Climate change made me do it: Activists press the 'necessity defense'

By Daniel Fisher | Jan 11, 2018

SPOKANE, Wash. (Legal Newsline) - On Sept. 23, 2016, a group of protesters blocked a Burlington Northern Santa Fe freight train carrying coal in Spokane, Wash., to prevent the earth from warming up. From a scientific standpoint, the action was absurd: Stopping a single trainload of coal could hardly have any more impact on global climate change than the fluttering of a butterfly’s wings in Tanzania.

As a piece of a political theater, it may have been more effective. The blockage by Rev. George Taylor and other members of groups called Veterans for Peace and Raging Grannies garnered widespread press coverage.

And the protest may trigger a legal revolution as well. In a hearing Thursday, a judge in Spokane is expected to hand down a written ruling allowing Taylor to argue he had no choice but to stop the train.

Judge Debra Hayes has already indicated she’ll allow Taylor, a Lutheran pastor, to present the so-called “necessity defense” to defeat state charges of criminal trespass. Her formal order would clear the way for him to bring in NASA scientists and other climate experts to try to convince a jury he had no reasonable alternative to halt human-induced global warming.

The Spokane trial is one example of how activists are retooling the centuries-old necessity defense to justify increasingly aggressive protests designed not just to raise awareness of the risks of burning fossil fuels, but to prevent their movement across the country. An old doctrine, the necessity defense allows defendants to argue they broke the law to prevent a greater harm from occurring, like the captain who ordered a customer’s cargo thrown overboard to prevent his or her ship from sinking.

“In some ways it fits very well with climate change," said Kelsey Skaggs, a Harvard-trained lawyer and executive director of the Climate Defense Project, which supports climate activists. Defendants must prove the threat of overwhelming harm, Skaggs said, and "If climate change is not that, nothing is."

Arguing against that position are state prosecutors and business organizations. They say the necessity defense should only be invoked in cases of imminent harm – think the ship captain, or prisoners escaping a burning jail -- not when protesters violate one set of laws to protest another.

The U.S. Court of Appeals for the Ninth Circuit summed up this argument in U.S. v. Schoon, a 1992 decision rejecting the necessity defense for protesters who spilled fake blood on the counters of an Internal Revenue Service office in Arizona, supposedly to prevent their tax dollars from supporting U.S. policy in El Salvador.

“The real problem here is that litigants are trying to distort to their purposes an age-old common law doctrine meant for a very different set of circumstances,” the Ninth Circuit ruled. “What these cases are really about is gaining notoriety for a cause.”

Federal courts have generally hewed to the reasoning in Schoon but state courts don’t have to. A judge in Minnesota last year allowed defendants in the so-called “Valve Turners” case to claim necessity when they used bolt cutters to break into pipeline facilities and turn valves to prevent the flow of Canadian tar sands crude across five states. Two of the protesters were convicted of felonies, but Judge Robert Tiffany in Clearwater County, MN, ruled in October that four of the valve turners could argue they were trying to “prevent imminent climate catastrophe.”

It was the first written opinion allowing the necessity defense in a climate case, Skaggs said, although a Washington judge allowed defendants to present expert witnesses in a 2016 case before ultimately refusing to allow the jury to consider necessity. The protesters in that case were convicted of trespassing.

Minnesota prosecutors are appealing Tiffany’s ruling and the State of Washington is expected to appeal any ruling allowing Taylor to present a necessity defense. If those appeals fail, the defendants will be allowed to present expert witnesses like former NASA scientist James Hansen and Martin Gilens, a Princeton scholar who argues ordinary citizens can’t have a meaningful impact on climate policy through the legislature because it is controlled by economic interests that oppose regulation.

By presenting experts who say human-induced climate change is threatening the world’s population and ordinary citizens can’t use the political system to prevent it, lawyers hope to convince jurors their clients had no reasonable alternative but to break the law.

Courts are understandably wary of this approach, since it doesn’t seem to have any practical limits. A Minnesota appeals court rejected the necessity defense by anti-abortion protesters who claimed they had no choice but to block a clinic’s doors to prevent fetuses from being killed. The court said the protesters were trying to use the judicial branch to achieve policy goals that are better left to the legislature.

Washington prosecutors declined to comment but in an August filing argued Taylor shouldn’t be able to bring in expert witnesses to convince jurors he had no choice but to block the BNSF train. Just as felons aren’t allowed to claim they need to carry illegal firearms for their own protection, prosecutors argue, Taylor shouldn’t be allowed to tell jurors his action was designed to prevent an imminent harm.

“It is unreasonable to believe that Defendant’s actions have any causal relationship or effect on the harm he was seeking to avoid,” the state argues.

Many judges have seized upon the imminence prong to reject the necessity defense, said Skaggs of the Climate Defense Project. Since human-induced global warming has been around at least since the dawn of the Industrial Age and is proceeding slowly, judges are inclined to rule that jurors can’t hear evidence immediate action was needed. Climate activists argue warming is happening right now and needs to be stopped immediately.

Regardless of how Taylor fares, the necessity defense is likely to remain an option for protesters facing state criminal charges. An infrastructure of legal theorists has grown to argue that protesters have a constitutional right to present facts that support their defense – the opening to bring experts who support their view of climate science into the courtroom.

The argument seems to be working with at least some state judges, even if federal judges remain skeptical their courtrooms are the proper place to debate policy over whether and how to reduce industrial CO2 emissions.

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