Minnesota court of Appeals rules that four climate activists can use a “necessity defense”

U.S. Park Police officers arrest a group of about 40 demonstrators, protesting a tar sands pipeline, in front of the White House on August 22, 2011(CREDIT: Chip Somodevilla/Getty Images)

Does climate change pose such an imminent threat to the planet that it’s okay to break the law in order to stop it?

Four climate activists currently awaiting trial in Minnesota for shutting off a tar sands pipeline think so — and on Monday, the Minnesota Court of Appeals agreed that they should be allowed to make that argument before a jury when their case goes to trial.

“This is a big win for anyone who cares about climate change,” Kelsey Skaggs, a co-founder of Climate Defense Project and a member of the defendants’ legal team, said in a press statement. “The climate necessity defense is an important tool for pushing back against efforts by the federal government and industry to silence opposition to the reckless development of fossil fuels.”

The climate activists who shut down the pipeline in Minnesota are part of a small group of protesters known as the Valve Turners, who each shut off a different pipeline across four states in a concerted protest on October 11, 2016. The protesters involved were arrested and charged with criminal charges ranging from trespass to criminal mischief, and each has tried to use a climate necessity defense in court to argue that their actions were necessary to head off a more immediate threat (in this case, climate change).

In every state but Minnesota, judges have not allowed juries to acquit the Valve Turner defendants on the basis of necessity. That has lead to a mix of outcomes, from a conviction with jail time in North Dakota for one protester to a conviction with community service in Washington.

Last October, however, a Minnesota judge ruled that the activists could present a necessity defense — something that Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University, described to Inside Climate News as “extremely unusual.”  The state of Minnesota quickly appealed that decision, arguing that allowing defendants to present evidence about climate change would have a “critical impact” on the case and severely undermine the prosecution’s odds at achieving a conviction.

The Minnesota appellate court, however, disagreed, ruling on Monday that the defendants could mount a necessity defense. The Minnesota court’s decision, however, was not unanimous, with Judge Francis Connolly writing in his dissent that “this case is about whether respondents have committed the crimes of damage to property and trespass. It is not about global warming.”

Despite Connolly’s dissent, the Minnesota court’s ruling means that the climate activists will be allowed to call experts to testify about climate science and the consequences that inaction could pose for the world — facts that the activists argue will help strengthen their argument that shutting down the pipeline was necessary to avert the worst impacts of global warming.

As climate action remains stalled at the federal level, climate activists are increasingly turning to protest and civil disobedience to disrupt fossil fuel infrastructure projects around the country. With those acts of civil disobedience on the rise, more defendants are turning to the climate necessity defense — and some are even seeing the technique yield successful results.

Earlier this year, for instance, a judge in Massachusetts found 13 pipeline protesters that were charged with trespass for disrupting pipeline construction in Boston not responsible on the basis of necessity — in other words, the judge ruled that the illegal actions taken by the protesters had been legally necessary due to climate change.

But the West Roxbury, Boston defendants only presented their necessity defense to a judge; the Minnesota trial will be the first time that climate activists are able to present a climate necessity defense to a jury. Arguing a case in front a jury often helps attract more attention, and can help move public opinion, more than simply arguing a case before a judge.

At the same time as climate activists are attempting to use necessity defenses to justify acts of civil disobedience, Republican lawmakers — supported by the fossil fuel industry — are seeking to impose harsher penalties for environmental protest in several states.  In Louisiana, Pennsylvania, and Minnesota — all states with controversial pipeline projects currently under consideration — lawmakers have recently introduced bills that would allow prosecutors to charge individuals for “conspiracy” if they are involved in the planning of a protest that includes a civil disobedience component like trespass, even if they ultimately don’t participate in the protest itself.