The Climate Necessity Defense: How activists are using civil disobedience to fight climate change

A petroleum pipeline located in Alaska.
A petroleum pipeline located in Alaska.
A petro­le­um pipeline locat­ed in Alas­ka. Pho­to by Delan Li

By Delan Li | UConn Journalism
June 21, 2023

In 2008, Tim DeChristo­pher reg­is­tered to bid on oil and gas leas­es at the Utah Bureau of Land Man­age­ment (BLM) office and won 14 leas­es worth $1.7 mil­lion but had no inten­tion to pay for them. He claimed he did so to com­bat gov­ern­ment vio­la­tions of laws and reg­u­la­tions that wors­ened cli­mate change. He was indict­ed and faced charges, but he argued that his actions were nec­es­sary and legal­ly jus­ti­fied due to urgent envi­ron­men­tal con­cerns. The gov­ern­ment, in turn, filed a motion to bar DeChristo­pher from using a neces­si­ty defense, claim­ing he had legal alter­na­tives for his actions. Despite his argu­ments, DeChristo­pher was sen­tenced to two years in prison.

DeChristo­pher lost the bat­tle, but his case marked an open­ing sal­vo as the first record­ed case of the use of the neces­si­ty defense in cli­mate change litigation.

The neces­si­ty defense is a legal defense used in cer­tain sit­u­a­tions where a person’s actions nor­mal­ly con­sid­ered unlaw­ful are jus­ti­fied because they were nec­es­sary to pre­vent greater harm or evil. For exam­ple, if a per­son breaks into a build­ing to res­cue some­one who is in immi­nent dan­ger, they may be able to use the neces­si­ty defense to argue that their actions were justified.

As cli­mate change threat­ens our plan­et, the cli­mate neces­si­ty defense is gain­ing trac­tion among envi­ron­men­tal activists and attor­neys prac­tic­ing cli­mate jus­tice. This defense argues that acts of civ­il dis­obe­di­ence, such as block­ing pipelines or occu­py­ing coal mines, are jus­ti­fied when done to pre­vent or mit­i­gate the cat­a­stroph­ic effects of cli­mate change. The cli­mate neces­si­ty defense asserts that in the face of an urgent and immi­nent threat to the envi­ron­ment and human health, the defen­dants had no choice but to take direct action.

The cli­mate neces­si­ty defense serves as a tool for activists to defend them­selves in court while also edu­cat­ing the legal sys­tem and the pub­lic about the urgent threat of cli­mate change,” Ted Hamil­ton, the cofounder and attor­ney of Cli­mate Defense Project, said. “It high­lights the need for rad­i­cal polit­i­cal action as exist­ing laws and gov­ern­ment efforts may be insuf­fi­cient to address the cat­a­stroph­ic con­se­quences of glob­al warming.”

Weigh­ing the alternatives
While the cli­mate neces­si­ty defense is an impor­tant legal tool for activists, it has faced obsta­cles in its implementation.

In DeChristopher’s case, the court refused to per­mit a defen­dant who com­mit­ted indi­rect civ­il dis­obe­di­ence to use the defense when there were oth­er legal alter­na­tives. This refusal heav­i­ly bur­dens the defen­dant to con­sid­er every legal alter­na­tive avail­able… it is extreme­ly dif­fi­cult to make the neces­si­ty defense argu­ment when oth­er indi­vid­u­als suc­cess­ful­ly attack the poten­tial harm through legal mech­a­nisms,” accord­ing to Joseph Rausch, pre­vi­ous Edi­tor-in-Chief of the Colum­bia Jour­nal of Envi­ron­men­tal Law, in his arti­cle “The Neces­si­ty Defense and Cli­mate Change: A Cli­mate Change Litigant’s Guide”.

Accord­ing to the Cli­mate Dis­obe­di­ence Cen­ter, the neces­si­ty defense rules vary by state and court, so it’s impor­tant to con­sult a lawyer for spe­cif­ic juris­dic­tions and require­ments. The gen­er­al process involves an arrest, a not-guilty plea, offer­ing neces­si­ty defense to the judge, pre­sent­ing a defense to the jury, and final­ly, con­vic­tion or acquittal.

After arrest, activists typ­i­cal­ly plead not guilty and offer the neces­si­ty defense dur­ing pre-tri­al hear­ings. The judge will decide whether to allow the defense to pro­ceed, con­sid­er­ing argu­ments from both sides. If allowed, activists can present their defense dur­ing the tri­al, includ­ing evi­dence on cli­mate change and moral jus­ti­fi­ca­tions for their actions. Final­ly, the jury or judge delib­er­ates and deliv­ers a ver­dict of con­vic­tion or acquit­tal based on the neces­si­ty defense argument.

Advo­cates argue that, when used judi­cious­ly, civ­il dis­obe­di­ence can be a pow­er­ful tool for social change, and the cli­mate neces­si­ty defense pro­vides a legal frame­work for activists to make their case in court.

How­ev­er, the cli­mate neces­si­ty defense is not with­out con­tro­ver­sy. Crit­ics argue that it pro­motes law­less­ness and under­mines the rule of law. Some view it as a loop­hole for activists to jus­ti­fy ille­gal actions.

The cli­mate neces­si­ty defense often faces resis­tance from courts, with judges reject­ing its use before tri­al. There is skep­ti­cism with­in the legal estab­lish­ment about the effec­tive­ness of civ­il dis­obe­di­ence and doubts about the need for indi­vid­u­als and move­ments to take action to address the cli­mate cri­sis,” Hamil­ton said.

Bar­ri­ers to the use of the neces­si­ty defense come not only from the legal sys­tem but also from the indus­tries that are respon­si­ble for cli­mate change.

Fos­sil fuel cor­po­ra­tions and con­ser­v­a­tive law­mak­ers also impose legal penal­ties and sur­veil­lance on cli­mate activists, mak­ing it dif­fi­cult for them to engage in activism. These hur­dles, includ­ing legal resis­tance and cam­paigns against cli­mate activists, cre­ate chal­lenges in chal­leng­ing the fos­sil fuel indus­try and address­ing the cli­mate cri­sis,” Hamil­ton said.

Suc­cess in Boston

The first exam­ple of a judge accept­ing the cli­mate neces­si­ty defense was on March 27, 2018, when Boston Munic­i­pal Judge Mary Ann Driscoll acquit­ted all 13 defen­dants of civ­il charges from a protest held in 2016 in Boston, MA. They were arrest­ed and charged with tres­pass­ing and dis­or­der­ly con­duct while protest­ing the West Rox­bury Lat­er­al Pipeline.

I am against the expan­sion of any fos­sil fuel infra­struc­ture and the con­tin­ued risk that infra­struc­ture puts us all through cli­mate change,” defen­dant Diane Mar­tin said dur­ing her tes­ti­mo­ny. “And, as a Uni­tar­i­an Uni­ver­sal­ist, it is my moral duty to step up and not only talk about what I believe but to act on what I believe.”

Anoth­er defen­dant also expressed deep con­vic­tion in his beliefs and moral duty in act­ing on them.

Cli­mate change pos­es a threat to our civ­i­liza­tion. Despite rec­og­niz­ing ‘nicer’ ways to advo­cate for change, I believe urgent and bold action is nec­es­sary,” War­ren Senders said in his tes­ti­mo­ny. “I am will­ing to risk arrest because of my moral duty to address the destruc­tive effects of fos­sil fuel burn­ing on our civilization.”

The Valve Turners

Anoth­er high-pro­file case that used the cli­mate neces­si­ty defense was “The Valve Turn­ers Case.” Cli­mate activists from four states tried to halt the flow of tar sand oil from Cana­da into the Unit­ed States and bring atten­tion to cli­mate change.

Leonard Hig­gins, one of the valve turn­ers, was charged with crim­i­nal mis­chief for cut­ting three chains and turn­ing off a valve on an oil pipeline at Mon­tana-based Enbridge Inc. He was sen­tenced to three years pro­ba­tion and $3,755 in resti­tu­tion. Her­man Wat­son was one of his defense attorneys.

Wat­son explained the lim­i­ta­tions of the cli­mate neces­si­ty defense.

While the neces­si­ty defense is a valid legal tool, the judge, in this case, denied us the oppor­tu­ni­ty to present that defense,” Wat­son said. “And, even though we dis­agree with the way some laws are applied, the judge is the boss and has the final say on what is legal.”

For­tu­nate­ly, the ver­dict was one that Hig­gins found rea­son­able and read­i­ly accept­ed. The sen­tence will be wiped from his record if he does not com­mit any more offens­es while on probation.

I was expect­ing to go to jail for a long time, and I even wrote my will. I was sur­prised and grate­ful for the deferred sen­tence and reduced resti­tu­tion,” Hig­gins said.

Hig­gins believes civ­il dis­obe­di­ence has a law­ful and appro­pri­ate place in the US and that their actions have raised aware­ness about cli­mate change and the need for urgent action, but not as much as they had hoped.

I felt it was nec­es­sary to com­bat the increase in car­bon emis­sions over the past 40 years,” Hig­gins said. “And I pic­tured in my mind when I closed the valve a gen­er­al strike, mass action of hun­dreds and thou­sands of peo­ple. I believe it is the only way the world can reverse cli­mate change now.”

While the protest action may be ille­gal, Wat­son explains the impli­ca­tions of it.

The use of the neces­si­ty defense is not an incen­tive to break the law,” Wat­son added. “Many pro­gres­sive move­ments and legal refine­ments through­out his­to­ry have been based on ille­gal protests, and the sig­nif­i­cance of these actions may be bet­ter judged by future gen­er­a­tions than now.”

An uncer­tain legal future

Wat­son also said the fact that some states do not allow the neces­si­ty defense in cli­mate cas­es could lead to a chill­ing effect. Still, he argued that if some­one is pas­sion­ate about a cause, they will con­tin­ue to push for change regard­less of legal barriers.

When Hig­gins was asked if he would be will­ing to risk break­ing the law again for cli­mate jus­tice, he replied, “If I went back in time and were in the same place, I would do it again. Because back then, I had more free­dom and abil­i­ty to do it. But now, in the last years of my life, I want to be more present for my loved ones and friends and serve them.”

So, what does this mean for every­day cit­i­zens con­cerned about cli­mate change?

The cli­mate neces­si­ty defense is a sig­nif­i­cant tool for cli­mate jus­tice, espe­cial­ly as mar­gin­al­ized com­mu­ni­ties, Indige­nous peo­ples, peo­ple of col­or, and low-income com­mu­ni­ties, who often con­tribute the least to cli­mate change, are dis­pro­por­tion­ate­ly impact­ed by its effects. The cli­mate neces­si­ty defense can enable defen­dants to raise aware­ness about these sys­temic injus­tices and demand account­abil­i­ty from those respon­si­ble for cli­mate change.

Peo­ple like me, liv­ing in a coun­try with a high stan­dard of liv­ing, should have a sense of respon­si­bil­i­ty. Not just to their own fam­i­lies or com­mu­ni­ties but they should be to all of human­i­ty. That’s the most pow­er­ful thing,” Hig­gins said.

This sto­ry was also pub­lished by Plan­et Forward.