Climate change activists allowed to use 'necessity' defense after Minn. Supreme Court declines to hear appeal by state

By John Breslin | Jul 22, 2018

ST. PAUL, Minn. (Legal Newsline) – Climate change activists in Minnesota will be able to mount a defense that their actions were justified because they were designed to prevent a worse harm.

The Minnesota Supreme Court, without giving reasons, declined to hear an appeal July 17 by the state of Minnesota against two lower court decisions allowing the activists to mount a climate necessity defense.

They are charged with attempting to shut down a pipeline carrying tar sands oil from Canada, and cannot include evidence linking fossil fuels to climate change.

This followed appeals by the state of Minnesota against both a trial and appeals court. It is one a number of cases in various parts of the country where members of Climate Direct Action are attempting to use the necessary defense against charges stemming from a coordinated Shut it Down campaign.

As previously reported by Legal Newsline, defendants Annette Klapstein and Emily Johnston used bolt cutters to break through to a pipeline at Leonard, Minnesota, then shut down the pipeline valve in 2016. 

Johnston and Klapstein are accused of felony criminal damage to property, aiding and abetting felony criminal damage to property, and trespassing. They face a potential maximum penalty of over 20 years in jail and fines up to $40,000 if found guilty by a jury sitting in a Clearwater County District Court.

The Minnesota Appeals Court agreed "necessity is an effective defense to a criminal charge" if the harm done by defendants is "significantly exceeded" by the harm caused by the target of their action.

The defendants plan to introduce expert testimony on climate change, and the alleged need for civil disobedience and direct action.

Activists have secured a number of successes and defeats as they defend against their direct action. A decision in Massachusetts found the necessity defense is allowed, while other courts have rejected the argument.

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