Will a Necessity Defense Drain the Power of Energy Companies?

December 21, 2018

In the 1960’s, the nation witnessed a wave of civil disobedience that stemmed from an awakening of an environmental collective consciousness. The environmental movement included protests, trespassing, and property damage, and although it facilitated short-term results and media coverage, it arguably crashed as the government stepped in on the side of the energy corporations.

Following the protest era, modern environmentalism continued to flow, largely in the confines of political activism, lobbying, and community based persuasion. Despite affirmative steps taken by the government, (some of the most notable being the Clean Air Act and Clean Water Act of 1970), many activists assert that the U.S. is falling short. The assertion is backed by the sobering new U.N. IPCC report which indicates that the world would need to take more drastic measures than expected in order to curb rising temperatures.

The actions taken by environmentalist, coupled with the inconsistent support of the past four presidential administrations, are seemingly insufficient. While the earth is warming rapidly, political efforts are stagnant and public policy’s pace is glacial. But underlying the seemingly hopeless fight, a string of calculated court cases are drafting a blueprint that just might mangle the efforts of the energy companies and bring significant change to environmental action.

…if necessity in climate change cases becomes a recognized defense, actors will likely commit increasingly large crimes in order to enter litigation.

The string of cases could be seen as a second wave, one that mirrors the energy and desperation of the 1960’s counterpart, but with a new edge: the necessity defense. Since the first protest era of the environmental movement, the necessity defense has been pushed, but has gained no ground, despite it being effective for other defendants including “right to life” activists and nuclear weapon protestors. The opposition to the necessity defense in environmental cases is thawing, and a team of activist including Lauren Regan of the Civil Liberties Defense Center and James Hansen, formerly of the Goddard Institute at NASA, are crafting a concerted effort data and emotional testimony to break the ice. The group collectively stopped four pipelines carrying tar sands from Canada to the U.S. in October of 2016 by using bolt cutters to break and enter into the areas containing the manual valve shut off of each pipeline.

As a safety precaution, energy providers include manual overrides for their operations. For these pipelines, these overrides are often fenced enclosures along the pipeline that are minimally guarded.  Ironically, system wide shut downs can occur with minimal action and equipment; all the perpetrators needed to shut down Enbridge’s line was intent and a pair of bolt cutters. The activists weren’t naïve, they knew the pipelines could be restored quickly and that the energy grid wouldn’t be affected, they just needed to be arrested as a catalyst into the courts so that they could test out their necessity defense.

A necessity defense is asserted when the defendant commits a crime, understanding that they had no legal alternative and that the crime they are committing is less than the harm that is avoided. Additionally the defendant must prove that the harm was imminent and that breaking the law directly prevented the imminent harm. Here, climate activists turned defendants are most likely to fail in proving eminence and causation.

In four different states the defendants sought to have the defense recognized, and in Washington, North Dakota and Montana they were denied, but in State v. Klapstein in Minnesota, the judge permitted it. Then, the county prosecutor appealed, where it was sustained at the appellate level, and the state supreme court declined to hear the case. The judge in this case, and another in a similar trial in Boston, both ruled in favor of a necessity defense. Therefore the defense of necessity for environmental justice has precedent in at least one state. Although a jury decided neither, the warming toward the defense is showing a trend in public opinion that climate change is being considered an imminent harm. Additionally, the judges in both cases recognized the action, albeit in vein, as the only remaining remedy to the imminent harm which signals the courts understanding that the government and other asserted legal protections are not working in favor of general health and safety. Joseph Hamilton, a reporter on the pipeline litigation, argues that if a judge in a rural state like Minnesota will allow a necessity defense to enter the courtroom, then it is easy to believe a jury would uphold the same assertion in a more progressive courtroom in a place like New York City.

With a jury finding on the horizon for a defendant using a necessity defense, energy companies should begin to consider the implications of pro environmental necessity courts. As we’ve seen recently with immigration and the travel ban, injunctions can be employed by the court to counteract administrative action. And as swiftly as the courts can act, an appeal may be drawn out over an extensive period, leaving the court order in place for significant time. If action like this were taken to curb an oil refinery’s production, or close a power plant or other industry, the result could be catastrophic to the business and the community.

A surface level response from the industries affected could be to better protect their infrastructure, or to not press charges, so that these cases never make it into court. However, if necessity in climate change cases becomes a recognized defense, actors will likely commit increasingly large crimes in order to enter litigation. Arguably it will always be an uphill battle for the industries, because what property damage or tort can surpass the purported harm of global warming?

As a result, energy companies and other large polluters might finally be brought to task by environmentalist and be forced to enact prudent policies and cleaner systems. Although more time is needed to determine how progressive the courts have become, a likely bellwether will be Juliana v. United States, better known as “Youth v. Gov.” If the court deems there that pollution and climate change are depriving youth of their fundamental rights, it is very likely that the environmental necessity defense will begin to be accepted nationwide. Energy giants should be conscious of this threat to their loose regulations, but it’s yet to be determined if activists can pull the plug and save the planet with the necessity defense.