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A New Legal Precedent May Have Been Set During the Trial of New York Climate Change Activists

The activists were arrested during a protest on Wall Street prior to a UN summit in September, and argued that climate change poses such grave risks to humanity that they were compelled to violate the law.
Photo by John Minchillo/AP

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Ten climate change activists, who pled not guilty to disorderly conduct charges, were found innocent in Manhattan Criminal Court on Thursday, but not for reasons they had originally sought. Nonetheless, they believe they helped set a powerful legal precedent for the climate movement.

Applying a necessity defense, Martin Stolar and Jonathan Wallace with the National Lawyers Guild argued that the public threat posed by climate change is so severe the activists had no other choice but to commit acts that violated the law and highlight Wall Street investment in the fossil fuel industry.


"The legislative route to reform is blocked, because big money interests have bought it out," Stolar told VICE News. "Besides legislation what other routes have we got to go? Buy the companies? That's one way to go about it but that takes a lot of capital." Capital that few but the most wealthy possess, he emphasized.

'Breaking those rules is both moral and urgent.'

Assistant District Attorney Laura Higgins refuted the necessity argument. "Their purpose was admirable," she told presiding judge Robert Mandelbaum "but their actions were unlawful."

The Flood Wall Street activists, who numbered 11 until one of them accepted a plea deal for medical reasons on Monday, attracted enthusiasm from across the environmental movement.

"The #Flood11 are using their trial to amplify the message that when the rules of the game lead us straight to climate chaos, breaking those rules is both moral and urgent," Naomi Klein, author of This Changes Everything: Capitalism vs. The Climate said in a statement of support.

But Judge Mandelbaum shut down the necessity defense early on, even while conceding the defendants had grounds for concern.

"Climate change is a grave problem, I have no doubt about it," Mandelbaum said from the bench on Monday — a stance he reiterated often throughout the four day trial. Yet, global warming remains "too vague and abstract" a threat for the necessity defense to apply.

Instead, the activists were spared the up to fifteen days in jail and $500 a disorderly conduct change carries because the NYPD issued them a bogus dispersal order. Judge Mandelbaum concurred with alternative arguments put forward by the defense that the activists' First Amendment rights to freedom of speech and peaceful assembly were violated when they were commanded to disperse from the entire area surrounding Wall Street, rather than to simply vacate the street. Therefore, the order they refused to comply with was unlawful to begin with.


"It's great to go from the streets into the courtroom and win," said Flood Wall Street defendant John Tarleton, who was pleased by the verdict even though it was not on the terms he and his co-defendants had sought.

Related: The risk of climate catastrophe is so severe we had to break the law, say activists

His attorney, Martin Stolar noted that Judge Mandelbaum's unequivocal acknowledgement of climate change likely established what's called a "judicial notice." If, for example, someone wanted to sue Peabody Energy or a Wall Street investment bank for its role in exacerbating climate change they could cite the Flood Wall Street trial as legal recognition that climate change is an irrefutable phenomenon.

The catch is, the activists will have to ask the court to release its record of the trial first, since transcripts are sealed automatically when defendants are found not guilty, a step many of the defendants indicated to VICE News they are eager to take.

"Climate change is going to be a lot less vague and abstract in the future," said Tarleton. "The fact that judicial notice was taken of climate change — that is a breakthrough. Hopefully it will pave the way for another day when defendants will actually win a case on a necessity argument. I feel we helped pave the way for that."

Follow Peter Rugh on Twitter: @JohnReedsTomb