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‘Urgency of Climate Change’ to Debut as Legal Defense

As protests go, Ken Ward’s and Jay O’Hara’s daylong blockade of a coal delivery was low-key. There were no kerfuffles involving authorities and nobody was arrested — the men learned of criminal charges later by mail. But the duo’s trial, scheduled to begin Sept. 8 in a Massachusetts district court, is shaping up as a high-profile affair, featuring an unusual defense and planned testimony by some of the biggest names in climate science.

The men’s attorneys are planning to deploy a novel strategy. It’s called the necessity defense. They will argue that the urgency of climate change and greenhouse gas pollution was so great that their clients’ actions were legally justifiable.

A white lobster boat, right, blocking the coal-hauling Energy Enterprise.
Credit: Lindsay Metivier

The trial’s outcome could have far-reaching implications, with fossil fuel blockades growing in popularity around the world as a form of climate-related protest. And the trial could grab national headlines. Former NASA climate scientist Jim Hansen and prolific climate writer Bill McKibben told Climate Central that they plan to testify in Ward’s and O’Hara’s defense.

The legal brouhaha was set in motion in the spring of 2013. Following an early-morning waterfront prayer in Newport, R.I., Ward and O’Hara navigated a lobster boat into a shipping channel, pulled close enough to shore to shout to supporters on land, and dropped an anchor weighing more than 200 pounds — one that was chained and locked to their vessel. They called local police. Coast Guard officers boarded their boat, inspected it, and remained on board as the hours ticked by and the sunny day became overcast and windy. The 690-foot Energy Enterprise idled along the shoreline, unable to deliver its payload of coal to a power plant in Somerset, Mass. Before dusk, threatened with tens of thousands of dollars worth of daily fines, Ward and O’Hara commissioned a salvage company to use a crane aboard a barge to lift the oversized anchor, then they motored to a marina in Fall River, Mass., and went home.

They are being charged with disturbing the peace, conspiracy, and boating offenses. They could face a few thousand dollars worth of fines and up to 5 years in prison if convicted. Their legal team, comprising a local defense attorney and a seasoned environmental lawyer, have come up with a plan to use threats that fossil fuels, and coal in particular, pose to the planet’s climate in their defense. The legal team says it will argue that the men acted out of necessity. (Prosecutors declined to comment because the case is pending.)

In attempting to use the necessity defense, the lawyers are veering from tradition. America is home to a long history of acts of civil disobedience — acts that that can help draw attention to a cause or an injustice. But such protestors normally admit that they committed crimes. Retired federal judge and Harvard Law School lecturer Nancy Gertner defended anti-nuclear protesters charged with trespass during the 24 years that she worked as a lawyer. They copped to their crimes, which they felt were justified. The difference here, she says, is that attorneys defending the lobster boat blockaders will argue that the necessity of the situation means that no crime was committed.

“The necessity defense is a defense that justifies a particular criminal act,” Gertner said. “You’re saying the harm created by the criminal act is outweighed by the harm to be avoided. It’s saying it isn’t a crime.”

Ken Ward, left, and Jay O'Hara before sailing to block a coal shipment. 
Credit: Ben Thompson

Somebody who breaks into a cabin to find food while lost and starving in the woods is a classic hypothetical example of an accused criminal who could use the necessity defense. A motorist who speeds to rush their wife to hospital before she gives birth might do the same.

Judges rarely allow the defense to be used in court, Gertner said. “It’s a defense that’s unusual — it’s not impossible, but certainly unusual.”

If the men’s attorneys do win in court using the necessity defense, “it would create a precedent,” Gertner said. “That’s probably something that would be in the judge’s mind. Would this enable people, or encourage people, to do other acts — to block coal shipments, or nat gas?”

One of the pair’s attorneys, Matthew Pawa, a litigator and trial attorney with extensive experience in environmental cases, agreed that victory for his clients could mean a “nice side benefit” for other activists charged with similar crimes.

“What they did was the right thing to do under the circumstances,” Pawa said. “If there is a threat that’s looming to property or life, to yourself or a loved one, or, in this case, to all of our loved ones, you can act in ways that would otherwise be considered criminally illegal.”

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By Annette (Queanbeyan/NSW/2620)
on August 29th, 2014

I used that as a defence in court in NSW, Australia. I had been blocking the road to Whitehaven’s new coal mine and then defended myself with a speech about climate science and the neccessity of action.

Even if the defence is not accepted in this instance, if enough of us are honest and straightforward about our motives it will have to have a Global cumulative effect. Good luck boys. All around the World we will be thinking of you. Go

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By Miner49er (Glenview IL 60025)
on August 29th, 2014

We’re all keenly anticipating the cross examination of the witnesses under oath.

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By Sue Frazier (Manhattan)
on August 29th, 2014

The defense tactic could unfortunately be used for other actions like blocking a woman from entering an abortion clinic.

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By Jon Hinck (Portland, ME 04102)
on August 30th, 2014

If the necessity defense is invoked in other legal proceedings, including by abortion protesters, it would have to be supported and meet the standard based on the merits in that case. Abortion rights are constitutionally protected so a blockader would need to overcome that. Since the underlying facts, and the necessity for action are quite different in the two cases, the use of the defense in this one, if successful as we should hope it will be, would not be much of a precedent for the other case.

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By vm
on August 29th, 2014

on a world scale, embrace nuclear power temporarily along with renewables and you get rid of fossil fuels faster. in return for less climate change devastation there is a CHANCE a few plants and nuclear storage sites might statistically suffer chernobyl scale accidents. We lose maybe several hundred square kilometers per century of usable land to radiation and a death toll maybe at worst in the millions per century


status quo. Nuclear is being supressed. Renewables are increasing in number slowly so fossil fuel hangs around much much longer since any renawable power stations in developed countries have been historically balanced by new fossil fuel plant construction in developing countries.

““Coal, oil and natural gas made up 82 percent of total energy consumed 25 years ago, and they still make up 82 percent of the world’s energy diet today <2013>”“

Climate change then FOR SURE becomes worse, what else is the CO2 being spewed gonna do?. We lose millions of square kilometers per century to desertification and sea level rise. At worst case, death toll in the billions per century from heat waves, displacement of populations, famine, increased extreme weather events, new diseases or tropical diseases moving to temperate areas, economic collapse and maybe resource wars

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By Schatzie Dudee
on August 30th, 2014

YAY!!!!  Just yesterday I wrote in SciAm online article about coal pollution that prosecutors need to charge the fossil fuel industry with crimes against humanity. Please let the tide turn in the favor of the environment. Hats off to all involved here.

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By John Dickey (Jackson, MI 49203)
on August 30th, 2014

The Necessity defense has been universally rejected in situations like this.  It simply does not apply.  The protest involves a matter of public policy. Federal and state laws and regulatory agencies regulate the coal plant involved.  Public policy is decided through the laws and regulations that govern the plant.  The defendants have every right in the world to express their opinions and work to get the plant owners, legislatures, and agencies to change their policies.  It does not excuse committing a crime to accomplish that.  The necessity defense applies to matters where everyone agrees that immediate action is required.  Consider a burning building with a baby inside.  Everyone agrees that saving that baby is more important than protecting property from trespass or entering.  If you break and enter to take the baby to safety, you have not committed a crime.  A third of Americans are so uninformed that they still don’t even believe that global warming is happening.  Another third believe it is no big deal.  So our people clearly need education on the subject.  But this is precisely why the necessity defense can’t be used.  If it did apply, then everyone who wanted to get attention for any issue would claim that it was necessary for them to disobey the law in order to get attention to their issue.  They are unduly risking a felony conviction when they surely could plead to a minor misdemeanor.

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By Kevin Hawley (surrey)
on September 1st, 2014

That’s not quite right. It’s a court not a public opinion poll.
A necessity argument could be won on the facts even if the majority public opinion is opposed.
All you would have to prove is that a reasonable educated person who reviews the facts would come to the conclusion that their dependents are in imminent future danger if society continues on the same path.
That might be the only way forward since the politicians ignore the facts, perhaps we need to have judges make a few legal rulings about the validity of the science.

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By John Berg (Boston/MA/02124)
on August 31st, 2014

1. Nancy Gertner was a MA state judge, not federal.
2. Can’t find it now, but pretty sure an anti-nuke activist in MA used the necessity defense successfully- I think he’d cut down a transmission tower.

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By R. Kirby (Loveland CO 80537)
on September 10th, 2014

Looks like they’re setting a legal precedent for “you can break the law if you have good intentions.” Seems like “good intentions” was what the road to Hell was paved with. And “One man’s ceiling is another man’s floor”.

The other instances cited require an obvious emergency: a starving hiker breaking into a cabin, or a speeding father whose wife is having a baby. There’s no precedent for situations that MIGHT happen hundreds of years in the future. On this basis, someone should get away with murder if another person MIGHT attack him/her at some point in the future. These are very bad legal precedents.

There is nothing wrong with civil disobedience in a good cause, but neither MLK nor Ghandi needed to get a free pass in order to do what they saw as right. (And while I’m not certain of climate change theory, I am certain that coal burning is a high-pollution enterprise, spewing mercury and lead into the atmosphere. So I am on their side.)

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