For almost a year, hundreds of protesters in Massachusetts took action to stop construction of a high-pressure fracked gas pipeline, which would have run for five miles through the Boston neighborhood of West Roxbury. The demonstrations, which featured protesters sitting in holes dug for the pipeline, lead to the arrests of nearly 200 people, many of whom faced criminal charges for trespassing and disturbing the peace.
On Tuesday, the final 13 protesters facing charges over the demonstrations were found not responsible by a Massachusetts judge, who ruled that the potential environmental and public health impacts of the pipeline — including the risk of climate change — had made civil disobedience legally necessary.
According to the Climate Disobedience Center, which supported the protesters in their demonstration, this is the first example of a judge finding defendants not responsible on the basis of a necessity defense — something that has been used by the climate movement increasingly in recent years as a basis for direct action against fossil fuel infrastructure.
“We believe this is a first,” Marla Marcum, director of the Climate Disobedience Center, told ThinkProgress. “It’s pretty powerful, to us, that a judge listened very carefully and determined, essentially, that it was necessary for these people to take this action in an attempt to prevent a greater harm.”
It’s a rare piece of good news for the climate movement, which has seen an increase in the criminalization on environmental protest in recent years. And, it’s good news for the West Roxbury protesters, because while they didn’t stop the pipeline from eventually becoming operational, they did force the pipeline company — Spectra Energy — to admit on the record that it didn’t have a safety plan in place in the event of a catastrophic failure.
“In this moment in 2018, when we get a lot of bad news every day, I think good news in the movement is something that the movement always needs,” Marcum said. “This isn’t an unbridled victory, but it’s good news, and it’s evidence that when we can bring the full range of evidence that actually should be considered in our cases before the court, we may find someone who is prepared to hear that evidence and make a ruling based on all of the relevant evidence.”
According to Alice Cherry, co-founder and staff attorney of the Climate Defense Project, which was part of the legal team for the West Roxbury protesters, the necessity defense is an old legal doctrine that allows people to argue that a crime was justified in order to prevent greater harm — like a ship captain dumping cargo in order to prevent a ship from sinking.
To mount a successful necessity defense, defendants need to prove that there is an imminent threat, and that the threat could not be avoided through legal means. In the case of the West Roxbury protesters, this meant showing that the pipeline would have contributed both to climate change and local environmental risks, and that local elected officials had been unsuccessful in attempts to see the pipeline re-routed or blocked.
The West Roxbury protesters never got a chance to mount a full necessity defense, however, because prosecutors eventually chose to downgrade the charges from criminal to civil. Still, the judge allowed each defendant two minutes on Tuesday to explain their reasoning for taking direct action against the pipeline. At the conclusion of the testimony, the judge decided to find the defendants not responsible — the civil equivalent of not guilty — on the basis of necessity.
Because the prosecution chose to downgrade the charges, the West Roxbury protesters were not able to mount a full necessity defense in front of a jury — something that Cherry described as a “missed opportunity for the climate movement,” because presenting a full case in front of a jury can often attract more attention, and help move public opinion, more than arguing a case before a judge.
“Democratic deliberation on important social issues is uniquely facilitated by jury trials, and these defendants had hoped to contribute to a rich history in which jury trials have helped advance public opinion and drive social progress,” Cherry told ThinkProgress via email.
Still, it’s unlikely that the West Roxbury case represents the apex of the climate movement’s attempt to use the necessity defense as a bulwark in fossil fuel protests.
In fact, the movement will get another shot at mounting a successful necessity defense in Minnesota, when two climate activists facing criminal charges for shutting down a tar sands pipeline as part of an orchestrated protest across four states head to trial.
Known as the Valve Turners, these activists — who all face criminal charges ranging from misdemeanor trespass to felony criminal mischief — have all tried to argue that they should be allowed to present a necessity defense in court. And, in all but the Minnesota case, those pleas have been ignored.
Still, some — like the Climate Disobedience Center’s Marcum — say that even failed attempts to present a necessity defense with respect to climate change can have a positive impact.
She points to a trial in Boston in 2014, where two protesters tried to use a necessity defense to justify blocking a coal freighter with a lobster boat. After arguing during trial that their actions were necessary to prevent climate change, the district attorney prosecuting the case dropped the charges and announced at a press conference that “climate change is one of the gravest crises the planet has ever faced.”
“I think it’s important to continue putting in the laps of people like judges, prosecutors, and juries, the opportunity to make a decision about what is right in this moment,” Marcum siad. “People who occupy those roles care deeply and are worried about climate and the future for their children and grandchildren, and occasionally show a feeling of relief or gratitude that some group has brought into their sphere of power the ability to really hear and evaluate based on all of the evidence.”
And while Cherry notes that the West Roxbury judge’s decision is doesn’t set any kind of legally binding precedent, it could set an example for activists trying to get the legal system to take their climate concerns into account — something that will potentially come into play as states and the federal government consider cracking down on protests aimed at disrupting fossil fuel infrastructure.
In 2018, eight states have already considered bills that would create new penalties for protests that disrupt “critical infrastructure” like pipelines. And last year, 84 members of Congress sent a letter to Attorney General Jeff Sessions asking if the Department of Justice had the power to treat the willful disruption of pipelines as a terrorist activity.
As protesters face increasingly severe legal consequences for civil disobedience, the climate movement will likely lean more heavily on the necessity defense as a legal tactic — and courts will have to grapple with whether action to avoid the climate crisis counts as justification for illegal actions.
“I think we’re seeing a pretty rapid development of this particular corner of criminal law doctrine in response to changing social conditions, along with democratic pressure on courts in an era when the political branches of government cannot or will not respond to the climate crisis like the emergency that it is,” Cherry said. “The case is significant in that it is part of an upsurge in strategies — in the U.S. and around the world — that enlist judges and juries in combating climate change, and people are paying attention.”