Activists Are Using the “Climate Necessity Defense” in Court — and Winning

Dec. 24, 2021

Jessica Reznicek could’ve gotten away with disassembling bits and pieces of the Dakota Access Pipeline (DAPL) in Iowa and South Dakota in 2016 and 2017, slicing through metal with an oxyacetylene cutting welding torch in broad daylight without detection; but eluding the law wasn’t her primary purpose. As she made clear in a claim of responsibility, dated July 24, 2017, she wanted her sabotage of Energy Transfer, LLC’s equipment to spark “public discourse surrounding nonviolent direct action.” Though not a formal legal instrument, the claim expresses her intentions, motivations and aspirations in taking the actions that she did. After the exhaustion of all the usual tactics, after all the public comments, petitions, hunger strikes, marches, rallies, boycotts and encampments failed to stop DAPL’s construction, she had to face her truth: “[A] private corporation … has run rampantly across our country seizing land and polluting our nation’s water supply. You may not agree with our tactics, but you can clearly see the necessity of them in light of the broken federal government and the corporations they protect.”

Though the pipeline has never been properly permitted to send oil under the Missouri River, every day 570,000 barrels of oil (with an expanded capacity of 750,000 barrels and ultimately 1.1 million barrels) move through it. The current flow represents approximately 40 percent of the output from the Bakken oil fields per day. On September 10, 2020, the Army Corps of Engineers published its intention to prepare an Environmental Impact Statement, but at present the full extent of the pipeline’s contribution to climate change is unknown. In 2016 the National Oceanic and Atmospheric Administration found that North Dakota’s Bakken oil and gas field was responsible for leaking 275,000 tons of methane per year; and researchers at the University of Michigan found that the combined field in North Dakota and Montana is emitting roughly 2 percent (about 250,000 tons per year) of the globe’s ethane.

U.S. District Judge for the Southern District of Iowa Rebecca Goodgame Ebinger vehemently disagreed with Reznicek, and on June 30, 2021, she threw the book at her. On top of the 36 months to which Reznicek had already consented in her plea agreement (rather than face a possible 20-year sentence), Ebinger, an Obama appointee, heaped onto the Land and Water Protector a 60-month “domestic terrorism” enhancement, authorized by the Patriot Act. But the court wasn’t done. After eight years in a federal penitentiary, Reznicek’s liberty would be further curtailed by three years of federal supervision and an obligation to pay Energy Transfer $3.2 million in restitution. She began her sentence in FCI Waseca, a minimum-security women’s prison in southern Minnesota, on August 11, 2021, and an appeal was filed shortly after.

Bill Quigley, renowned civil rights attorney and soon-to-be Loyola University law professor emeritus who has represented Reznicek pro bono in a number of matters including the current appeal, told Truthout that the “price is way too high.” Likening her act of resistance to people who broke laws to free slaves, he said, “History shows they were not criminals but courageous leaders. I believe one day people will say the same about Jessica Reznicek.” To bolster the case, Quigley asked the Climate Defense Project (CDP), a nonprofit law firm dedicated to promoting “climate necessity defense” as a persuasive legal argument, to help educate the court and the public about this strategy.

CDP staff attorney and co-founder Ted Hamilton told Truthout the climate necessity defense’s main thrust is that “corporations and the government have acted so little, or have been so irresponsible, that maybe the laws that protect their practices and that are designed to protect private property have to be suspended, or ignored, or overcome at some point, because of the severity of the [climate] crisis.”

Though CDP is not a party to the appeal, co-founder and staff attorney Alex Marquardt filed an amicus curiae or “friend of the court” brief on November 11, 2021. He told Truthout that he devoted the last section to “the mitigating factors that the court might have considered in reaching an equitable decision.” While Marquardt’s hands were tied from arguing climate necessity defense explicitly, this section of the 48-page brief does argue that “oil pipelines are more dangerous than those who protest them.” He thinks it’s also important to say that in certain circumstances, “people can commit minor lawbreaking to avert much greater harms.” This framing aligns with CDP’s mission of putting the perpetrators of carbon and methane emissions on trial, not those who put their bodies and psyches on the line.

Marquardt, Hamilton and CDP’s third co-founder, Executive Director Kelsey Skaggs, met at Harvard Law School in 2013 when the campus divestment movement was heating up. In 2014, during their second year, the trio brought a lawsuit against Harvard to compel it to divest from fossil fuel companies. Though they lost due to issues of “standing” (the court said students did not have the authority to guide the university’s investment decisions), they accepted their defeat on technical grounds, learned from it and shifted tactics. They began to press state attorneys general who incontestably do have legal standing to compel universities to fulfill their fiduciary and stewardship duties, and they’ve garnered some major wins: In September, Harvard announced that it would divest its $41.9 billion endowment from fossil fuel investments, Boston College has also done so and as Cornell University will do in stages by 2027.

Like the divestment work, CDP’s engagement in the arena of climate necessity defense has also yielded dramatically tangible court victories, especially remarkable given the relatively short time the team has been working at what has been thought of as a pretty obscure legal argument — even kind of “out there,” according to Hamilton. They landed on it by actively looking for ways to work on climate that bypassed the political system. “We didn’t want anything that was too reliant on that system, which seems so broken, or even regulatory mechanisms, which just seem to wax and wane with each change of the administration,” Marquardt recalled. “We were looking for climate arguments that came out of grassroots climate organizing.”

They were likely still in high school in 2008 when Tim DeChristopher impulsively bid $1.8 million on 22,500 acres at a federal oil and gas lease sale in Salt Lake City he’d planned on merely disrupting. When the University of Utah student couldn’t pay for his 14 parcels and was criminally charged, he attempted to invoke climate necessity defense, and though unsuccessful in avoiding penalties, the idea gained more widespread attention. (Obama canceled the sale when he took office, so it turned out to be a highly successful action.) The defense tactic was picked up in May 2013 by two climate protesters who were arrested for using a lobster boat to try to block delivery of coal to the Brayton Point Power Station in Somerset, Massachusetts, just a little over an hour’s drive from their campus. Their attorney proffered a climate necessity defense and District Attorney for Bristol County Samuel Sutter not only dropped the charges, but he also embraced their defense in a remarkable press conference on the courthouse steps, saying: “It was certainly a decision that took into account the cost to the taxpayers in Somerset, but was made with our concern for their children, the children of Bristol County and beyond in mind. Climate change is one of the greatest crises our planet has ever faced.”

Inspired by its potential, Marquardt, Hamilton and Skaggs invited one of the defendants and their attorney to the law school to talk to the law students. They learned that climate necessity defense was a refinement of the broader category of political necessity defense used for centuries in American jurisprudence by antiwar and labor organizers, among others. They began to formulate a plan to build an organization to pursue this work, post-graduation. Mentored by a clinical law professor on faculty, the law school itself helped them develop a winning funding proposal and secure the support to transform their pipe dream into a pipeline-fighting reality. Marquardt says, “We were lucky to be at a rich school.”

Three years later, Ken Ward, who’d been one of the two lobster boat protesters, participated in a coordinated action in Washington State on October 11, 2016, with four other “valve turners” stationed in North Dakota, Minnesota and Montana. Together, they turned off the flow of tar sands oil from Canada, completely stopping it for a few hours in an attempt to draw attention to climate destruction, and equally to demonstrate how the climate necessity defense can be used to educate our fellow citizens about effective action.

But, Marquardt explains, things didn’t go as planned. “When it starts looking like a person might be allowed to put on a climate necessity defense, the prosecutor will often drop the charges,” he said. “They like to focus on what you did, not why.” Charges were dropped against two of the defendants, and the use of the defense was barred outright for the other three valve turners. Nonetheless, Ward fought on, and with Skaggs on the appellate legal team, his case proceeded through the Washington courts until he won. On September 4, 2019, the Washington Supreme Court refused to challenge an April 8, 2019, ruling by the state’s Court of Appeals that had reversed the lower trial court’s refusal to hear climate necessity defense at Ward’s criminal trial. Although this was a limited ruling that clarified internal contradictions in the state’s court, it both allowed for Ward to argue necessity in his own defense whenever he is retried, and set the stage for an even more significant victory.

On January 4, 2021, CDP filed an amicus curiae brief on behalf of a host of law professors concerned about curtailments on the right to protest. The case concerned Rev. George Taylor, a member of Veterans for Peace, who on September 29, 2016, blocked railroad tracks to prevent trains carrying coal and oil to traverse Spokane, Washington. CDP urged the court to allow the climate necessity defense to be heard in this case, citing it and civil disobedience’s importance generally as functional safety valves for a system already under strain due to climate inaction by the political system. On July 15, 2021, the Washington Supreme Court did allow it, in a 7-0 vote, marking the first time the highest court in a state has recognized the climate necessity defense.

“Judges and members of the legal establishment are finally recognizing the severity of the crisis, and understanding how law can be applied to climate change and civil disobedience,” said Hamilton. “It’s not primarily better lawyers or arguments, but more understanding that normal avenues of political change aren’t working.”

Even with the steady drum roll of victories, Marquardt has concerns about the limits of the legal system which doesn’t typically like to wade into the terrain of issues that are usually decided by the political system. He’s concerned about the widening gap between states that are expanding protections for protesters, like Washington, and the many states aggressively restricting them. Marquardt says he’s worried about the continued efficacy of the jury system. His personal nadir was listening to the jury pool being interviewed at a voir dire (jury selection) hearing in North Dakota for a valve turner trial. Potential juror after juror said they would not be able to apply the law in an unbiased way. Juries are bastions of democracy, and one of the few last remaining vital democratic forums, he says. In working with expert political scientists drawing on empirical data, he’s learned that voting, attending civic meetings and speaking with your political representatives are all less and less effective “unless you’re a wealthy person or one with a business interest and can just hire lobbyists to make your voice heard.” Some of the rhetoric the prosecutors articulated at the valve turner trial was disturbing, he says.

“They’d use words like jihadists,” Marquardt says, “so there was this racial element as well, and a deliberate strategy to equate protesters to terrorists. How cynical is it for people to use the 9/11 attacks to advance their agendas?”

Just over the border, Canada has already adopted an anti-terrorism frame for their prosecutions of pipeline activists, passing applicable provisions in 2015 to The Protection of Canada From Terrorists Act. The decision in Reznicek’s appeal, when it comes, is eagerly anticipated as a crucial test as to whether Water and Land Protectors in the U.S. will be successfully branded as eco-terrorists, and punished as such. But it is also something else, Quigley says.

“Jessica Reznicek’s case is one of the highest profile examples of a courageous person putting herself at risk in order to try to literally save human life on earth. Not many people risk their freedom for climate justice.”

[Top photo: An activist hold up a placard saying, "We Are Here to Protect, Water is Life" during the demonstration. Protesters gather in solidarity with Wetísuwetíen Land Defenders in Toronto, Canada, on December 21, 2021. KATHERINE CHENG / SOPA IMAGES/LIGHTROCKET VIA GETTY IMAGES]