Can Breaking the Law Be a Legal Defense?

In two trials, environmental activists are using ‘climate necessity’ as part of their defense: they could only defend the planet by breaking the law.

When our grandchildren write the history of the climate movement, they’ll save a few pages for the trials of 2016.

First, they’ll focus on Snohomish County, Washington, where, last Friday, Seattle-area jurors found the so-called Delta 5 not guilty of obstruction for blockading a regional oil facility in 2014. The protest and the acquittal were notable as part of a growing wave of anti-oil-gas-and-coal citizen actions that has swept the country in the past few years, and the courtroom in Snohomish County was treated to a master class on why principled lawbreaking is just the tonic needed to cure our government’s woeful inaction on warming.

But what law students of the future will learn about the Delta 5 trial is something a bit more arcane, if no less momentous. For the first time in the United States, a jury heard testimony that defendants’ criminal actions were justified by “climate necessity”—that is, the argument that it’s better to break the law while getting in a few punches at the fossil fuel system than to sit back and lawfully watch the world burn. It’s a defense that’s been tried a handful of times, but in the U.S. has never made it past the judge’s bench slap. (One group of protesters used it successfully in England in 2008.)

Next, on to Cortlandt, New York, where the Montrose 9 are facing trial for disorderly conduct, after having shut down a construction site along the Algonquin gas pipeline in Westchester County in November 2015. Like their brethren across the continent, these activists have not only broken the rules to save the climate, they’ve done it loudly and proudly. If all goes well at their next court hearing, on Feb. 3, their trial will be the second ever—in less than two weeks—to air the climate-necessity defense in open court.

This is much more than just legal la-di-da. By slipping into otherwise mundane criminal proceedings a heavy dose of serious discussion regarding the ineptitude of our environmental caretakers and reams of nuanced scientific analysis of the crude-oil catastrophe brewing in the Northwest—just one of many causes of consternation for climate activists who understand that the time to abandon carbon-intensive energy is yesterday—the Delta 5 (and their legal team and armies of supporters) are helping to sound the death knell for the “business as usual” of the fossil fuel era. The Montrose 9 are issuing a similar rallying cry to defeat the pipeline pox currently plaguing the Northeast. Admitting that they’ve broken the letter of the law because the government has whiffed on the biggest crisis of our age, these defendants send a powerful signal that the casual destruction of the climate will no longer be met with complacence and silence.

In a last minute letdown in the Delta 5 case, the Snohomish County district judge barred the jury from actually considering the necessity defense. The cat was already out of the bag by then, though, and having at least heard the first American climate-necessity defense, the jury acquitted on the obstruction charge and convicted on trespassing. The defendants are appealing that conviction as well as the judge’s denial of their defense. In this case as in others that came before it, the judge decided that there were lots of things one should do to fight climate change besides engaging in civil disobedience—at least until the courthouse is underwater, presumably.

The activists aren’t buying it. As a pre-trial brief in support of the Washington protesters’ climate-necessity defense put it: “The expert witnesses, in conjunction with the testimony of the defendants, will … speak directly to the question of whether any reasonable legal alternative [to civil disobedience] existed, with the resounding answer being that no, it did not.”

No reasonable legal alternative to erecting a tripod over oil train tracks or blocking the authorized construction of a gas pipeline? It’s a radical argument, but it’s one that’s gaining steam in the climate movement. The ambitious rhetoric of the Paris climate talks and Obama’s coal plan notwithstanding, we’re still well on our way to an unrecognizably unstable planet, even as state and federal agencies continue to approve and lavishly fund oil, gas, and coal projects. (Shocking statistic #1: Since 2001, we’ve had 15 of the 16 warmest years on record. 2015’s at the top of the list). The very fact that the Delta 5 got away with arguing climate necessity for most of their trial, and that the Montrose 9 might do the same, suggests that their movement has shifted its political vision from polite lobbying and consciousness-raising to deliberate and eloquent disobedience—a shift of moral emphasis that puts climate dissidents in line with principled lawbreakers of the past.

Besides tracking the rapid evolution of the climate movement, the Delta 5 and Montrose 9 trials also serve as proof that the public at large is breaking with its government and corporate masters over climate politics. The defendants in these cases have wagered that it’s smarter to break the law first and ask for permission later—and they think that the American people will back them up. (Shocking statistic #2: According to the Yale Project on Climate Change Communication, one in eight Americans are willing to commit civil disobedience to fight global warming).

So far the bet looks good. Staging dramatic, formalized clashes between the climate values embodied by the law (fossil fuel extraction is a right, a healthy climate ain’t) and the climate values of the public (rapidly headed in the opposite direction), climate disobedients have already translated into legal terms a moral argument that would have been unimaginable 15 years ago. In Washington State, that legal argument half-worked at trial (necessity defense denied but obstruction charge tossed out) and there’s still the high drama of the appeal ahead. The first successful climate necessity defense might come next month in New York—and if not there, then somewhere else, and sometime soon. Suffice it to say that the tide is shifting.

As is so often the case with highly-touted legal battles and their small casts of adversaries, what goes down in the courtroom is just a synecdoche for much broader but harder-to-grasp conflicts in society at large. Climate necessity defendants are convinced that saving the climate requires drastic political reform, but that such reform is impossible without shattering the illusion of government accountability.

Take the Delta 5. A motley crew made up of a business climate consultant, teacher’s assistant, coffee house owner, retired music teacher, and house painter, they’d already petitioned legislators, submitted reports to their state Department of Ecology, and even written the president before blocking the BNSF rail yard. Ignored on all fronts, they decided that their only remaining option was to raise the temperature of political debate. So they set up a tripod over the railroad, locked their bodies to it, and got arrested for trespassing and obstruction. Then they took the battle to court and took advantage of the judicial branch’s stubborn attachment to notions like justice, fairness, and necessity. The basic idea: Turn the climate crisis into a moral and social crisis.

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Courts are practically the only place left where this sort of righteous appeal to the masses is possible. It doesn’t take an atmospheric scientist to count the number of major climate change bills passed by Congress (hint: fewer than one), and one need only consider the ongoing Oregon militia showdown to get an idea of how aggressively our government agencies protect environmental resources.

(Incidentally, the effort by those anti-federal activists to set up a sort of shadow government based on citizen grand juries parallels the approach of the climate necessity defendants: return environmental power to the people through the democracy of the courthouse. The difference? The two groups see this path leading to directly opposite endpoints: a Lockean fantasy of unprotected pasture, on the one hand, or a post-carbon community of careful stewards, on the other. Recent national reactions to these two Northwestern environmental showdowns suggest that the latter vision’s got the greater pull).

Time to turn, then, to the law, where there’s at least a glimmer of hope. Courts have tended to treat global warming like the paradigm-shattering, institution-shaking phenomenon that it is, and have prudently absolved themselves of responsibility. As the Supreme Court wrote in 2010 in AEP v. Connecticut, a major, multi-state lawsuit against carbon polluters: “Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order.”

On the administrative law front, environmental lawyers’ knees are shaking as they anticipate the high court’s ruling on the legality of Obama’s Clean Power Plan. Post-Paris, there’s some optimism that our esteemed justices will grasp the depth of the warming problem and the shallowness of Congress’ ability to deal with it, and give the stamp of approval. But an admonitory comment from Justice Scalia in a major 2014 climate case dealing with the EPA’s ability to regulate greenhouses gases—“When an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy’… we typically greet its announcement with a measure of skepticism”—suggests that we might not see our global warming woes solved with the snap of a judicial finger anytime soon.

So attorneys are trying new tactics. For example, a group of young plaintiffs recently sued the federal government for violating various alleged rights to a healthy climate, including the right to have the government hold the atmosphere in trust for the people. But perhaps the most promising route—at least in terms of inspiring new waves of activists, and of presenting the case for climate justice in the most basic, most irresistible terms available—lies with the climate-necessity defense.

Necessity defenses have worked—in the sense of getting acquittals and getting publicity—for numerous social causes in the past. Antebellum New England juries routinely acquitted fugitive slaves and their protectors. Abbie Hoffman and Jimmy Carter’s daughter, Amy, successfully argued political necessity after disrupting CIA recruitment at the University of Massachusetts in 1987. As a New York City judge wrote in 1991 in acquitting activists who had blocked the Queensboro Bridge to protest air pollution: “The defense does not legalize lawlessness; rather it permits courts to distinguish between necessary and unnecessary illegal acts in order to provide an essential safety valve to law enforcement in a democratic society.”

Abby Brockway, one of the Delta 5 defendants, echoed those sentiments a few days after her own trial, describing how Washington state agencies have failed to do their job with regard to climate change and crude oil: “They’re just trying to figure out how to approve the permit … These agencies are originally designed to protect the people and represent the people, but they’re not—the industry has taken them.” The solution? “We don’t have enough time to actually change these systems—so we have to create our own.”

It’s a pretty astute strategy. Tension-making as political praxis has a long domestic pedigree. A basic move of the early American patriots was to stage confrontations with the British authorities to foment anti-royalist fervor (think Boston Tea Party) and the civil rights organizers of the ’50s and ’60s carefully wove together moments of dramatic disobedience to present situations of racial crisis that could be grasped by the complacent American majority (think lunch counter sit-ins). In his “Letter from Birmingham Jail,” Martin Luther King Jr. put it this way:

“Just as Socrates felt that it was necessary to create a tension in the mind so that individuals could rise from the bondage of myths and half truths to the unfettered realm of creative analysis and objective appraisal, so must we see the need for nonviolent gadflies to create the kind of tension in society that will help men rise from the dark depths of prejudice and racism to the majestic heights of understanding and brotherhood.”

Climate activists blocking fossil fuel expansion and singing about a brighter future are nothing if not nonviolent gadflies. With our political system at a historical nadir of democratic accountability, there are few options for dealing with our addiction to fossil fuels—but one of them involves marching straight into the courthouse and giving the law a chance to self-correct.

An acquittal in a protest case doesn’t directly translate into emissions caps and carbon taxes, of course. But when juries waive punishment for illegal interference with the oil and gas industries, that means that our corrupt, climate-destructive power structure is starting to corrode. Since we can’t make change without changing policymakers, that’s a very good start.

The year’s just begun. Many more anti-fossil fuel actions are in the pipeline. With such an auspicious start already, there’s a good chance that this chapter of the history of the climate movement—the tale of resistance and rallying, of lawbreaking and liberation—will have a happy ending.

Ted Hamilton is a student at Harvard Law School and a freelance writer. He has worked on the climate-necessity defense as an intern at the Civil Liberties Defense Center and the Climate Disobedience Center and is a co-founder of the Climate Defense Project. He contributed legal research to the Delta 5 defense.