UPDATE: In a late series of events that surprised all observers on this case, state prosecutors on Monday reached a settlement with Ken Ward and Jay O’Hara, including dropping all criminal charges.
The government dumped the only felony charge in the case, the men’s lead attorney says, while the three misdemeanors will now be dealt with as civil rather than criminal offenses. In addition, the state is requiring payment of neither fines nor penalties, though each defendant has agreed to pay $2,000 in restitution to the local police department to cover costs incurred.
Following the hearing, the county’s lead prosecutor explained that the decision to drop the charges was made with “the children of Bristol County and beyond in mind.”
“Climate change is one of the gravest crises our planet has ever faced,” C. Samuel Sutter, the district attorney, told the media on Monday afternoon.
“In my humble opinion, the political leadership on this issue has been sorely lacking … I am also extremely pleased that we were able to reach an agreement that symbolizes our commitment at the Bristol County District Attorney’s Office to take a leadership role on this issue.”
At the press conference, Sutter waved a copy of a Bill McKibben article and told those gathered that he was planning on marching in a major climate-focused demonstration in New York City later this month.
Matt Pawa, the lead defense attorney, told MintPress that the press conference was “one of the most extraordinary things I’ve ever seen,” and noted that Ward and O’Hara see the settlement as a “major victory.”
“Would we have liked to have put on a case of necessity to show the world the evidence about what’s happening to the climate? Sure,” he said. “But is this the best result? Yes.”
WASHINGTON — A U.S. court will, for the first time, allow defendants to claim that U.S. energy policies and the worsening threat of global climate change required them to engage in a day-long act of civil disobedience last year.
The case involves an incident that took place in May 2013, off the coast of Massachusetts. Two men, Jay O’Hara and Ken Ward, used a small lobster boat and an enormous anchor to stop a ship, reportedly laden down with 40,000 tons of Appalachian coal, from entering a power plant at Brayton Point, in Somerset, one of the largest coal-burners in New England. The two halted their blockade at the end of the day.
O’Hara and Ward were subsequently arrested and charged on four counts, including conspiracy and disturbing the peace. The men, who live in the area, do not dispute their actions or their illegality. But in their trial, which begins Monday, they will ask the court to drop the charges, given the danger that the burning of coal poses to what they consider to be the imminent threat of climate change.
“We are going to be arguing that it was absolutely necessary for public well-being and public safety to shut this plant down and to stop that coal,” O’Hara said in a briefvideo posted on Aug. 25. (The defense’s legal team declined to comment for this story.)
Climate scientists say “we need to stop burning coal globally … in the next 15 years,” O’Hara continued. “And if we have any hope of helping developing countries and urging countries who are really dependent on coal … to transition away from coal by 2030 and to keep that coal in the ground, we have to start doing it now.”
In the same video, Ward noted that their blockade did not constitute civil disobedience but rather was a direct action.
“Meaning, we’re actually trying to stop the harm. We’re not trying to make a statement — we were trying to shut down Brayton Point,” he said.
“The odds of us doing it that day were low … But we did think it was reasonable that we might help spark a broader political movement that would focus on shutting down Brayton Point. And that, in fact, happened.”
No legal alternatives
This so-called “necessity” defense has a long history in both U.S. and older British law. It is typically used to excuse acts that, while technically illegal, were undertaken in the midst of an emergency or crisis — someone stealing food from a deserted cabin while she is lost in the woods, for instance, or prisoners fleeing a burning prison.
The necessity defense has also been used by U.S. activists, particularly around actions to protest Apartheid South Africa and other instances seen as moral transgressions. Yet, while climate campaigners have tried to use such a defense around climate issues in the past, judges have never allowed it. (In the United Kingdom, climate activists were acquitted using such a defense in 2008.)
The trial of O’Hara and Ward, then, has already set something of a precedent in this country by being allowed to proceed using this approach. In so doing, their legal team will now be allowed to call witnesses and to lay out a full, public case around what they see as both the threat of climate change and the government’s inadequate response to that threat.
Both of these considerations are important, given the legal framework that allows for a necessity defense to go forward. In order to be deemed legally legitimate, such an action needs to have been carried out in response to imminent harm and with a reasonable expectation of avoiding some of that harm. Importantly, it also needs to have been done on the understanding that there was a lack of legal alternatives by which to achieve the same result.
“I will try and explain to the jury that we’ve tried everything we can to spread the warning from scientists — from testifying to Congress, to writing books, to marching en masse,” Bill McKibben, a prominent climate activist who is scheduled to give testimony in the blockade case, told MintPress News. “But change isn’t coming fast enough because of the power of the fossil fuel industry, so standing up more firmly is, literally, a necessity.”
Many environmental advocates trace a lineage between the blockade undertaken by O’Hara and Ward last year and a 2008 action carried out by Tim DeChristopher, a Utah activist. Faced with a controversial auction of public lands in that state for oil and gas production, DeChristopher registered to participate in the sale and ended up indicating that he would purchase a large number of the auctioned blocs.
When it was revealed that DeChristopher had no intention of paying for the blocs, the auction was called off — and later deemed invalid. The federal government charged DeChristopher and, in 2011, he was convicted on two counts.
At that trial, too, DeChristopher’s lawyers tried to offer a “necessity” defense based on the dangerous impact of burning fossil fuels on the changing climate. The judge rejected the strategy, ordering DeChristopher to talk only about the day of the auction while leaving aside any broader context. According to DeChristopher, the judge thought the climate discussion would “confuse” the jury.
“It’s so exciting that [O’Hara and Ward] now get the opportunity to present this case, to lay it all out in front of a jury so they can make a fully formed decision,” DeChristopher, who was released from prison in 2013 and is now a student at Harvard Divinity School, told MintPress.
“The case for the necessity defense in the climate context becomes stronger every year — as the impact of climate change becomes clearer, as the government continues to fail to act, and as the degree to which the democratic channels of creating change become more and more corrupted.”
Ripple effects
Of course, the necessity defense balances in great part on judgment calls. In the coming trial, the jury will need to decide on both the true threat of climate change and the extent to which government action is or is not adequately addressing climate change. While many increasingly see the former as relatively objective, the latter is inevitably far more subject to interpretation.
For his part, DeChristopher dismisses the actions that the Obama administration has taken to try to work around the polarized U.S. Congress on climate-related issues. This includes the landmark proposal by the Environmental Protection Agency to require the states to bring emissions from currently operating power plants within certain limits.
“The EPA regulations are far below the level of what would be considered adequate. They are a very slight deviation from the status quo, and it’s pretty evident from all of our best studies that we need much more significant departure from the status quo,” he said.
“If the government was passing a strong and revenue-neutral carbon tax and approaching the U.N. climate negotiations with a really strong plan to drastically cut emissions and shift our energy production and economic priorities, they could make a case that they were taking this threat seriously.”
With little of that on the horizon, however, DeChristopher and others are looking for ways for “citizens to make clear how out of line Congress is with the rest of the country.”
Starting Monday, a courtroom in Massachusetts will, for one of the first times, hear the full argument. Whatever the ultimate verdict, many are already suggesting that the trial will inject new energy into the climate discussion in the United States.
“You never know the ripple effects trials like this will create,” Jamie Henn, communications director at 350.org, an advocacy group created by Bill McKibben, told MintPress.
“Tim DeChristopher’s civil disobedience, and the following trial, helped build energy for the first Keystone XL sit-ins at the White House in 2011. That fight has clearly had a profound effect on our national energy debate. I’d expect this trial to create similar waves.”