese to steal American jobs; threatened to ignore or even withdraw from the Paris climate agreement; and pledged unlimited burning of fossil fuels.

Whatever the details, Trump’s agenda will escalate global warming far beyond its already catastrophic trajectory. As we learn that 2016 was the hottest year on record, it sounds like a formula for doom.

On October 11, 2016, with the presidential campaign still raging, five climate protectors traveled to five secluded locations in North Dakota, Montana, Minnesota, and Washington state and turned the shut-off valves on the five pipelines that carry tar sands oil from Alberta, Canada into the United States. Their action – dubbed “Shut It Down” – blocked 15 percent of US crude oil imports for nearly a day. It will not in itself halt global warming. But it exemplifies a rising climate resistance that is challenging our thrust toward doom – and the temptation to succumb to climate despair.

The self-proclaimed “Valve Turners” have been charged with crimes ranging from burglary to criminal sabotage. (Another charge, “assemblage of saboteurs,” has been dropped.) One of them, Ken Ward, was tried January 30. A divided jury refused to convict him and the judge declared a mistrial. A re-trial has been scheduled for May 1. Trials for the others are anticipated to take place this spring and summer.

The Valve Turners are asking to present what is called a necessity defence. Though not widely known, this defence is well-established in Anglo-American common law; as early as 1550, an English merchant who dumped passengers’ cargo overboard was acquitted on the grounds that his action was necessary to prevent their ship from capsizing. While judges very often resist such necessity claims, since the 1970s hundreds of people who have committed civil disobedience in service of the public good have been acquitted on the grounds that their actions were taken to prevent a greater harm.

To make a necessity defence, the accused must prove that they believed their act was necessary to avoid or minimize a harm; that the harm was greater than the harm resulting from the violation of the law; and that there were no reasonable legal alternatives. As the state of Washington Supreme Court put it, the necessity doctrine provides that an act is justified “if it by necessity is taken in a reasonable belief that the harm or evil to be prevented by the act is greater than the harm caused by violating the  criminal statute.”

So first of all, the Valve Turners will have to prove to the court that the harm of climate change is greater than that of shutting a pipeline. They will seek to call expert witnesses who will have no difficulty laying out the catastrophic current and future effects of fossil fuel emissions. They can point out that in a recent federal court case the U.S. government acknowledged that climate change poses “a monumental threat to Americans’ health and welfare” by “driving long-lasting changes in our climate,” leading to an array of “severe negative effects, which will worsen over time.” As Ken Ward has put it, “In this context and with these terrible imperatives, my actions of walking across a field and cutting a fence chain are inconsequential and excusable compared to the ghastly effect of continuing to burn tar sands oil”.

There’s a lot of legal risk in lock-downs and valve-turning, of course, so it’s harder for many people – young people at the beginning of their careers, people of color, people with small children, undocumented people. But removing our money from banks that fund these projects – and telling them why we’re doing it – is something anyone can do.

 

This article was excerpted from: ‘As Their Trials Begins, Climate Protecting “Valve Turners” Say “Shut It Down” Is “Necessity”’

Courtesy: Commondreams.org

 

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