Climate change and the new civil disobedience


Friday marked the 86th anniversary of Mr. Martin Luther King’s birth (even though the national holiday will be on Monday). As time marches along, the brilliance of his efforts to bring freedom and civil rights to African-Americans during the 1950s and 1960s grows brighter and brighter. The cornerstone of his campaign to end desegregation in the Deep South was civil disobedience — the idea that some laws were so clearly unjust that there was a moral obligation for citizens to disobey them. And indeed, society did come around on finally ending the so-called Jim Crow segregation laws that had persisted in the southern U.S. for decades.

Today, there’s a new avenue for civil disobedience: Climate change. Over the last couple of years, and especially in recent months, more and more activists have grown frustrated with the lack of action from the U.S. government. The drumbeat of news reports, month after month, that the planet has recorded yet another record for high temperatures — coupled with the lack of any urgency in weaning America off its fossil fuel addiction — have made some protesters willing to take extreme risks, legal and otherwise, to call attention to global warming.

This past summer, I told you about the so-called “kayaktavists” of the Pacific Northwest — who paddled around ports in Seattle and elsewhere to trying to prevent Shell Oil from transporting its massive offshore drilling rigs to the Arctic waters off Alaska. In the short run, this daring flotilla of environmental activists wasn’t quite enough to prevent the rigs from reaching their destination. But in the bigger picture, the “good guys” won; Shell abandoned its Alaska drilling mission, and the federal government — at least under President Obama — won’t be offering new drilling leases.

Now, not far away in a Washington state courtroom, a different group of activists is seeking to convince a jury that it was following a higher, moral law, in attempting to block a train loaded with crude oil:

A jury in Washington state is hearing evidence on whether the threat of climate change is a justifiable defense for criminal acts, the first time such a defense has been allowed in an American court.

On Thursday, in a tiny municipal courtroom amid the strip malls and ranch houses of this suburban community north of Seattle, defense attorneys for five climate activists will call the final witnesses in their “Hail Mary pass” that has set up a historic legal showdown.

The five activists – Michael LaPointe, Patrick Mazza, Jackie Minchew, Elizabeth Spoerri and Abigail Brockway – face misdemeanor charges of criminal trespass and obstructing a train for a September 2014 protest. The group erected an 18ft metal tripod over railway tracks in Everett, Washington, in order to block train shipments of crude oil and coal. 

The defendants – who have been dubbed the “Delta Five” by their supporters – admit they knowingly broke the law in stopping the train. Their unique legal argument, known as a “necessity defense”, is that their actions were a moral imperative because not breaking the law would result in catastrophic harm to the planet. Though the necessity defense was used successfully by climate change activists in England in 2008, it has yet to be allowed and tested in a trial in the United States.

The challenge for the activists now is to convince the jury that they had no alternative but to break the law, that the likely harm from their failure to act against climate change is greater than the damage that would be caused to society by doing nothing. In testimony, the oil-train protesters are telling the story of how they’ve lost faith in the ability to effect change through politics-as-usual. There are precedents in modern American history; in the early 1970s, a large group of anti-war protesters who broke into a Selective Services office in Camden, N.J., were acquitted after they put the conduct of the Vietnam War on trial.

“The reality of climate urgency will force judges and juries to rethink what is ‘reasonable’, because the process of law is so slow,” said Mary Wood, a professor of environmental law at the University of Oregon told the Guardian newspaper. “As scientists urge immediate action to slash carbon emissions, many drawn-out political and legal processes that may have been ‘reasonable’ to pursue two decades ago now extend beyond the short window of time left available to act.”

It’s unfortunate that it’s come to this. As an environmental attorney with more than 25 years experience, I’ve seen far too many cases where government officials were in the back pocket of polluters and completely unresponsive to the private citizens who are getting dumped on. From gay rights to ending segregation, civil disobedience has proven a surprisingly effective tool for changing the political conversation. I applaud the new generation of new climate-change activists — and I have to think that Dr. King would applaud them as well.

Learn more about the Washington state oil-train protests from The Guardian:

Learn more about the need for worldwide action on fossil fuels in my new book, Crude Justice: How I Fought Big Oil and Won, and What You Should Know About the New Environmental Attack on America

© Stuart H. Smith, LLC 2015 – All Rights Reserved

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Stuart H. Smith is an attorney based in New Orleans fighting major oil companies and other polluters.
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