Last month, the United Nations released its most alarming climate report yet. The report warns that drastic action to limit carbon pollution will be required if the world is to avert trillions of dollars in damage and lost lives by 2040, and that many of the costs of climate change are already being felt.
Insurers, utilities, and government agencies have borne some of those costs—for instance, in the wake of hurricanes and wildfires—but individuals have also borne them directly, with disproportionate burdens on the poor, people of color, and women.
It’s time to challenge the system producing those costs. Voters had a chance to do that on Election Day, deciding whether to tax big carbon polluters in Washington State, restrict fracking in Colorado, and boost renewable energy in Arizona and Nevada. But the fossil fuel industry spent record amounts to oppose the measures: about $100 million combined in those three states. With the deck stacked heavily against them, measures failed.
The good news is that people have other options when politics is broken. In communities across the U.S., people whose health and safety are threatened by fossil fuel infrastructure—not in the future, but now—are increasingly turning to nonviolent civil disobedience to make their voices heard. From Lafayette, Colorado, to Lafayette, Louisiana, these water protectors and climate warriors are demanding that companies stop forcing the costs of their activities onto them and their neighbors.
They’re also demanding that our legal system recognize who is and isn’t culpable. In more than 20 court cases since 2008, climate protesters have defended themselves against charges of trespass and related offenses by arguing that their civil disobedience is legally and morally justified. Drawing on science and history to make their case—as well as an argument used by protesters since the 1970s called the necessity defense–they’re asserting that climate change has spiraled so out of control, and the political process has become so unresponsive to ordinary Americans, that direct action–say, lying in pipeline trenches to block construction—is not a crime but is necessary to protect people and communities. From the Delta 5 to the Valve Turners, fossil fuel resisters are flipping the script.
Courts in most of these cases have tossed out protest defendants’ evidence before it could be presented to juries. Those decisions have often violated defendants’ legal rights, denied juries their function as fact-finders and voices of the community, and kept expert testimony on climate science, public health, and other subjects out of courtrooms.
But, in an unexpected development, prosecutors in several recent cases have reduced charges to lesser offenses or dropped them entirely. These cases include the 2017 federal prosecution of lawyer and Indigenous activist Chase Iron Eyes for his role in the Standing Rock protests in North Dakota; the 2018 case against the “Montrose Nine” pipeline protesters in New York; and the 2014 prosecution of the “Lobster Boat” protesters in Massachusetts, where the district attorney cited the dangers of climate change in dropping the case.
Some of these decisions have followed revelations of defendants’ plans to call expert witnesses—including James Hansen, a leading climate scientist and former head of NASA. At the landmark trial of the Minnesota “Valve Turners” last month, the prosecutor dropped so many charges beforehand that the case was dismissed for lack of evidence on the second day of trial (the defendants had initially faced felony charges and years in prison). In the case against the West Roxbury pipeline protesters in Massachusetts earlier this year, the charges were downgraded to civil infractions a week before trial, and a judge found the defendants not responsible by reason of necessity.
Let’s be clear: Dropped charges are mixed blessings for activists who want a jury to decide their fate. And some prosecutors’ decisions doubtless owe as much to cost-saving and inflated charging as to political calculation. Conservative lawmakers are mobilizing in response to the Valve Turners, and several bills to impose harsh criminal penalties on climate protesters are pending in state legislatures. Two such bills have been enacted, and many protesters have already faced surveillance.
But prosecutors’ decisions have allowed a notable number of protest defendants to walk free. People are standing in the way of fossil fuel companies, and–with the help of luck, determination, and often, white privilege—some of them are going unpunished.
Laws used to silence and intimidate protesters cannot protect the fossil fuel industry for long. Prosecutors’ ambivalence in these cases is an acknowledgment of the strength of protesters’ arguments—and, in some places, the lack of political will for prosecutions. Popular opposition to fossil fuel profiteering will only grow in an era of climate disaster, and the ballot box isn’t the only place where Americans can make themselves heard.
Which is a very, very good thing—for all of us.
Alice Cherry is a cofounder and staff attorney at Climate Defense Project, which helped represent the West Roxbury defendants and continues to represent the Valve Turners.