Necessity Strategy

This guide is designed to compliment our Climate Necessity pamphlet, where you can find more information about the legal strategy and case history of the climate necessity defense.

The necessity defense: not the end, but a means.

In the age of a fossil fuel powered national government, not only are places like the New York Times Magazine and the New Yorker paying attention, but activists more broadly in the climate movement are becoming more familiar with the climate necessity defense. Now that it’s plain for all to see that the US federal government is and has been run by the fossil fuel industry, many activists are looking to the third branch of government to see if reality might take hold. Climate dissidents are more regularly wondering if the necessity defense can be applied to their case to bring climate reality into the courtroom and back into the public eye.

Not Just A Legal Strategy

Because the use of a necessity defense, on its surface, appears to be all about courts, judges, motions and legal arguments, activist defendants, who are facing legal consequences of their actions, have an understandable tendency to focus on the courtroom and criminal justice aspects of this tool. Although the necessity defense employs the legal system of courts and judges, it is fundamentally a political and an organizing strategy that continues the direct action you took in the first place into a new phase.

A necessity defense, however, is not primarily a means of seeking an acquittal or a lighter sentence (though that could happen). It is a strategy for building movement power and putting climate change front and center in the public narrative with the potential to spark the moral imagination of new people and to establish the necessity of ongoing infrastructure fights and direct action resistance work in a political reality of rubber-stamp regulators and non-existant governmental leadership on climate.

On Lawyers

Criminal defense attorneys are trained to shield their clients from risk and vulnerability related to the criminal charges they face. This means that defense attorneys tend to focus on technicalities and process when engaging judges, and they seek to plant seeds of doubt in the minds of jurors – to make them feel less certain and less empowered. This mode is grounded in the search for safety and protection, and it serves many defendants well. Defendants seeking to use a necessity defense are taking a completely different approach to their cases. Rather than shielding themselves from conviction, activists in a necessity defense trial showcases their vulnerability.

Most defense attorneys struggle to embody a different approach when their clients are prioritizing other outcomes above personal risk-avoidance. So, we want to note at the beginning of this conversation how important it is, before having conversations with attorneys, to be clear about what your goals are in your specific movement context. Be prepared for the fact that lawyers in general, even movement and activist lawyers (our friends at the Climate Defense Project and a few others excepted, of course!) will have a hard time understanding the movement goals of a political trial. Those who embrace such strategies may struggle to shake off their risk-avoidance training once they are in the courtroom.

An Organizing Strategy

As with all phases in the arc of a campaign, the goal of a necessity defense is to build power within your organization, network and movement. But this isn’t something that happens automatically when you show up in court. It takes organizing to get people to lend their support, resources, and time away from their ordinary lives to show up in court during a work day. Packing a courtroom with supporters can influence the judge, the jury and the press into understanding exactly how important this issue is, and how dire the climate crisis is. And of course, nothing can make an activist sitting at the defense table feel more hopeful or more confident in the risk that they’ve taken than a courtroom packed with people who admire and love them.

Part of the power of political trials, including necessity defense trials, is their ability to draw new types of constituents into the climate change fight. This happens because the activists on trial, by being both humble and bold, can attract the empathy of people beyond the regular climate movement. In the Bidder 70 trial, Tim politicized and engaged many people who saw him as a young man in a vulnerable situation, not necessarily because they first cared about climate change.

Have an ORGANIZER

One of our key learnings over the years of supporting this work is that is is critical to have an organizer (or more than one!) on your team. To be clear, you don’t need to hire someone to be an organizer, but having someone clearly playing that role is essential to a smooth process. Defendants need the time and space in the lead up to a trial to focus on their defense and preparation for the legal side of things. Having someone who is designated to head up the team for outreach and recruiting and dealing with all of the logistics for packing a courtroom is critical to the success of using your trial as an organizing and movement building strategy.

You’ll also want to locate responsibility for media and press work as well as social media support by people who are not defendants. In the middle of a courtroom day it’s nearly impossible for defendants to do much beyond strategizing with their legal team and ducking away for short interviews on breaks. They should be able to spend their free time talking with their loved ones and supporters who are in the courtroom with them or finding quiet space for prayer, meditation, or other centering practices.

Vulnerability as Strategy

Personal vulnerability evokes empathy and solidarity wherever the story goes, bringing new people and new energy into the movement. When we experience empathy for someone in a vulnerable position, we can gain courage where we haven’t had it, we can bring clarity in understanding the situation where.

When we put ourselves in a vulnerable position we never know who might be moved by that empathetic experience. It could be our own movement allies, or it could be the prosecutor or another political figure. In the Lobster Boat Trial in 2014 the elected district attorney, Sam Sutter, made an abrupt about face and instead of prosecuting Ken Ward and Jay O’Hara ended up joining them at the People's’ Climate March. In the Delta 5 trial, jurors committed to lobbying for climate solutions.

While these two examples highlight conversions of people outside of our networks, an empathetic response grounded in deeper relationship has the potential to alter the organizing and political landscape.

OK, One Legal Strategy

Most climate disobedience results in charges like trespassing; charges where the law being broken is not related to the system that is being opposed. (ie, we aren’t against trespassing laws, per se, just the use of them to prop up the immoral fossil fuel industry) But a necessity defense could be used to challenge the legality and morality of a law. As new anti-protest laws are being passed in states across the country, a necessity defense could potentially be an effective tool in challenging specific laws that need spotlighted by refusing to follow them. Making the decision to mount such a challenge should only be made after serious consideration of all other options and a deep investigation into the necessary strategy.

The Story

As climate activists we are so frequently trying to tell what seems like a tired story: the crisis is incredibly serious, government and corporate responses have been totally inadequate and climate disobedience is therefore necessary. And we are often trying to tell this story within an incredibly brief window of attention. As much as activists try, whether though street theater, stellar graphics or excellent talking points, the details that make cataclysm real to people often get dropped from the stories that get reported.

Court cases are a different platform that can allow the story to be told more fully. Often court cases will have more prolonged attention placed on them, and the media and public can be focused on the nuances of a particular infrastructure problem and real climate harms than they otherwise would.

Ideally, of course, we would have permission for a necessity defense to tell that story with all the experts we can think of. But even if a defense is more restricted by limitations from the court, it is possible to convey the essence of the arguments. As demonstrated in the Washington Valve Turner trial, activist defendants can speak to the state of mind under which they took their action and share their deeper motivations.

On Winning

Getting a necessity defense, even getting a necessity acquittal, is not winning. Making a legal argument in a courtroom is not stopping the fossil fuel industry. But we hope, that using a necessity defense in a long term campaign strategy it can be an effective tactic to build the power necessary to win.

Lessons

We’ve accumulated a host of lessons from working intimately on over half a dozen climate necessity defense cases, including toolboxes and templates for organizing, and plenty of other wisdom. The Climate Disobedience Center would be honored to work with you to help you think through some of the challenges in mounting a successful necessity strategy in the movement context your in, so drop us a line!


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  • Katherine O'Donnell
    commented 2018-06-28 10:04:01 -0400
    I explore the climate necessity defense and examine the expert witness testimonies in the Wawayanda 6 case against the CPV gas fired electric plant in my recent article, " From the Barricades to the Courtroom -Fighting a Fracked Gas Future in New York State " Truthout June 16 2018