Climate Protests and the Necessity Defence:International Developments
Benjamin J. Richardson
Professor of Environment Law, University of Tasmania, Australia
I. Protesting Against Climate Inaction
With electoral politics struggling to generate the ambitious laws urgently needed to avert global climate breakdown, environmental activists are increasingly resorting to civil disobedience to leverage change. Their protests represent a rejection of the adequacy of environmental law mechanisms for public consultation developed over the past half century, and as consolidated in international standards enunciated by the Aarhus Convention of 1998. This brief essay examines the how climate protesters have confronted hostility to their civil disobedience, and their attempts to develop novel legal arguments based on the common law “necessity” defence to justify their actions.
International social movements for climate justice, spearheaded by Extinction Rebellion (XR) and the youth-led climate strikes, are upping the pressure to radically transform climate governance at global and national levels. XR rejects “reformist” green politics in favour of mass mobilizations to cause civil disruption that compels governments to meet its three core demands: tell the truth about the climate emergency; drastically cut carbon emissions; and convene citizens’ assemblies to develop new environmental policies. The youth-led climate strikes, associated with Greta Thunberg, involve school students periodically skipping classes to participate in protests against climate inaction. Localized protests targeting specific grievances also are erupting, such as Indigenous First Nations in Canada blockading oil pipelines on their traditional homelands. Civil disobedience is not new, of course – consider the Occupy sit-ins (responding to the 2008 Global Financial Crisis), and the earlier anti-nuclear movement, but its intensity and prevalence has grown markedly in relation to climate concerns.
Figure 1: XR’s “Dead Sea March,” 3 October 2020, Hobart, Australia; photograph by Benjamin J. Richardson
Figure 2: Youth Climate Strike, 20 September 2019, Hobart, Australia; photograph by Benjamin J. Richardson.
Protest and civil disobedience are not undertaken by climate activists to the exclusion of other strategies to leverage change. For instance, on 23 September 2019 sixteen children, including Thunberg, filed a petition against five nations (Argentina, Brazil, France, Germany and Turkey), alleging violations of the United Nations (UN) Convention on the Rights of the Child. Their petition asserts that their rights to life, health and culture are being transgressed because governments are failing to address climate change. Another pioneering case was brought in September 2020 by a group of Portuguese children to the European Court of Human Rights, seeking urgent fossil fuel mitigation by 33 countries. These and other examples of strategic international complaints or litigation complement rather than compete with efforts to push for climate action through grassroots protest.
2. The Climate Emergency Necessity Defence
Some governments are beginning to formally acknowledge a climate emergency. Canada’s House of Commons declared a national climate emergency in June 2019, passed by a large majority of votes, and numerous Canadian municipal governments have issued similar declarations. The New Zealand government in November 2020 also affirmed a “climate emergency”. In declaring them, a government authority or legislature effectively concedes the urgency to address global warming and that existing measures have not been sufficient.
Yet, protesting against climate inaction has in some jurisdictions seemingly back-fired, as some governments have responded unsympathetically by introducing bespoke, anti-protest laws. In Australia, several state-level governments have enacted anti-protest laws with draconian penalties, strong police powers, and broad offences, with the effect of prioritising environmentally damaging developments over the rights of individuals to access public land and protest. In the United States (US), the governors of Kentucky, South Dakota and West Virginia, among others, have approved laws designating gas and oil infrastructure, such as pipelines, “critical infrastructure” to be protected by higher criminal penalties for any interference. In the United Kingdom (UK), the Police, Crime, Sentencing and Courts Bill 2021, currently under parliamentary consideration, offers police more powers to restrict protests. Such laws reflect what Naomi Klein dubs “the shock doctrine”: the collision between business and political elites to introduce controversial changes to the law under the pretext of a public emergency relating to law and order or the Covid-19 pandemic (but not climate change).
Conversely, climate activists are appealing to international human rights, such as the International Covenant on Civil and Political Rights, and citing global climate science, in arguing their actions should be excused from police prosecutions. Criminal law in many countries forgives a malfeasance if the act was necessary to avoid an imminent public or private injury of greater magnitude. Blockading trains, locking on to security gates or occupying civic spaces, are among actions that climate protesters believe justifies breaking the law, for a mere temporary inconvenience to the public, in order to help prevent the breakdown of the climate.
The climate emergency necessity defence is tentatively being recognized by courts in a variety of jurisdictions, although yet without higher court endorsements, and sometimes as a result of jurors’ defying judges’ instructions.
The first such case in the UK was in 2008 when six Greenpeace activists were charged with £30,000 of criminal damage at a coal-fired power station. The jury cleared them after the trial judge advised that the necessity defence required clear evidence that the defendants’ action was due to an immediate need to protect property belonging to another. Such evidence was tendered from a leading climate scientist, Professor James Hansen, that the 20,000 tonnes of carbon dioxide spewing daily from this behemoth facility would contribute inter alia to the extinction of up to 400 species and sea level rises around England.
With the recent upsurge in environmental activism, the climate emergency defence is again being invoked. In May 2019, a London jury, in defiance of a judge’s instructions, cleared two prominent XR activists of charges connected with their spray chalking a university building with anti-fossil fuel messages. Yet in a second English case later that year, three XR activists who had glued themselves to a commuter train failed with their necessity defence, although the sentencing judge, who spared the trio gaol, acknowledged their “noble” intentions to “protect all human life”. In a third UK recent case, an activist was acquitted of charges stemming from her spray painting XR symbols on the offices of Cambridgeshire County Council after the court acknowledged the gravity of climate breakdown and the complicity of the municipal government owing to its policies.
The climate necessity defence has been tested in several cases in the United States (US), in most instances without success. In February 2020, a majority of a US jury refused to convict five XR activists who presented the climate necessity defence at their trial after blockading a train track in Oregon used to transport crude oil. Conversely, in 2019 a Washington court convicted five climate activists of trespassing after they failed to persuade that blocking trains carrying oil was legally justifiable civil disobedience. Whilst US case law on the necessity defence in instances of environmental protest shows little to give climate activists confidence, US legal commentators observe that “judicial opinions regarding climate change and the procedural rights of political protesters are changing”.
Australian courts have also considered the climate emergency defence, and whilst sometimes uttering sympathetic words, they have yet to affirm the defence. In Queensland in 2019, an anti-coal protester who tried to block a railway line to a major coal terminal was unable to satisfy the court that his actions fell under section 25 of the Queensland Criminal Code, which uses the language of an “extraordinary emergency”. The court heard from Professor Brendan Mackey, who has worked for the Intergovernmental Panel on Climate Change, that dangerous climate change is an immediate threat behoving action now through all avenues. The climate emergency defence was also unsuccessfully invoked by three XR activists in another Queensland case heard in June 2020. Interestingly, the magistrate here acknowledged evidence of a climate emergency, and that the defendants honestly and reasonably believed they were compelled to protest, but he determined that there was no evidence that it was necessary for the trio to protest in their chosen manner and time. The latter Queensland case was heard in the wake of Australia’s most catastrophic wild fires in the summer of 2019-2020, scorching millions of hectares of forest and damaging much property.
Even where the climate emergency defence has not been invoked, defendant protesters have still tendered statements rationalizing their actions in the hope of gaining some judicial leniency and media publicity. In sentencing 15 guilty XR rebels without recording a conviction, a Tasmanian magistrate in June 2021 spoke of the importance of civil disobedience in fostering social change, and the significant and positive role of nonviolent direct action in shaping Tasmania society through history.
Figure 3: Extinction Rebellion “die in”, 3 October 2020, Hobart, Australia; photograph by Benjamin J. Richardson
In Canada, the defence of necessity bas been invoked on a few occasions by environmentalists over recent years, beginning with anti-forestry protests. It was raised in regard to the climate emergency in 2018 when protesters in British Columbia were convicted of impeding construction of the Trans Mountain Pipeline for transportation of oil sands bitumen. The defendants were unsuccessful in raising the defence of necessity in the context of their argument that the pipeline, owned by the Canadian government, constitutes state action threatening citizens' right to a stable climate, which they argued is protected by section 7 of the Canadian Charter of Rights and Freedoms. Their judicial appeal was also unsuccessful.
Two cases from continental Europe demonstrate the applicability of the climate emergency defence to civil law systems. In France, the defence was successfully availed in 2019 to help acquit climate activists who entered a town hall in Lyons to remove a portrait of President Macron, whom they accused of being lax on climate action. In reviewing tendered evidence of governmental inaction, the court recognized that “faced with the State’s failure to comply with objectives which could be perceived as minimal in a vital domain, the means of expression of the citizens in a democratic country cannot be limited to voting at electoral times but other forms of participation must be invented within the framework of our duty of critical vigilance”. In Switzerland, the necessity defence was also successfully invoked in 2020, in a trial of climate activists who occupied a Credit Suisse bank branch, where they played a tennis game to protest against the bank’s fossil fuel investments. Acquitted of the criminal charges, the defendants called expert witnesses including Nobel Laurette Jacques Dubochet to explain the gravity of global warming from climate inaction.
With international judicial precedents emerging and governments increasingly acknowledging a climate emergency, coupled with increasing grave forecasts from the Intergovernmental Panel on Climate Change, such as its Sixth Assessment report issued in August 2021 that calls for urgent action to mitigate emissions to avoid catastrophic impacts, one should expect courts to become more receptive to extending the necessity defence of necessity to prosecutions arising out of climate activism. Yet, such judicial acceptance of a climate emergency may not happen with sufficient urgency. Climate breakdown does not readily register in people’s senses to incite a feeling of impending danger; instead, it is commonly perceived as slow, accretive damage, over many decades, such as rising sea levels and acidifying oceans. These sensory deficits and temporal displacements of a changing climate diminish its potency to terrify people. The most immediate threats from climate change thus far have been devastating forest fires, in Canada, the United States, Greece and Australia, which to those who have personally encountered such infernos surely induce a sense of a grave emergency.
Even if accepted by more courts, the climate emergency defence does not in itself resolve how to undertake urgent international and national action on global warming. But by emboldening climate activists and generating further media publicity for them, the legal defence may help spur better laws and policies from authorities wishing to minimize public disruption or inconvenience. Alternatively, there is a risk that more hostile governments may choose to introduce harsher anti-protest legislation and even explicitly legislate to bar any climate emergency defence to criminal prosecutions.
Benjamin J Richardson is a Professor of Environmental Law at the University of Tasmania. His international academic career has spanned law faculties in Australia, Canada, New Zealand, the Netherlands and the United Kingdom, and formerly he held the Canada Research Chair in Environmental Law at the University of British Columbia, and the Global Law Visiting Chair at Tilburg University, the Netherlands. He practises environmental stewardship at his Tasmanian eco-sanctuary, Blue Mountain View.
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