By Dan Wilcox, Senior Notes Editor, Vermont Journal of Environmental Law
Upcoming cases will provide U.S. justice system first glimpse of juries’ taste for climate action necessity
On October 11, 2016, in an effort known as #ShutItDown, a group dubbed the “Valve Turners” traveled to five remote locations in North Dakota, Minnesota, Montana, and Washington, cut through locked enclosures, and turned the shut-off valves on five pipelines carrying tar sands oil from Alberta, Canada into the United States. The Valve Turners blocked 15% of U.S. crude oil imports for nearly a day.1 In court, they claimed the “necessity” defense.2
Long recognized in both American and English common law, the defense rests on the claim that an otherwise illegal act is legally excusable as necessary to avoid a greater harm. Often raised in emergency situations where illegal actions might save life or limb, the defense can also be controversial. Many civil disobedience activists in the 1960s and 70s attempted to use it to justify their illegal actions in protests over foreign wars or nuclear power, for example, but achieved little to no success.3 Courts were—and remain—skeptical that such acts can fairly be said to avoid or reduce the harm protested.4 Courts have also generally been unsympathetic to the claim that defendants lack alternative and legal means to redress the wrong.5
That could be changing, though, as modern-day climate activists like the Valve Turners vigorously protest industry and government inaction in the face of increasingly dire climate change threats. Although no U.S. court has yet allowed a jury to decide on a necessity defense for climate change activism, two such cases are pending in which the defense is planned and has been allowed: one in Washington (regarding railway protests),6 and one in Minnesota (a Valve Turners’ case).7
The decision to allow defendants to present the defense is itself important, regardless of the outcome. Judges have wide discretion to prevent or allow the presentation of the defense at trial.8 Powerful testimony can so emotionally sway juries in defendants’ favor that often when a judge allows defendants to present the defense, charges are simply dropped or settled.9 Thus, these two cases already represent a win for climate activists. But if a jury acquits defendants under the necessity defense, the result would have widespread implications.
Can it work?
In the 8th Circuit, where the Minnesota case will be decided, the defense consists in proving three elements: (1) there is no legal alternative to violating the law, (2) the harm to be prevented is imminent, and (3) a direct, causal relationship exists between defendant’s action and the avoidance of harm.”10 The North Dakota judge deciding the Valve Turners’ case found all three elements lacking.11 He noted the defendants’ failures to produce change through a “myriad of reasonable legal avenues,” which “might mean only that the will of the majority, legitimately expressed, had prevailed.”12 Further, he found that “actions that [merely] reduce the risk of a possible harm . . . do not fit the definition of imminent harm.”13 These holdings echo judges’ concerns from earlier civil disobedience cases. In deciding on necessity issues so closely related to systemic political choices, juries are essentially deliberating on policy issues, which implicates difficult questions of majority rule and separation of powers.14 The jury’s role is to try questions of fact, not deem legislative policy void or unwise.15
Nevertheless, inklings that judges and juries will agree with defendants that climate disobedience is legally excusable are cropping up. In 2008 an English jury acquitted six Greenpeace activists claiming the defense after the activists attempted to shut down a prominent nearby coal-fired powerplant.16 After hearing extensive expert testimony, the jury agreed that the carbon pollution emitted from the plant—equivalent to the 30 least polluting countries in the world combined—constituted an imminent threat excusing the protestors’ illegal actions.17
In 2013, Massachusetts District Attorney C. Samuel Sutter dropped charges against climate activists that had been granted the right and were prepared to present the necessity defense at trial.18 Sutter stated publicly about his decision at the time that climate change was “one of the gravest crises our planet has ever faced,” about which “the political leadership . . . has been sorely lacking.”19 That charges were dropped shortly after defendants were granted the right to present the defense, and that a District Attorney felt compelled to speak so plainly and critically of legislative inaction on the issue, are powerful indications of the doctrine’s potential.
These developments show climate change activism might more readily find a haven in the necessity defense than previous issues of civil disobedience. Despite the North Dakota judge’s hedging on whether climate change actually presents a risk, most courts now accept that climate change presents an imminent risk of significant, if not catastrophic, damage to health and property.20 And under many iterations of the defense, the action taken need not be designed to avoid the entire harm, but rather to in some way alleviate or reduce the risk.21 So actions taken to curtail some carbon emissions, but not all, might still suffice.
Finally, though defendants might still have other means to pursue change, the defense requires only a lack of reasonable legal alternatives—not any alternative at all.22 That defendants might still petition their congressional representatives or write a newspaper editorial decrying fossil fuel use does not itself preclude taking matters into their own hands. The legal alternatives must also be reasonable. Thus, governmental inaction could well combine with a reasonable exhaustion of alternative legal means to create a situation where direct action on climate change is legally excusable—especially as time runs out on meeting critical climate deadlines.
What does it mean?
In this context the necessity doctrine raises critical questions about the courts’ role and the citizen’s ongoing right to life, liberty, and property in the face legislative inaction. Climate change issues have cast doubt on our legal system’s ability to address systemic problems. Requirements for legal standing, courts’ reluctance to address “political questions,” and legislatures’ seeming inability to protect legal rights, lead many climate worriers to consider direct action. The necessity defense cases will provide those worriers with something to consider.
1 Jeremy Brecher, As Their Trials Begins, Climate Protecting “Valve Turners” Say “Shut It Down” Is “Necessity,” Common Dreams (March 10, 2017), https://www.commondreams.org/views/2017/03/10/their-trials-begins-climate-protecting-valve-turners-say-shut-it-down-necessity.
2 See, e.g., Memoranda Decision and Order Granting Motion In Limine, North Dakota v. Foster, No. 34-2016-CR-00186 (N.D. Dist. Ct. Northeast Jud. Dist. Pembina Cty. Oct. 6, 2016).
3 John Alan Cohan, Civil Disobedience and the Necessity Defense, 6 Pierce L. Rev. 111, 120-23 (2007), https://scholars.unh.edu/cgi/viewcontent.cgi?article=1093&context=unh_lr.
6 Washington v. Taylor, No. 6Z0117975 (Wash. Dist. Ct. Spokane Cty. Oct. 16, 2017). The trial is set for April 23, 2018. Defendants blocked a Burlington Northern Santa Fe rail line in protest of coal and oil impacts on health and global warming.
7 Minnesota v. Klapstein, No. 15-CR-16-413 (Minn. Dist. Ct. 9th Jud. Dist. Oct. 11, 2017). Trial was set for December 11, 2017 but was cancelled and the case is awaiting a new trial date. In Montana, a judge denied the Valve Turner defendants the opportunity to present the defense at trial, calling it a publicity stunt designed to “shift responsibility” to the government. Montana v. Higgins, No. DC-16-18 (Mont. Dist. Ct. Twelfth Jud. Dist. Choteau Cty. May 30, 2017). The North Dakota and Washington judges ruled similarly. North Dakota v. Foster, No. 34-2016-CR-00186 (N.D. Dist. Ct. Northeast Jud. Dist. Pembina Cty. Oct. 6, 2016); Washington v. Ward, No. 16-1-01001-5 (Wash. Sup. Ct. Skagit Cty. June 7, 2017). The Washington judge did, however, allow the defendant to testify at trial about his motivations for the action. The first trial ended in a hung jury and the retrial resulted in a burglary conviction.
8 Cohan, supra note 3, at 120.
9 Id. at 121.
10 U.S. v. DeChristopher, 695 F.3d 1082, 1096 (10th Cir. 2012). The North Dakota judge ruling on the Valve Turners case cited this 10th Circuit case for the rule.
11 Memoranda Decision and Order Granting Motion In Limine, North Dakota v. Foster, No. 34-2016-CR-00186 (N.D. Dist. Ct. Northeast Jud. Dist. Pembina Cty. Oct. 6, 2016)
13 Id. (emphasis in original).
14 See Cohan, supra note 3, at 122.
16 John Vidal, Not Guilty: The Greenpeace Activists Who Used Climate Change as a Legal Defense, The Guardian (Sep. 10, 2008), https://www.theguardian.com/environment/2008/sep/11/activists.kingsnorthclimatecamp.
18 David Abel, Bristol DA Drops Charges, Says Protestors Were Right, The Boston Globe (Sept. 8, 2014), https://www.bostonglobe.com/metro/2014/09/08/activists-drops-charges-case-blocked-coal-shipment-power-plant/sUpBpGxzxAz3E2Vr5RFQQM/story.html.
20 See, e.g., Order Denying Motion to Dismiss, Juliana v. United States, 217 F.Supp.3d 1224 (D. Oregon, Nov. 10, 2016) (holding plaintiffs claim that defendant federal government had violated a substantive due process right to a stable climate by subsidizing and permitting fossil fuel extraction and use was plausible).
21 Cohan, supra note 3, at 134. See also Washington Environmental Council v. Bellon, 732 F.3d 1131, 1143-44 (9th Cir. 2013) (creating a distinction between greenhouse gas emissions with a scientifically discernible effect on global warming from those with a “scientifically indiscernible” effect).
22 United States v. Bailey, 444 U.S. 394, 410 (1980). See, e.g., People v. Gray, 571 N.Y.S.2d 851, 860 (N.Y. Crim. Ct. 1991) (rejecting the view that democracy always creates legal alternatives to problems arising from bad policies). But see United States v. Schoon, 971 F.2d 193 (9th Cir. 1991) (holding that “[i]ndirect protests of congressional polices can never meet all the requirements of the necessity doctrine.”)