OLYMPIA, Wash. (Legal Newsline) - A climate protester who blocked train tracks to prevent oil and coal from being transported through Spokane, Wash., will be able to argue he had no other choice because other efforts to change energy policy failed, the Washington Supreme Court ruled in a decision that could protect other protesters from criminal prosecution under the so-called “necessity defense.”
Rev. George Taylor was among a group of protesters, including members of the Raging Grannies activist group, that blocked a Burlington Northern Santa Fe freight train carrying coal in Spokane in September 2016. Taylor was protesting the role of fossil fuels in accelerating global warming as well as the risk of derailment and pollution he said the trains raised to local residents.
Taylor was arrested and charged with criminal trespass. The trial judge allowed him to present the necessity defense, also commonly known as the “lesser evil” defense, under which he would tell jurors he had no “reasonable legal alternative” to blocking the train in order to avoid the greater harms of climate change and pollution. An appeals court reversed the ruling in 2018, splitting with another appeals court that allowed an activist “valve turner” to argue necessity in fighting his arrest for shutting down pipelines to protest global warming.
The Washington Supreme Court settled the question in a July 15 opinion written by Justice Susan Owens, unanimously ruling that Taylor has the right to argue he had no choice but to block the railroad after years of protesting had failed to achieve the results he wanted.
“While there are always alternatives in the abstract, an alternative that has repeatedly failed when attempted is not a reasonable alternative,” the court ruled.
Washington precedent establishes a four-part test for allowing the necessity defense, including whether the defendant believes it was necessary to break the law to avoid a greater harm, the harm wasn’t caused by the defendant, and no reasonable alternative existed. The Supreme Court cited the example of a hiker lost in a snowstorm who breaks into a cabin for shelter.
The appeals court that ruled against Taylor found that the defendant’s own belief isn’t the critical test for determining whether there are reasonable alternatives. The fact Taylor “submits his own belief that the political process is not currently offering the results he wants, then it’s not effective” doesn’t matter, the court ruled. “This belies the nature of a political system.”
The Supreme Court disagreed. Taylor provided evidence he’d spent 40 years trying to change environmental policy, sending letters and e-mails to politicians, speaking before the Spokane City Council and working on a local initiative to improve train safety.
“Most of those efforts have failed,” the court observed. “If the defendant offers evidence that they have actually tried the alternative, had no time to try it, or have a history of futile attempts with the alternative, they have created a question of fact for the jury regarding whether there are reasonable legal alternatives.”
Taylor also presented experts including Professor Tom Hastings of Portland State University, an expert on nonviolent resistance, who said peaceful civil disobedience is “essential to combatting climate change.” While Taylor and his fellow protesters had blocked the rails for 45 minutes, the court noted, they notified Burlington Northern beforehand to minimize any risk of accidents.
The Washington Supreme Court decision departs from doctrine in many courts under which the necessity defense only applies to imminent threats, not threats like climate change or a possible train accident that are disputed or difficult to predict. The defense has long been a fixture in English and American law, however, said Alex Marquardt, co-founder and staff attorney with the Climate Defense Project, who represented Taylor.
“What kind of behavior is necessary in response to the climate and ecological emergency, and how best to balance competing risks and harms, are questions that reasonable people can disagree about,” Marquardt said in emailed comments about the decision. “This ruling is significant in that it protects the right of criminal defendants to present evidence to a jury, and the right of the jury to make the ultimate determination of a defendant’s guilt or innocence based on that evidence.”
Courts have varied in how they treat the necessity defense. The Minnesota Supreme Court last year declined to reverse an appeals court decision that had the effect of allowing a necessity defense, although neither court explicitly endorsed the tactic. A trial judge later acquitted several valve-turners by granting a rare motion to dismiss charges after the state presented its case, saying not enough evidence was presented to convict.
Valve-turners in Montana and North Dakota weren’t so lucky, being convicted in both states. The North Dakota legislature is now considering a law that would make it a felony to damage or tamper with a “critical infrastructure facility” such natural gas processing plants and oil pipelines.
In 2018, a Boston prosecutor reduced the charges against 13 pipeline protestors who planned to mount a necessity defense, eliminating the possibility of a trial. But West Roxbury Judge Mary Ann Driscoll nevertheless found them not guilty for reason of necessity.