For almost a year now, hundreds of Massachusetts locals have fought to thwart the construction of a high-pressure fracked gas pipeline, set to run through five miles of West Roxbury, a Boston neighborhood. The protests got increasingly heated, with people sitting in and refusing to vacate holes that were dug for the pipeline, eventually culminating in some 200 arrests. Many of them faced criminal charges for trespassing and disturbing the peace.
This Tuesday, however, the final 13 protesters facing charges were found not responsible by a Massachusetts judge; the potential environmental and public health impacts of the pipeline - including its potential role in deepening climate change - made the public's disobedience legally necessary, he ruled.
Legally illegal
Although environment and climate activists have been using the necessity defense more and more in recent years to tackle fossil fuel infrastructure development, this is the first case where a judge ruled defendants not responsible on the basis of this defense, according to the Climate Disobedience Center.
"We believe this is a first," Marla Marcum, director of the Climate Disobedience Center, told ThinkProgress. "It's pretty powerful, to us, that a judge listened very carefully and determined, essentially, that it was necessary for these people to take this action in an attempt to prevent a greater harm."
The necessity defense is a legal construct through which people can argue that a crime was justified in order to prevent greater harm. However, in the context of climate change action, it's a tool that has found limited use; one of the tenets of the necessity defense is to prove that the threat was imminent, and could not be avoided through legal means, thus warranting the use of non-legal means. The West Roxbury protesters argued that the pipeline constituted a local environmental risk, a catalyst for climate change, and that their elected officials didn't succeed in having the project blocked or rerouted.
Perhaps feeling an unfavorable tide, prosecutors downgraded the charges from criminal to civil during the lawsuit, which prevented the protesters from mounting a full defense in front of a jury. The judge, however, allowed each defendant two minutes to explain their actions against the project, and decided to find them not responsible - the civil equivalent of ‘not guilty' - on the basis of necessity.
While it didn't prevent the pipeline going operational, the company behind it, Spectra Energy, was forced to admit on the record that it didn't have a safety plan in place in the event of a catastrophic failure. It goes to show, however, that while we may feel powerless in the face of huge, daunting issues such as climate change, and even when officials seem uninterested or unable to heed our woes, there are still mechanisms in place for people to express their will. The legal system can make a huge difference in deciding what is right and giving those concerned about the environment a voice.
"I think it's important to continue putting in the laps of people like judges, prosecutors, and juries, the opportunity to make a decision about what is right in this moment," Marcum siad. "People who occupy those roles care deeply and are worried about climate and the future for their children and grandchildren, and occasionally show a feeling of relief or gratitude that some group has brought into their sphere of power the ability to really hear and evaluate based on all of the evidence."
For now, the West Roxbury decision doesn't set any legally binding precedent, but it definitely sets an example for people trying to get courts to take their concerns into account. With a federal government that seems increasingly pandering to business interests, and more inclined to crack down on justified protests with legal consequences, judges will likely face more such cases in the future.
And their decisions, for better or worse, will shape the world for tens of generations to come.
