Four Keys to Building a Strong Environmental Damages Case
In a groundbreaking decision, a Massachusetts judge ruled last week that two men facing criminal charges in connection with their obstruction of a power-plant-bound coal freighter could defend themselves on grounds that their actions were necessary to combat the greater evil of climate change.
On May 15, 2013, the protestors, Ken Ward and Jay O’Hara, deliberately anchored a lobster boat in the pathway of a coal freighter as it sought to deliver its cargo to the Brayton Point Power Station in Somerset, MA. Ward and O’Hara succeeded in blocking the freighter for several hours, until they were removed by the Coast Guard and the Massachusetts State Police. The goal of Ward and O’Hara, as stated in their manifesto, was to bring about the immediate closure of the power plant, “an outcome necessary for planetary survival.” Brayton Point is one of the largest emitters of greenhouse gases in the northeastern United States. According to Ward and O’Hara’s manifesto, in the face of climate change and global warming, the “only reasonable and ethical action is to call a halt to the ghastly fossil fuel experiment, starting with coal.”
For their obstruction of the freighter, Ward and O’Hara were charged with numerous criminal offenses, including criminal conspiracy and disturbing the peace. Their trial was ultimately scheduled for September 8, 2014, in the Fall River District Court. Prior to the trial date, their attorney announced to the judge his intention to offer a defense of “necessity”—that is, that his clients’ conduct was justified as a necessary means of averting the greater harm caused by the power plant’s burning of coal.
The defense of necessity, also known as the “competing harms” defense, has long been recognized in the criminal law. However, a judge’s allowance of the defense in this context—a defendant claiming that obstructing a carbon polluter was necessary to prevent the greater harm of climate change—appears to have been unprecedented in the United States. Judges in similar cases elsewhere have refused to allow the defense to be presented to a jury, ruling that the defense may only be used at trial where there is evidence that the defendant’s conduct could plausibly have prevented the greater harm. These judges’ rulings reflect a narrow interpretation of the traditional definition of the necessity defense—according to which, in Massachusetts, it must be evident that “the defendant can reasonably expect that his [or her] action will be effective as the direct cause of abating the danger.” Commonwealth v. Schuchardt, 408 Mass. 347, 349 (1990).
Because Ward and O’Hara’s conduct, by itself, was not literally (or at least, not plausibly) calculated to avert climate change, their use of the necessity defense required a judge’s willingness to expand the traditional definition. Press reports of pre-trial proceedings in the case indicate that the presiding judge at the Fall River District Court, Joseph Macy, was initially disinclined to allow the defense, but ultimately ruled that Ward and O’Hara could call expert witnesses to testify to the harm caused by burning fossil fuels [read this report]. For the judge to allow such testimony was, in effect, to approve the use of the necessity defense, because the testimony would have been irrelevant otherwise.
As it turned out, the trial did not occur. On the scheduled morning of trial, Bristol County District Attorney Samuel Sutter decided to drop or de-criminalize each of the charges against Ward and O’Hara. It is not clear whether, as some have speculated, Sutter’s decision was motivated by the judge’s allowance of the necessity defense. At trial, Sutter’s office would have been put in the position of downplaying the danger of carbon pollution, compared to the danger of two peaceful protestors in a lobster boat. Presumably, for Mr. Sutter, this was an unenviable prospect. In any event, the judge’s decision to allow the defense is a watershed moment. Judges, defense attorneys, and prosecutors around the country will surely take notice.
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