What do a shipwrecked British cannibal, activist Abbie Hoffman, and a group of pipeline protesters have in common?
They’ve all used a longshot legal strategy called the “necessity defense.”
A group of 13 protesters outside Boston had their charges dismissed by a judge on Tuesday after arguing that the dangers posed by a pipeline were so dire, they had no recourse but to commit a crime to try to stop its construction. The case isn’t only the first time the strategy, called the “necessity defense,” worked for environmental protesters. The decision also sets a precedent for future defendants to use the same argument, legal experts told VICE News.
“Banking on the hope that you get a chance to present the necessity defense just got to be a better bet,” Gideon Oliver, an attorney in New York who has represented protesters charged with crimes.
The case was dismissed more than a year after the 13 protesters, including Al Gore’s daughter Karenna, were charged with trespassing and disturbing the peace after lying down in the trenches dug for the West Roxbury Lateral Pipeline on June 29, 2016. The pipeline is a project from Spectra Energy Partners (now known as Enbridge) that, since its completion, transports fracked natural gas through West Roxbury, Massachusetts.
The necessity defense essentially allows defendants to argue: “Yes, I did something illegal, but I had no legal alternative.” The illegal action, however, needs to have been aimed — at least with a reasonable expectation of success — at preventing “imminent danger.”
It’s hard to argue that the danger posed by climate change is imminent and that protesting could make a difference. Demonstrators arrested during the Flood Wall Street protests in 2015 — a group known as the Flood Wall Street 11 — tried and failed to mount the necessity defense, although they were ultimately exonerated on other grounds.
In fact, the Climate Disobedience Center, which helped represent the West Roxbury protesters, believes the case is the first time that line of defense has proven successful for protesters fighting climate change.
“The fact that there was a disregard for the safety of this community that certainly mirrored the disregard for the safety of the planet.” — Karenna Gore
The defense, however, has worked in other cases. During the Vietnam War, protesters — including activists Abbie Hoffman and Amy Carter — evaded jail time using the necessity defense for charges related to their occupation of an administrative building at the University of Massachusetts, Amherst. Two British sailors who ate their mate after a shipwreck in 1884 also argued that they had no other choice."
In West Roxbury, protesters had laid down right in the path of the proposed pipeline. Their position meant to symbolize and draw attention to mass graves being dug in Pakistan at the time, in anticipation of a deadly drought.
Local elected officials had opposed the pipeline. The city of Boston also sued Spectra, the company responsible, and lost. Therefore, the protesters argued they had no alternative but to disrupt the project.
To Judge Mary Ann Driscoll of West Roxbury District Court, the danger the protesters felt the pipeline posed to the community was clear. Fossils fuels, including natural gas, not only contribute to global warming, but pipelines leak and explode. Driscoll ultimately allowed the protesters’ argument and dismissed the charges based on necessity.
“Based on the very heartfelt expressions of the defendants who believe — and I don’t question their beliefs in any respect — who believe in their cause because they believe they were entitled to invoke the necessity defense, I’ll accept what they said,” Driscoll said, according to the Boston Herald.
“It's another step in the right direction,” Marty Stolar, the National Lawyers Guild attorney who represented the Flood Wall Street 11 said of the ruling. “Incrementally, as we go along we are reshaping the law of justification, of necessity, pushing it to areas where it was not previously thought to be applicable — but logically it is perfectly applicable.”
For Gore, the fact that the judge took climate change as an imminent threat exemplifies a shift in thinking.
“What recourse do we have in a time when corporate rights are being held over community rights?” she said. “The fact that there was a disregard for the safety of this community that certainly mirrored the disregard for the safety of the planet.”
But is the case a victory? The pipeline was still built, and the defendants didn’t have the chance to put climate change on trial, as many of them had wanted. They’d had a case ready to go, with eight high-profile climate change advocates lined up to participate, including journalist Bill McKibben and former NASA scientist James Hansen.
“We weren't allowed to present that evidence,” said Jeff Feuer, one of four National Lawyers Guild attorneys who represented the protesters. “We lost the opportunity to present that to a jury and through media coverage to the country.”
Still, the case gives future climate protesters, including a group charged with felonies for temporarily shutting down crude pipelines in Clearwater County, Minnesota, a chance at winning. In October, the judge on the case allowed the three defendants to present the necessity defense.
Cover image: Protesters gather at the Virginia Department of Environmental Quality Harrisonburg office in Harrisonburg, Va., Wednesday, Sept. 13, 2017, to speak out against two proposed natural gas pipelines — the Atlantic Coast and Mountain Valley pipelines. (Daniel Lin/Daily News-Record via AP)