An Intriguing Evolution: Is the 'Climate Necessity Defense' Permission to Break the Law?

Environmental activists employed “climate necessity” as a legal defense, claiming that they could only defend planet earth from climate change by breaking the law as it currently stands, all while pointing to a lack of any meaningful action by government officials.

In Snohomish County, Washington, a group named ‘Delta 5’ was found not guilty for obstruction by blockading a regional oil facility and BNSF railway tracks in 2014. The landmark "climate necessity" defense, asserted for the first time in the United States, was based on the idea that the defendants had tried all legal means of protest to no avail, and that civil disobedience was their last option. In other words, breaking the law was the better of two evils, and that interfering with the oil-train industry’s infrastructure is the best form of action to address the substantial harms caused by climate change.

As a procedural twist to the Delta 5 case, the judge barred the jury from being able to consider the necessity defense. Judge Anthony Howard found that the defendants did not exhaust all legal means for bringing about change in climate policy and railroad safety measures. The jury acquitted the defendants on the obstruction charge and convicted the five on trespassing. Nonetheless, the defendants are appealing the conviction, as well as the judge’s denial of their necessity defense.

This is not the first time the climate necessity defense has been employed on the world stage. A group of six Greenpeace climate change activists in 2008 used the same defense in England successfully after causing £30,000 of criminal damage at a coal power plant. The activists tried to shut down the plant by occupying the plant’s smokestack and painting the word “Gordon” on the chimney, justifying their actions under the theory that they were trying to mitigate the effects of climate change which would ultimately lead to greater property damage the world over. This was the first case where the argument of preventing property damage caused by climate change was asserted to lawfully acquit defendants in a court of law. A precedent setting case, to say the least.

If environmental activists have two things in common, it would be their catchy names and their successes in court defending themselves. We don’t know what the outlook will be for the ‘Montrose 9’ -- as they are facing trial for disorderly conduct in Cortlandt, New York, for allegations of shutting down a construction site along the Algonquin gas pipeline in November, 2015. The fearless nine committed their acts in a manner much like their Delta 5 counterpart. They will be the second group ever in the U.S. to assert the climate necessity defense in a trial.

With such a strong record of success, one is forced to ponder the message these activists are sending to the justice system, the oil industry, and the world. By openly admitting they have broken the law to make a statement against willful climate destruction and government complacency, a strong new paradigm is taking root -- one that is centered on favoring energy reform with the hope of sparing the planet’s health. The unfettered use of civil disobedience illuminates the more widespread shift in political posture that recognizes an unequivocal need to challenge government and its shortfalls when dealing with the climate problem. The actions of the Montrose 9 and Delta 5 confirm the old adage -- “It’s better to beg for forgiveness than to ask for permission.”

With such a profound disruption taking place in the law -- where juries may be asked to plumb illegal acts against global climate catastrophe -- it begs the question as to where the line will be drawn for the safe harbor defense of “climate necessity.” As more climate protests take place in 2016, the outcomes of new cases asserting the defense will establish more guidance and insight into the shifts in American jurisprudence.

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