Issues & Trends

The Climate Necessity Defense: A Catch-22 in the Age of Activism

April 02, 2024

By Philip Vachon and Ted Hamilton

In recent years, a growing number of climate change activists engaging in civil disobedience have asserted the “climate necessity defense,” building on a long tradition of political advocacy in the courtroom. 

In the District of Columbia and many other jurisdictions, the defense requires a showing that there is no legal alternative available to the defendant, that the harm to be prevented is imminent and would be directly affected by the defendant’s action, and that the defendant’s actions were reasonably designed to actually prevent the threatened greater harm.¹ In federal court, defendants must show sufficient evidence to convince a reasonable jury that (1) they acted to prevent imminent harm, (2) there were no legal alternatives to violating the law, (3) they were faced with a choice of evils and chose the lesser, and (4) they reasonably anticipated a causal relationship between the conduct and the harm to be avoided.²

When it comes to successful use of the climate necessity defense, however, the track record is mixed. While some activists have won acquittals or mistrials, many have had their necessity arguments blocked prior to trial.³

According to the Climate Disobedience Center, the first successful use of the climate necessity defense was in the United Kingdom. In 2007 a group of activists painted the prime minister’s name on a coal plant to draw attention to climate change. A year later, a jury acquitted the defendants, stating that their actions were justified because damaging a coal plant was a relatively minor crime compared to the harm caused by rising global temperatures. 

In the District of Columbia, the climate necessity defense has not been successful. However, it’s worth noting that in 2022 a D.C. Superior Court magistrate judge did allow argument of the affirmative climate necessity defense in the case of Paul Severance and Michelle Wehner, who blocked I-395 northbound near the Seventh Street on-ramp in Washington, D.C., as part of a Declare Emergency protest.⁴ As the epicenter of protest and activism in the United States, the District will surely see more arguments like this in the future.

Elsewhere in the country, dismissals and acquittals based on the climate necessity defense have been reached over actions blocking fossil fuel pipeline construction or operation.⁵ In State of Washington v. Ward, for example, an activist broke into a pipeline facility and turned off a valve, stopping the flow of Canadian tar sands oil to refineries in Washington. The state’s Court of Appeals made history by affirmatively recognizing the right of a climate activist to offer the necessity defense at trial, finding that a “sufficient quantum of evidence” existed to show that the defendant would likely be able to meet each element of the necessity defense.

Similarly, in Massachusetts v. West Roxbury Protestors, 13 Boston activists were arrested for blocking the construction of a new fracked gas pipeline through the city. Because the prosecutors chose to downgrade the criminal charges of trespassing to a minor civil offense, the protestors weren’t able to mount a full necessity defense. Still, the judge allowed each defendant to explain their reasoning for taking direct action against the pipeline and found them not responsible on the basis of necessity.⁶

A Dilemma for Lawyers
Two paradoxical facts create a catch-22 for lawyers advising climate activists. First, a defendant is more likely to satisfy the factors of the necessity defense if their actions directly target emissions from fossil fuel infrastructure. Second, committing a crime severe enough to trigger a jury trial increases the likelihood of success due to potential jury sympathies and nullification. 

The Ward and West Roxbury Protestors cases exemplify the first point. Climate harms are immediate and ongoing, as affirmed by the U.S. Supreme Court in Massachusetts v. EPA⁷ and even in West Virginia v. EPA.⁸ Targeting emissions sources thus constitutes direct interference with a legally cognizable harm — a harm that “legal alternatives” have clearly and already failed to avoid.

More direct actions best meet “direct effect” and “causal relationship.” However, “reasonably designed” often fails in cases if aimed at political awareness, such as in Griffin v. United States and Emry v. United States.⁹ In Griffin, activists committed unlawful entry to St. Matthew’s Cathedral and Washington Cathedral, opening the doors to provide shelter to homeless persons for the night. The D.C. Court of Appeals judge wrote that “defendants’ acts were undertaken to avoid a significant social evil, that is, the ill effects of involuntary life on the streets of this city in the depth of winter. Appellants’ motion makes clear that their actions were designed to focus attention on the plight of the homeless; they were not undertaken as a last resort, after all else had been attempted, to avoid an immediate harm.”

Regarding the second point, State v. Butler demonstrates the impact of a jury.¹⁰ In Butler, activists blocked an oil company’s railroad tracks to the Oregon’s largest crude oil export terminal by building a garden on top of it and sitting. The court allowed the necessity defense, and a mistrial was declared due to a split jury — five voted to acquit the defendants, while one voted to convict.¹¹ In Massachusetts v. Ward, charges of criminal conspiracy that would have triggered a jury trial were dropped by the district attorney against two climate activists who used a lobster boat to block a shipping channel to stop a coal shipment.¹²