The Novel Defense That Climate Change Activists Are Using in Court

In January, five climate justice activists charged with criminal trespassing in Washington state presented a novel defense. Their decision to block the passage of a train in the BNSF Delta rail yard in September 2014 was necessary, they argued, because of the catastrophic threat of climate change.

The so-called bomb train was carrying Bakken crude, an especially dirty type of oil. Since 2013, there have been at least two dozen fires and explosions aboard trains carrying the crude, which is highly flammable.

The trial of Mike LaPointe, Patrick Mazza, Jackie Minchew, Liz Spoerri and Abby Brockway — known as the Delta 5— was the first time this ​“climate necessity defense” has been presented before a jury in a U.S. courtroom. A necessity defense is used when a defendant claims there was no choice but to break the law — by trespassing in order to escape physical harm, for example.

Anti-nuclear activists have previously used this defense to argue the harm they’re protesting is greater than any harm caused by civil disobedience. In 2011, activist Tim DeChristopher attempted to use a climate necessity defense against two felony charges, which he received after sabotaging a federal auction to stop public lands in Utah from being sold to gas and energy companies. The judge did not allow this defense, and he was sentenced to two years in prison. 

The Delta 5, however, were permitted to argue that the threat of climate change requires direct action. In a four-day trial, they drew testimony from climate scientists, policy experts and doctors. The protesters won praise from Snohomish County Judge Anthony Howard, who called them ​“tireless advocates of the kind we need more of in this country.” Ultimately, however, the judge decided that the testimony hadn’t met one of the four criteria for a necessity defense — that there was no reasonable legal alternative to the defendant’s actions. A jury found the group guilty of trespassing and acquitted them on a second count of train obstruction. While the protesters received probation and fines, they avoided jail time. The case also set an important moral and legal precedent for further actions. The testimony given was the ​“most comprehensive case for climate action … that I’ve ever seen in an American courtroom,” DeChristopher said in an interview with Democracy Now! ​“It’s a tremendous resource for future activists taking their case to court.”