Editor’s note: Late last month, the necessity defense appeared to have reached a milestone when a judge in Massachusetts found 13 pipeline protesters not guilty after they testified that civil disobedience was the only reasonable alternative to prevent imminent harm, locally and globally. The 13 activists were arrested, along with close to 200 other participants, in response to a year-long campaign that began in 2015 to halt a pipeline extension that will carry fracked gas through a Boston neighborhood. According to the New Yorker, Judge Mary Ann Driscoll said their actions were justified by reason of necessity. No climate protester in the U.S. had ever successfully employed a necessity defense in court to avoid punishment.  

Cascadia’s Thin Green Line is most closely associated with the multiple legal and political campaigns that have successfully beaten back over a dozen proposed projects that would have released millions of tons of CO2 from fossil fuels bound for Asian markets. But the Thin Green Line could arguably also apply to less conventional tactics that have arisen to address not only future projects but the transit of fossil fuels that is happening right now, every day, into and out of communities in the Northwest.

A legal strategy with a connection to Good Samaritans, abortion rights, and Dr. Martin Luther King, Jr.
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In the early morning hours of September 2, 2014, five climate activists made their way into Burlington Northern Santa Fe’s Delta Railyard in Everett, Washington, and erected an 18-foot tripod out of steel poles. One member of the group, Abby Brockway, climbed onto a perch at the top while the remaining four chained themselves to the legs.

The tripod was positioned on the tracks in front of a freight train that was waiting to depart with tanker cars loaded with crude oil.  After approximately eight hours of peaceful protest, the five were removed by the Everett Fire Department, arrested by local police, and taken to jail. Often referred to as the Delta 5, they were eventually charged with trespass along with the very specific crime of obstructing or delaying a train.

In 2016, Veterans for Peace and the Raging Grannies, among others, blocked trains carrying fossil fuels in Spokane.  That same year, Ken Ward shut off a pipeline near Anacortes delivering tar sands oil to the U.S. from Canada as part of a coordinated effort across four states by a group now known as the Valve Turners. In 2017, Stephen Way and Carlo Voli kayaked to Puget Sound Energy’s site for a liquefied natural gas (or LNG) facility in Tacoma and locked themselves to construction equipment.

And those are just the efforts with a connection to Washington State.

During their trials, these protesters have admitted the facts surrounding their crimes while at the same time attempting to assert a necessity defense. The concept of a necessity defense goes back centuries and is recognized in some form in virtually every state in the U.S.  Despite that pedigree—and increasingly frequent references in the news (here, here, and here)—it’s not generally well understood.

What exactly is the necessity defense?  How far can it go to spare climate activists from punishment?  And what is its connection to Good Samaritans, abortion rights, and Dr. Martin Luther King, Jr.?

Defining the necessity defense

The necessity defense can be explained using a familiar turn of phrase: we should not penalize someone for choosing the “lesser of two evils.”  As any good philosophy major will tell you, that perspective is linked to utilitarianism, the idea that ethical thinking should encourage activities that result in the maximum benefit (or utility) to society as a whole.

The classic scenarios for the necessity defense are grounded in common sense: a driver exceeds the speed limit to rush an injured passenger to the hospital; a neighbor breaks into a home to rescue a family from a raging fire; a ship captain decides to enter an embargoed port to save her crew from an approaching storm.  In each instance, the actor has broken the law, but in doing so is clearly behaving ethically.

The necessity defense accepts the principle that some violations of law are permissible because they are justified by the greater good.  The actual legal application is a bit trickier, however.

For a successful necessity defense in Washington, the defendant must prove four things:

1) a reasonable belief that the commission of a crime was necessary to avoid or minimize harm;

2) the harm sought to be avoided was greater than the harm resulting from the violation of the law;

3) the threatened harm was not brought about by the defendant; and

4) no reasonable alternative existed.

There are variations, but the basic elements are more or less the same across most states, including neighboring Idaho and Oregon.  Similar demands are included in the Canadian version as well.

At first glance, these requirements seem tailor made for a dedicated climate activist.  Is there any greater harm than the ongoing, planet-altering threat of climate change?  After decades of political inaction at the federal level (and at best underwhelming action at the state level), what reasonable alternatives are there?  This should be easy, right?

Applying the necessity defense to climate protests

In order to understand the legal hurdles involved, it will help to review one aspect of a recent Washington State court ruling in Snohomish County that denied the use of the defense for the Delta 5 defendants.  To do that, first we’ll need to make clear the distinction between the responsibility of the judge and role of the jury in criminal cases.

Generally, it is the jury that determines whether a defendant is found guilty of a crime.  But a judge plays a critical gatekeeping role, deciding what issues that a jury is permitted to consider at all.  So in order for the jury to have the option of applying a necessity defense, a judge must be satisfied that there exists a minimum threshold of supporting evidence.  In other words, is it plausible that the defendant will satisfy the four requirements listed above?

As a result, a judge potentially has two distinct decisions to make:

1) whether the defendants are allowed to present evidence as part of the trial to demonstrate how they will meet the four-part test needed to establish the necessity defense; and

2) if so, whether that evidence meets the threshold for allowing the jury to consider its applicability.

These are related in that the evidence presented in Step 1 can in some circumstances help the judge make the decision for Step 2.

In the Delta 5 case, at Step 1 the Snohomish County judge allowed the defendants to present two days of testimony in front of the jury that included topics such as the Paris climate agreement, railway safety, and the dangers of soot particles that are emitted when burning coal.  Sightline in fact provided some of that testimony.  But at Step 2, the judge denied the jury the option of considering the necessity defense, in essence telling its members, “Ignore what you just heard.”  (The judge also denied the defendants’ request to present additional experts to the jury.)

The judge issued a written decision for Step 2, detailing the reasons why the defendants did not meet the four-part test.  For simplicity, we’ll only look at the last requirement, asking whether there were reasonable legal alternatives available.  The court looked at a number of judicial decisions, quoting one that found that there “are thousands of opportunities,” for protestors to spread their message.  The judge adopted that expansive view, concluding that “countless legal means” existed for the Delta 5 defendants to effect change.  Consequently, the necessity defense was out of their reach.

In two other climate prosecutions, one involving Ken Ward in Skagit County, Washington and another involving Seattle resident Michael Foster (a fellow Valve Turner) in North Dakota, the judges rejected the necessity defense based, in part, on the same reasoning as in Snohomish County.  However, those two courts did so at Step 1, denying the defendants the chance to present any evidence to the jury in support of the defense.

This “reasonable alternatives” rationale may strike you as perverse.  The very reason that the activists took such desperate measures is the long-standing failure of the political branches to respond to pressure from activists.  Before railing against the result, however, it is worth considering the nature of the necessity defense and civil disobedience itself.

Time to get deep.

The necessity defense and democracy

The necessity defense allows a jury to pardon the speeding driver, the heroic neighbor, and the ship captain because society recognizes that those individuals faced dire situations with a choice between obeying the law and obeying a higher ethical duty.  The underlying premise is that although the legislature made a clear decision to prohibit their behavior, if confronted with the particular circumstances of the crime, it would be willing to carve out an exception.

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  • Expanding the scope of the necessity defense too far risks routinely trampling laws made by the democratically elected legislative branch.  Society has chosen to enact legal prohibitions and protections that should reflect our collective value judgments.  A pervasive necessity defense can diminish those choices.

    Moreover, the necessity defense itself is content neutral.  If courts were to widen its application, it might be used to advance causes you find admirable.  Or it might apply equally well to actions you find morally objectionable.

    A number of defendants have attempted to claim the necessity defense in order to avoid legal repercussions for blocking access to abortion clinics.  In Kansas and Florida, defendants unsuccessfully asserted the necessity defense when on trial for the murder of abortion providers.  Although most courts have reasoned that the defense simply does not apply to a constitutionally protected activity such as abortion, some have also based their denial on the availability other legal avenues, such as marching and passing out literature.

    It never moved beyond the theoretical, but a notorious 2002 Department of Justice memo raised the idea of using the necessity defense for any future prosecutions related to the torture of detainees suspected of withholding information about future terrorist attacks.

    The driver, the neighbor, and the captain are the easy examples.  The real world, unfortunately, is a far messier place.

    The necessity of consequences

    “One who breaks an unjust law must do so openly, lovingly . . . and with a willingness to accept the penalty,” wrote Dr. Martin Luther King Jr. in his letter from a Birmingham jail, an admonition that illustrates the uneasy relationship between civil disobedience and the necessity defense.

    The non-violent protests organized by Dr. King were based on the common view of civil disobedience as an intentional violation of the law that includes an expectation of suffering legal consequences.  That expectation appears to have been internalized by the climate activists as well.

    After his conviction, Ken Ward stated, “(You) put your body on the line as a means of demonstrating that there are at least a core of people who believe so strongly in the quality of the problem that we’re willing — if need be — to go to jail to try to stop it.”  Abby Brockway similarly wrote, “I am prepared to face the legal consequences of my actions. The cost is worth paying.”

    Still, the goal of civil disobedience to prompt reform can be enhanced by the courts liberally interpreting Step 1 when considering the necessity defense in climate prosecutions.  Allowing protesters to present evidence of necessity at trial provides a forum for elevating the issues that motivated their actions, even if in the end the jury is prohibited from applying the defense.

    Consider the sentiments of the judge who ultimately denied the use of the necessity defense for the Delta 5, stating in court that they were “tireless advocates of the kind that we need more of in this society.”  Although the Delta 5 were found guilty of trespass, the extensive media coverage of the trial included the sympathetic reaction of the jurors, some going so far as to express interest in joining the climate movement as they literally embraced two of the defendants.

    Other courts have been receptive to this approach, too.  In a case involving Valve Turners in Minnesota, the judge decided late last year at Step 1 to permit the defendants to present evidence at trial in support of a necessity defense, as did the judge in Spokane overseeing the trial of protesters who blocked rail lines there.  (The Minnesota decision is currently on appeal.)  Even more recently, Sightline appeared at a pre-trial hearing to support the Tacoma LNG protestors’ effort to assert the necessity defense as part of the court’s Step 1 decision.

    As long as our politics remain deadlocked, there will continue to be climate protests that involve strategic violations the law, and there will continue to be claims of necessity at any trials that follow.  But rather than fearing for democracy, the more optimistic view is that exercising the necessity defense potentially enhances democratic institutions by providing a voice to activists who most want simply to spur an active public debate around policies to fight climate change.

    As neatly summed up by Patrick Mazza, one of the Delta 5 defendants, “We got to present the case.  We gained tremendous media attention.  That’s how you reach people.”

    Michael Mayer practiced environmental law in the Northwest for close to a decade and now teaches climate change law at Seattle University School of Law.