Necessity As the Mother of Prevention

By Tom Hastings

This essay is meant to help those who are especially interested in the court proceedings of nonviolent resisters[1] to anthropogenic climate change. The intended readers would include nonviolent resisters, their lawyers, and those experts in strategic nonviolent civil resistance who may be asked to provide expert testimony validating the use of the necessity defense for resisters.

In general, the necessity defense is known as an affirmative defense, a narrative that contextualizes and validates the otherwise apparently illegal actions of the nonviolent resisters. The classic example is the passerby who sees the house on fire, the child at the window screaming for help, and who decides instantly to break into the burning house to save the youngster. That bystander committed trespass, destruction of property (the door), and possibly other offenses under various local or state laws and ordinances, but if an overzealous police officer arrests the intervening passerby and the prosecutor seeks conviction, a good lawyer will offer the necessity defense to secure a verdict of not guilty.

In the context of the law as experienced in the US Civil Rights movement, Dr. King wrote that they were sometimes breaking a good law for a good reason and sometimes they were breaking a bad law. The necessity defense is often explained as breaking a law to prevent a greater harm. Increasingly, a strand of thinking by legal experts is coming to the conclusion that the legal professionals should not be neutral but rather should be advocates for the environment, lending more skills and expertise to civil, criminal, and lawmaking efforts to protect our environmental commons.[2]

As to the requirements of employing the necessity defense[3], one is that a prosecutor will fight that, possibly with a pretrial motion to exclude it, usually on the grounds of salience; that is, the prosecutor will claim, often successfully, that the questions of guilt or no guilt are unrelated to all the myriad issues the defense wishes to bring to the court’s attention, such as global climate chaos in a case of nonviolent resistance to a fossil fuel facility. The prosecutor will normally urge the judge to direct the defense to the germane issue: did the defendant do the actions that resulted in legal charges or not? Most often the judge will rule for the prosecution and exclude the necessity defense, thus rendering the courtroom a more or less sterile environment excluding most of the truth required to have an honest examination and a fair trial.

In many cases excluding the necessity defense simply makes a travesty out of the legal system and clearly favors the perpetrators of what many refer to as actual eco-terrorism, that is, the corporations profiting from our massive consumption of fossil fuels. How can we begin to turn this around? Resisters wryly observe that former US Vice-President and 2007 Nobel Laureate Al Gore declared in September 2008 that, “If you’re a young person looking at the future of this planet, and looking at what is being done right now, and not done, I believe we have reached the stage where it is time for civil disobedience.”[4]

One piece of this attempt is dealing with one of the questions the defense lawyers must answer, which is, Did the defendant have any reasonable expectation of success when she violated the law in her attempt to change policies she claimed are harming others? In order to do so, the lawyer will often employ expert witnesses, first to establish that there is in fact imminent danger but it’s a remediable or at least mitigatable problem, e.g., a climate scientist to testify that anthropogenic climate change is beginning to wreak damage on a regional, national, and global scale, and then an expert in the history of nonviolent resistance and resultant changes in public policy, institutional policy, or corporate policy, especially as it directly involves slowing and stopping the drivers to climate change, e.g. coal and oil exploration, extraction, refinement, transport, burning and all the requisite enablers of these activities—e.g., financers, regulators.

The clear distinction between lawful protest and resistance resulting in arrest needs emphasis; nonviolent campaigns that do not involve acts of actual resistance are not contemplated here. They are almost always precursors to resistance, both for collectives and for individuals, which should be emphasized, of course, in court testimony by defendants themselves, a catalog of their legal activities that helped produce a condition of lack of perceived effective alternatives to nonviolent resistance, or a justifiable sense that, at the least, nonviolent resistance needed to be added to the prongs of a campaign’s multipronged approach to addressing the announced goal.

Part of what many nonviolent resisters are attempting to do is what researchers term “public pedagogy,”[5] i.e., using the drama of their resistance action to help educate the voting, purchasing, consuming public about the immediacy and severity of the problem. The “public curriculum” of nonviolent resistance, studied via discourse theory, can be a powerful augmentation to the outreach efforts of advocates for better policies to mitigate climate chaos. Judges and juries are helped by understanding this, and indeed become a component of exactly this. Or, as author activist Bill McKibben noted in Scientific American, “When 1,253 people got arrested in front of the White House, almost no one in the country had heard of this Keystone thing outside of Nebraska and a few other places along the pipeline route.”[6]

Other social movement researchers have termed civil resistance to fossil fuel consumption as “participatory democracy,” and have highlighted the frame proffered by movement spokespeople as risking arrest in response to “an emergency.”[7]

This essay does not examine the many cases in which causation or correlation of nonviolent resistance to policy change or preservation success has occurred in movements long preceding the movement to resist climate chaos. From Rosa Parks to draft board raids to nuclear power plant construction to nuclear disarmament to migrant rights to gay rights to women’s right to vote and to a much longer list of such actions, campaigns, and movements that included nonviolent civil resistance, the necessity defense is demonstrably salient and often highlighted further when its proffer is denied[8]. What we explore herein only relates to relatively recent nonviolent civil resistance to climate chaos—the hurricanes, forest fires, droughts, floods, rising seas, habitat destruction and other direct effects of burning fossil fuels so much for so long.

Select cases in which nonviolent resistance correlates to success in challenging drivers to climate change, e.g. fossil fuel industries

Trans Mountain pipeline expansion

First Nation and indigenous resistance[9] to the proposed expansion of the Kinder Morgan existing Trans Mountain pipeline from Edmonton, Calgary to Burnaby, British Columbia has likely halted it.[10] From tiny houses in BC[11] to chained nonviolent resisters at a Kinder Morgan Richmond, California facility, the investment climate was impacted severely. Investors were warned by financial analysts to avoid the project, which seems to have ended it.

Syracuse University divests from fossil fuel investments

In 2012 students at Syracuse University asked the Board of Trustees to order divestment from all fossil fuel industries. The BOT did not. Students persisted. Finally, in 2014 they escalated from education and protest to nonviolent resistance, sitting in for 18 days, at which point they won[12]. Many other such campaigns at colleges and universities have also succeeded similarly.

Seattle divests from Wells Fargo

This is a case of demonstrable cascading effects of nonviolent resistance in one place—the Standing Rock Sioux resisting the Dakota Access Pipeline (DAPL) in North Dakota—prompting policy change in another. In 2016, acting in overt solidarity with the nonviolent resistance to DAPL, the city of Seattle divested[13] from one of the largest financial backers of the pipeline, Wells Fargo, depriving the financial corporation of some $3 billion[14] in annual business with the city. This knock-on effect of nonviolent resistance has been studied vis-à-vis the Civil Rights movement[15] and in this case is not conjecture, but documented in the movement to resist climate chaos.

Kayaks v Royal Dutch Shell

In late July 2015 Greenpeace and affiliated groups confronted and blockaded[16] Royal Dutch Shell’s arctic icebreaking ship the MSV Fennica at the St. John’s bridge in Portland, Oregon, stalling the sailing by a couple of days but much more importantly gaining international recognition with a signature photogenic act of nonviolent resistance, including 13 colorful harnessed midair resisters hanging from the bridge and scores of kayaks in blockade across the Willamette River. Law enforcement eventually arrested resisters and cleared the river. The icebreaker continued north, ran into more kayackivists in Seattle, and made it to Alaska, only to leave, abandoning an estimated 15 billion barrels of light sweet crude oil. The resistance was not the only factor but it did seriously drive up the costs of oil exploration even as the global oil market slumped. As is the case most often, a combination of factors including nonviolent resistance[17] led to this change in corporate policy.

Break Free from Fossil Fuels Campaign

In spring 2017 Greenpeace called for the second Break Free from Fossil Fuels Campaign, resulting in some 170 actions globally and several victories from acts of nonviolent resistance. Some of those actions were specific to fossil fuel projects and others were more generalized nonviolent resistance to groups of industry planners, e.g. the nonviolent blockade in New Zealand[18].

Resisters halt coal-fired power plant proposal in England

Energy company Eon proposed a very large coal-burning electrical generating plant for the Kent, England region in late 2006 and opposition launched in 2007, beginning with protest and eventually escalating to nonviolent resistance, with arrests at several actions[19], including: sit-ins and occupations, as well as chaining themselves to machines, conveyor belts, and fences. The three-and-one-half-year campaign ended when the corporation withdrew its application for construction. The necessity defense was successfully utilized.[20]Φ

Tom H. Hastings has twice been convicted of nonviolent felonies as part of the Plowshares disarmament movement and benefitted from the legal lead of lawyers Kary Love, Katya Komrisaruk, Francis Boyle, John Bachman, Mark Perrine, and paralegal help from John LaForge. He researches, publishes, and teaches nonviolence and is now qualified and has offered court testimony as an expert witness to argue for the validity of the necessity defense. This article first appeared on October 4 at LA Progressive.

[1] This essay does not contemplate the spurious arguments that violent or armed resistance is on equal legal footing with nonviolent resistance, e.g.,http://www.motherjones.com/politics/2017/09/cliven-bundys-lawyer-compares-his-armed-resistance-to-selma-marchers/

[2] Tom Lininger, Green Ethics for Lawyers, 57 B.C.L. Rev. 61 (2016), h p://lawdigitalcommons.bc.edu/bclr/vol57/iss1/3

[3] http://www.climatedisobedience.org/necessitydefense

[4] Temperature Gauge. (2009). Earth Island Journal, 23(4), 14.

[5] McGregor, Callum (2015). Direct climate action as public pedagogy: The cultural politics of the Camp for Climate Action. Environmental Politics, 24(3), 343-362. doi:10.1080/09644016.2015.1008230

[6] Bill McKibben: Actions speak louder than words. (2012). Bulletin of the Atomic Scientists, 68(2), 1-8. doi:10.1177/0096340212438383

[7] Evans, Geoff (2010). A Rising Tide: Linking local and global climate justice. Journal of Australian Political Economy, (66), 199-221.

[8] http://law.justia.com/cases/federal/appellate-courts/F2/741/1031/90708/

[9] https://www.ran.org/protesters_blockade_kinder_morgan_richmond_terminal_demanding_halt_to_trans_mountain_tar_sands_pipeline

[10] http://theenergymix.com/2017/09/24/trans-mountain-will-likely-be-scrapped-analyst-predicts/

[11] http://www.huffingtonpost.ca/2017/09/08/indigenous-activists-are-building-tiny-houses-to-protest-b-c-trans-mountain-pipeline_a_23202037/

[12] https://nvdatabase.swarthmore.edu/content/syracuse-university-students-win-fossil-fuel-divestment-2012-2014

[13] https://nvdatabase.swarthmore.edu/content/city-seattle-severs-financial-ties-wells-fargo-protest-funding-dakota-access-pipeline-2016-2

[14] http://www.latimes.com/nation/la-na-seattle-divests-from-wells-fargo-20170206-story.html

[15] http://thebulletin.org/scientists-world-unite11115

[16] http://www.oregonlive.com/portland/index.ssf/2015/07/greenpeace_protest_icebreaker.html

[17] https://www.wired.com/2015/09/shell-didnt-quit-alaska-goodness-heart/

[18] https://www.facebook.com/greenpeace.nz/videos/vb.11870725774/10155047004990775/?type=2&theater

[19] https://nvdatabase.swarthmore.edu/content/environmental-activists-prevent-construction-coal-fired-power-plant-kingsnorth-england-2007-

[20] van der Zee, Bibi (2010). Defence is the best form of attack. New Statesman, 139(5008), 36.