Above Photo: (Photo: Gil Megidish; Edited: LW / TO)
Who Will Courts Defend?
This month a group of climate activists were convicted in district courts in Mount Vernon, Washington, and Wawayanda, New York, for committing acts of civil disobedience against fossil fuel infrastructure. Each defendant (one in Washington and six in New York) had attempted to present a “climate necessity defense,” arguing that their nominally illegal actions were justified by the threat of climate catastrophe — in other words, that the real crime is continuing to pollute the atmosphere, not interfering with corporate property. The courts weren’t having it: The activists were convicted on June 7 on charges of varying seriousness, although they anticipate appealing their rulings.
The activists aren’t hanging their heads, though. Instead, they’re doubling down on their civil resistance mode of political activism. In doing so, they’re joining a growing movement of direct action climate dissidents across the country who have taken to the streets, the pipelines and the coal trains to do what the government won’t: confront an industry that poses an existential threat to human civilization.
The Washington trial began with an October 2016 protest in which Ken Ward — a long-time environmental leader who pursued conventional climate policy avenues for decades before turning to civil disobedience in recent years — entered a Kinder Morgan pipeline facility in Anacortes, Washington, and turned a valve to cut off the flow of tar sands oil entering from Canada. His action was coordinated with other “Shut It Down” activists in Montana, North Dakota and Minnesota, who were responding to a call for action from the Standing Rock encampment, and together succeeded in temporarily halting the flow of all tar sands oil into the United States. At the time of his protest (which was preceded by a warning call to pipeline operators), Ward called upon President Obama to make this interruption of tar sands oil permanent, citing the fuel’s particularly carbon-intensive nature and the need for much more aggressive federal action to curb emissions.
In the New York case, the six activists blocked a construction site for a Competitive Power Ventures natural gas-powered electricity plant. Plans for the plant have gone ahead despite ample evidence of inadequate environmental reviews and the plant’s obvious detriment to the climate. In his decision finding the activists guilty, the judge acknowledged that “the pollution expected to be caused by this power plant once it is operational would be significant and contrary to New York State’s policies on global warming.”
Courtrooms Now Battlegrounds in Struggle Against Fossil Fuel Status Quo
These trials are part of a growing wave of climate protest cases in which activists have taken their on-the-ground resistance into the courtroom. Climate necessity defendants have made the justification argument in Utah, Massachusetts, Michigan, Washington, New York and Oklahoma, taking as target both the physical infrastructure of the fossil fuel system — pipelines and coal trains — and its legal infrastructure — industry-friendly environmental agencies and criminal laws that protect polluters. In nearly all cases, judges have decided prior to trial that the defendants have no right to present their necessity evidence to the jury, perhaps fearing that, as often happens, juries will accept political necessity arguments. Being blocked from presenting the necessity evidence then results in nearly unavoidable guilty verdicts for activists who have admitted to the charged conduct.
There are two important contexts to consider when assessing the importance of these verdicts.
First, the criminal prosecution of nonviolent climate activists — which, in the case of the Ward trial, featured felony charges that are rarely, if ever, used against protesters — is part of a broader criminalization of dissent that has accelerated since the election of President Trump. Many states have recently passed reactionary laws restricting the right to protest, including some that specifically target opponents of the fossil fuel industry, and prosecutors in Washington, DC, are seeking unprecedented sentences against participants in the peaceful protests on Inauguration Day. This shared exposure to government repression will likely strengthen the bonds of solidarity between climate activists and other social movements, and will underscore the point that climate change is as much a political issue as it is a scientific one.
Second, although the Shut It Down and Wawayanda protests took place when Obama was president and the prosecutions were commenced months ago, it’s significant that their outcomes were decided just days after President Trump’s decision to pull the United States out of the Paris accords. As bad as the withdrawal was as a symbolic rebuke to the idea of coordinated international action to cap emissions, it was also a clarifying moment, a clear signal to anyone still in doubt that the federal government generally works at the behest of the fossil fuel industry and that climate action must be undertaken against, rather than within, the system. (Ward penned a recent analysis making this point.)
So just what is that “system,” at least insofar as it involves climate change? Climate necessity activism — the combination of direct action against fossil fuel infrastructure with a legal argument that such action is not only justified but necessary — helps to answer that question.
Activism Offers Radical Critique of Conditions That Created Climate Crisis
Climate necessity activists have pushed their cause away from wonky, inside-baseball environmentalism and toward grassroots, social justice insurgency.
For one thing, the “system” is simply the body of government policy that stands in the way of effective climate action and the powerful interests that preserve this policy. The idea that such a system should be challenged is actually relatively new for the climate movement, which for decades eschewed direct action and looked for salvation in mainstream policy solutions. By cribbing from the playbook of past social movements like the Vietnam War resistance and anti-nuclear power campaigns — which used political necessity trials to educate the public and to ratify the idea that social progress required working outside of established channels — climate necessity activists have pushed their cause away from wonky, inside-baseball environmentalism and toward grassroots, social justice insurgency.
Bad policy and self-interested policymakers aren’t the fundamental problem, though — it’s the conditions that create and coddle them. With that in mind, climate necessity activism challenges the idea that we’ll be able to effectively address climate change through technical fixes within our existing political and legal frameworks. One important lesson from the dismal track record of institutional efforts to tackle global warming — failed carbon tax legislation, inadequate regulations, non-binding treaties — is that we need a fundamental reworking of the basic structures in which the fossil fuel status quo operates, and that modest policy reform is insufficient. By directly targeting harmful fossil fuel infrastructure and challenging the legal prohibitions against such action, activists like Ward call into question the institution of private property, which allows oil companies to recklessly pollute the atmosphere as a matter of right, as well as our system of political representation, which encourages politicians to serve moneyed interests and short-term goals over the long-term interests of the public.
Climate necessity activism also forces a reevaluation of what’s “legal” in the age of climate change. As it stands now, it’s generally illegal to interfere with industry practices known to cause massive harm to the planet and its people, and judges read the Constitution as protecting the rights of corporations over individuals and natural entities. In his speech withdrawing the United States from the Paris Agreement, President Trump summed up the status quo by framing government commitments to reduce emissions as a “massive legal liability” rather than as a desirable legal obligation on par with the commitment to due process or the guarantee of free speech. By flipping the script of who’s acting illegally and seeking to reverse the targets of the law’s protections and prohibitions, climate necessity activists are slowly steering the ship of the legal system away from the icebergs ahead and back toward calmer waters. (In this way, the climate necessity movement is linked to efforts to recognize an affirmative government duty to protect the climate and the push to ratify the rights of nature).
Finally, climate necessity activism forces an official reckoning with climate science, which is sadly still necessary at this advanced stage of the climate crisis. Even as the head of the Environmental Protection Agency denies that CO2 significantly contributes to global warming, protester defendants can use rules of criminal discovery and evidence to force courts to recognize that the burning of fossil fuels does in fact cause climate change and its resulting harms, moving climate science from the contested realm of political contention to the domain of legal objectivity. Immediately following his guilty verdict, Ward noted that “beyond advancing necessity defenses and other specific precedents that we’re trying to achieve, it’s very useful for us at this point to try to take climate change into the courts, because for all the downsides it’s a fact-based venue. And that’s a very valuable thing when facts are in jeopardy in the broader political sphere … Americans understand that serious matters get dealt with in courtrooms, and so it’s very important for us to be in here and testing these things in a variety of ways.”
Overturning legal precedent and settled institutional arrangements takes time and tenacity — but when the levee breaks, it’s usually all of a sudden.
It’s important to focus on that experimental, “testing” nature of climate necessity activism. Overturning legal precedent and settled institutional arrangements takes time and tenacity — but when the levee breaks, it’s usually all of a sudden. The struggles for racial equality before the law and for gay people’s access to marriage faced enormous public opposition until in rather rapid fashion mass public consciousness changed. Those changes were often significantly nudged along by courtroom experiments.
When we are swiftly shuttling ourselves down the path of irreversible climate cataclysm, the only unreasonable option is to double down on the status quo.
In a time when our political orthodoxies are being scrambled and rearranged, when what seemed preposterous just months ago becomes terrifyingly real, and when we are swiftly shuttling ourselves down the path of irreversible climate cataclysm, the only unreasonable option is to stick with what we know, to double down on the status quo. Climate necessity activism is a rejection of such complacency. It’s a wedge in the armor of the fossil fuel state, as well as the state of institutional and ideological affairs that insulates climate criminals from accountability.
In his speech announcing that the federal government had stuck its head in the climate sand, President Trump declared that he represented the people of Pittsburgh, not Paris. One need only glance at the composition of the president’s cabinet to understand that this is malarkey. Lucky for us, then, that there are individuals out there willing to do the actual work of representing the public interest, of ignoring the strictures of short-term gain and encrusted doctrine to do what needs to be done.
It’s an experiment. It’s a test. But it’s one that, in our current climate, can only result in something better than what we’ve got.