The Climate Necessity Defense: Acquittal of Climate Change Stopping Crimes

Ken Fowler

As the climate crisis continues to ravage the planet and government action remains limited, some people have resorted to extreme measures to draw attention to the problem. Some of these actions include blocking barges full of coal from leaving port, fraudulently bidding on oil and gas leases, and turning off transcontinental oil pipelines. Many of the individuals who commit such acts have faced criminal prosecution. In an effort to acquit such individuals, there has been a wave of introductions of the climate necessity defense. Although yet to be successfully used to achieve an acquittal in a federal court, two state courts have accepted the climate necessity defense, and it has the promise to succeed in the future.

The climate necessity defense is derived from the necessity defense that has been brought up in historic civil disobedience movements. A successful necessity defense must include the following four elements: (1) a harm that would result from obeying the law that would have significantly exceeded the harm caused by breaking the law; (2) a problem to which there is no legal alternative; (3) the respondent must have been in danger of imminent physical harm; and (4) a direct causal connection between the law(s) being broken and preventing the harm. This defense has been brought in a variety of contexts including individuals prosecuted for protesting United States involvement in El Salvador and humanitarian workers prosecuted for leaving water near the U.S.-Mexico border for migrants. The necessity defense was not allowed in these contexts for failure to show the absence of a legal alternative, imminent physical harm, or a direct causal connection between the laws being broken and the harm.

For those bringing the climate necessity defense, the biggest hurdles to asserting the climate necessity defense are the elements of imminent threat and no legal alternative. To satisfy imminent threat,  a defendant needs to establish that their protest actions mitigated more severe harms that would have otherwise occurred. To satisfy no legal alternative, a defendant must prove that they have tried other legal avenues to stop climate change and that those options are not viable.

However, the recent cases of Minnesota v. Klapstein and Washington v. Taylor provide promise for climate activists to overcome these hurdles in the future.

Klapstein established a framework for satisfying the elements of imminence and harm of the climate necessity defense. In this case, three climate activists were charged for cutting a hole in a fence of an Enbridge tar sands pipeline facility in 2016.  Although the climate activists intended to turn off the pipeline themselves, the company shut down the pipeline before the defendants were able. The defendants raised the climate necessity defense. In their motion, the defendants cited governmental and scientific papers as well as Supreme Court opinions to show that harms from climate change were mitigated by their actions, and the harm from the pipeline significantly outweighs the harms of shutting down the facility. They also cited climate scientists to show the imminence of climate change and that every incremental decrease in fossil fuel emissions leads to a decrease in the damaging effects of climate change. The court granted the defendant's request to present a climate necessity defense. On the eve of the trial, however, the judge disallowed all expert testimony related to climate change and civil disobedience. Even without presenting the climate necessity defense, the defendants were acquitted of all charges when the court held that the prosecution had failed to demonstrate that the defendants had caused any damage to the Enbridge pipelines. Despite the climate necessity defense not going to a jury, the activists created a framework to establish the imminence of climate change and that every mitigation effort can help save the planet. Their strategy can be used in future cases to satisfy the harm and imminence elements of the climate necessity defense.

Taylor led to a holding that climate protesters may have no legal alternatives to their civil disobedience. In Taylor, climate activist Reverend George Taylor blocked oil and coal train tracks in Spokane, Washington and was arrested for trespassing and obstructing or delaying a train. During his trial in October 2017, Taylor received court approval to present a climate necessity defense, and the district court held that Taylor met the burden of proof of all four elements of the climate necessity defense. His pre-trial showing of necessity evidence included testimony from a climate scientist and experts on civil disobedience and emergency response. The prosecution appealed the decision and the issue went to the Washington Supreme Court, which affirmed the decision of the district court. In their opinion, the court stated that the legal alternatives available to climate protesters may not be “truly reasonable” and was a question for a jury. This holding establishes that the climate necessity defense should be heard by a jury and provides a framework for others to show that there may be no legal alternative available for climate activists.

The cases of Taylor and Klapstein give the activist community valuable insight into how to set a climate necessity defense precedent in the future.  For a successful climate necessity defense to be used to acquit a defendant, more cases need to be brought, preferably in state courts where the defense has already been recognized. Once the defense is successfully used in one state, it can be used as persuasive authority in others.

The climate necessity defense succeeded in the United Kingdom in 2008 and in a case involving civil infractions in West Roxbury District Court in Massachusetts in 2016. These victories, in addition to the climate necessity defense being recognized by two state courts in criminal contexts, show promise of the defense being used in the near future. If climate policy stays the same, protesters will continue to put their bodies on the line. If that continues, and there is no change in laws, protester arrests will continue, protesters will continue to raise the climate necessity defense, and one day the climate necessity defense could thrive.