How Not to Save the Planet

Last year, I expressed misgivings about efforts by those concerned about the climate crisis to rely upon the “necessity defense” when prosecuted for acts of civil disobedience intended to raise awareness about America’s refusal to commit to an expedited transition away from fossil fuels. At the time, I was concerned that if climate hawks were acquitted for acts of civil disobedience by claiming that their actions were justified by the harm human-caused climate change has inflicted and will continue to inflict upon society, it would create an unfortunate precedent that the radical anti-abortion movement would seize upon to further curtail reproductive rights. (There is, of course, an argument that reproductive rights are a sine qua non for climate stability–after all, one cannot and should not have infinite population growth on a finite and warming planet–but we will leave that argument aside for now.)

Last week in Montana, there was another opportunity for a bad precedent to be set in terms of the possible exploitation of the “necessity defense.” Thankfully, it was avoided, although it appears that another injustice may have been created in the process:

A Montana jury took just one hour to find climate activist Leonard Higgins guilty of misdemeanor trespassing and felony criminal mischief on Wednesday for his role in the “valve turner” protest that briefly shut down the flow of Canadian crude through pipelines in four U.S. states last year.

The 65-year-old former [Oregon] resident is scheduled to be sentenced Jan. 2 by Judge Daniel Boucher in Chouteau County District Court.

He faces a potential maximum penalty of 10 years in prison on the criminal mischief count.

The 12-person jury could have found Higgins guilty of a lesser charge but determined that his actions caused more than $1,500 in damage to the pipeline’s owner, Spectra Energy (now Enbridge Corp.), making the criminal mischief a felony offense.

Higgins’ lead defense attorney, Herman Watson IV of Bozeman, said his client intends to appeal the verdict to the Montana Supreme Court…

Like his four fellow valve turners, Higgins had hoped to employ a necessity defense, which would have allowed him to argue that his crimes were justified by the imminent danger to humanity of climate change caused by burning fossil fuels. Boucher denied that motion, saying that “the energy policy of the United States is not on trial.”

The trial began on Tuesday with the arguments focusing on the monetary value of the damage incurred by Spectra Energy on Oct. 11, 2016, when Higgins used bolt cutters to enter a fenced enclosure near Coal Banks Landing and close an emergency shutoff valve on the Express pipeline, which transports crude oil from Canada’s tar sands region to refineries in the United States. The company, which was warned about the action by two phone calls from Higgins’ fellow activists, had already stopped the flow of oil through the pipe.

Under no circumstances does Higgins deserve 10 years in prison; heck, even one hour in prison would be excessive punishment for this sort of action. One hopes that wisdom will guide Judge Boucher’s sentencing decision. However, had Boucher allowed for the necessity defense, and had Higgins been acquitted on that basis, it would have opened an anti-choice Pandora’s Box.

Anyone who doesn’t think the radical anti-abortion movement isn’t paying close attention to the nascent effort by climate activists to use the “necessity defense” when prosecuted for civil disobedience, and will not seek to exploit the precedent of acquittals based on the “necessity defense,” underestimates that movement. As I noted last year, the radical Christianist who murdered Dr. George Tiller in 2009 attempted to use the necessity defense, but was blocked on a technicality. If climate activists are acquitted for acts of civil disobedience using the “necessity defense,” the radical anti-abortion movement, which also believes it’s saving the lives of future generations, will not hesitate to take advantage of this precedent in order to escalate efforts to interfere with access to women’s health care–perhaps not to the extreme of the fellow who murdered Dr. Tiller, but certainly to the level of making it practically impossible for women to exercise their right to choose by becoming, in effect, legally sanctioned nuisances at reproductive clinics, nuisances that compel those clinics to shut down.

Activism does not exist in a vacuum. One can share the desire of supporters of the climate necessity defense for strong action to reduce emissions while being highly concerned about the malefactors in our society who want to get away with their own right-wing version of civil disobedience. Ultimately, the courts will not save us from the climate crisis. Not the necessity defense, not doomed lawsuits attempting to force the Trump administration to reduce our dependence on fossil fuels. The solution to the climate crisis is political, not legal. The necessity defense won’t keep oil, coal and gas in the ground where they belong. Only future elections will.

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D.R. Tucker

D. R. Tucker is a Massachusetts-based journalist who has served as the weekend contributor for the Washington Monthly since May 2014. He has also written for the Huffington Post, the Washington Spectator, the Metrowest Daily News, investigative journalist Brad Friedman's Brad Blog and environmental journalist Peter Sinclair's Climate Crocks.