Activists Lose Criminal Case on Climate Change Defense – but Judge Praises Effort

Five environmental activists who failed to convince a court that their attempt to block crude oil trains near Seattle was a legally justifiable act of civil disobedience on Friday were nonetheless praised by a judge as “part of the solution” to climate change.

On Friday, the campaigners were convicted in a court in suburban Seattle of misdemeanor trespassing relating to a September 2014 protest in which they blocked railway tracks used by crude oil trains in Everett, Washington.

They were acquitted of a second count of misdemeanor obstructing a train.

The so-called “Delta 5” – Michael LaPointe, Patrick Mazza, Jackie Minchew, Elizabeth Spoerri and Abigail Brockway – had hoped that their trial would mark the first time that a US jury was allowed to consider the “necessity defense” in a case of climate activism.

The defendants intended to argue that their acts, though illegal, were necessary to prevent the greater harm of catastrophic climate change.

But after allowing two days of expert testimony on topics ranging from the Paris climate talks to railway safety standards and the health impacts of particulate matter, Judge Anthony E Howard ruled that the defense had failed to present sufficient evidence to show that the defendants had “no reasonable legal alternative” to trespassing on a private rail yard and blocking trains.

The case is a blow to environmental campaigners but marks the furthest defendants have managed to go in an American courtroom using the so-called “necessity” defense that argues such actions are justified to combat catastrophic climate change. 

The activists progressed unusually far because Howard allowed them to call expert witnesses to testify to the harms of climate change, even though he later felt compelled to instruct the jury to disregard their evidence.  The judge appeared to do so reluctantly, expressing some sympathy for the activists in a court on Thursday.

“Frankly the court is convinced that the defendants are far from the problem and are part of the solution to the problem of climate change,” Howard said from the bench.  But, he added: “I am bound by legal precedent, no matter what my personal beliefs might be.”
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The defense has been used successfully in the UK, where a jury acquitted six Greenpeace protesters in 2008 after they argued their occupation and damage to a Kingsnorth coal-fired power station in Kent was justified by the threat of climate change.

Beyond the necessity defense, some climate activists are looking at other strategies in the US to challenge the limitations of statutory law and push for urgent governmental action to limit climate change.

“Our legal principles have to account for the clear, imminent danger perpetrated by the fossil fuel industry,” said Mary Wood, a professor of environmental law at the University of Oregon.

Wood is an advocate for applying “public trust doctrine” to climate change, arguing that a government has a fundamental responsibility to preserve crucial resources like the land, water, and air that “predates statutory law”.

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