SUBSCRIBE TO OUR FREE NEWSLETTER
Daily news & progressive opinion—funded by the people, not the corporations—delivered straight to your inbox.
5
#000000
#FFFFFF
");background-position:center;background-size:19px 19px;background-repeat:no-repeat;background-color:var(--button-bg-color);padding:0;width:var(--form-elem-height);height:var(--form-elem-height);font-size:0;}:is(.js-newsletter-wrapper, .newsletter_bar.newsletter-wrapper) .widget__body:has(.response:not(:empty)) :is(.widget__headline, .widget__subheadline, #mc_embed_signup .mc-field-group, #mc_embed_signup input[type="submit"]){display:none;}:is(.grey_newsblock .newsletter-wrapper, .newsletter-wrapper) #mce-responses:has(.response:not(:empty)){grid-row:1 / -1;grid-column:1 / -1;}.newsletter-wrapper .widget__body > .snark-line:has(.response:not(:empty)){grid-column:1 / -1;}:is(.grey_newsblock .newsletter-wrapper, .newsletter-wrapper) :is(.newsletter-campaign:has(.response:not(:empty)), .newsletter-and-social:has(.response:not(:empty))){width:100%;}.newsletter-wrapper .newsletter_bar_col{display:flex;flex-wrap:wrap;justify-content:center;align-items:center;gap:8px 20px;margin:0 auto;}.newsletter-wrapper .newsletter_bar_col .text-element{display:flex;color:var(--shares-color);margin:0 !important;font-weight:400 !important;font-size:16px !important;}.newsletter-wrapper .newsletter_bar_col .whitebar_social{display:flex;gap:12px;width:auto;}.newsletter-wrapper .newsletter_bar_col a{margin:0;background-color:#0000;padding:0;width:32px;height:32px;}.newsletter-wrapper .social_icon:after{display:none;}.newsletter-wrapper .widget article:before, .newsletter-wrapper .widget article:after{display:none;}#sFollow_Block_0_0_1_0_0_0_1{margin:0;}.donation_banner{position:relative;background:#000;}.donation_banner .posts-custom *, .donation_banner .posts-custom :after, .donation_banner .posts-custom :before{margin:0;}.donation_banner .posts-custom .widget{position:absolute;inset:0;}.donation_banner__wrapper{position:relative;z-index:2;pointer-events:none;}.donation_banner .donate_btn{position:relative;z-index:2;}#sSHARED_-_Support_Block_0_0_7_0_0_3_1_0{color:#fff;}#sSHARED_-_Support_Block_0_0_7_0_0_3_1_1{font-weight:normal;}.grey_newsblock .newsletter-wrapper, .newsletter-wrapper, .newsletter-wrapper.sidebar{background:linear-gradient(91deg, #005dc7 28%, #1d63b2 65%, #0353ae 85%);}
To donate by check, phone, or other method, see our More Ways to Give page.
Daily news & progressive opinion—funded by the people, not the corporations—delivered straight to your inbox.
A climate activist who chained herself to a Shell vessel last year to protest oil drilling in the Arctic argued this week that she was compelled to act to prevent environmental catastrophe.
Chiara D'Angelo, 21, climbed the vessel's anchor chain with a sign that read, "Save the Arctic," and locked her harness to the side of the ship for three days and nights in May 2015 in Bellingham, Washington. She now faces a possible $20,000 fine for crossing the so-called "safety zone" around the ship.
But in a hearing with the Coast Guard on Monday, D'Angelo and her attorney invoked what's known as the "necessity defense," arguing that her actions were far less dangerous than the risks posed by allowing the ship to depart for the Arctic's Chukchi Sea, where the oil giant was poised to undertake "one of the riskiest offshore drilling operations of all time," as D'Angelo told the Bellingham Herald.
Shell had planned to explore for oil in the remote and vulnerable northern waters despite warnings from the Bureau of Ocean Energy Management that the operation posed a 75 percent chance of a spill, risking the food supply for native Alaskans, who rely on fishing and marine hunting for subsistence.
D'Angelo, supported while on the chain by fellow activists who took turns keeping her company and delivering food and other supplies, told the Herald, "I acted to prevent harm."
"There was a 75 percent chance of a major oil spill in Inupiat harvesting territory," she said. "If you have this disaster there, take out their food source."
Shell's Arctic plans also catalyzed large-scale protests by land, air, and sea last year. The energy giant called off its Arctic crusade "for the foreseeable future" in September 2015, stating that there were not enough indications of oil and gas in the region to justify continued drilling.
Five climate activists charged with blocking an oil train in January used the necessity defense in a groundbreaking case. This marked the first time a U.S. judge allowed the argument in a climate trial.
The defendants were eventually found not guilty of obstruction, avoiding jail time. During the proceedings, jury members clarified that they understood that the activists were trying to raise public awareness about critical issues.
One juror reportedly told them, "Thanks for the education."
One in six Americans say they would personally engage in nonviolent civil disobedience against corporate or government activities that make global warming worse. That's about 40 million adults. The fate of the earth may depend on them -- and others around the world -- doing so.
Such actions are about to take a quantum leap in numbers and global coordination. From May 4-15, 350.org, Greenpeace and many other organizations -- notably grassroots movement organizations from every continent -- will hold a global week of action called Break Free From Fossil Fuels. They envision tens of thousands of people mobilizing worldwide to demand a rapid transition to renewable energy. Events will include nonviolent direct actions targeting extraction sites or infrastructure, pressure on political targets to shift policies around fossil fuel development, and support for clean energy alternatives. Mass actions in Australia, Brazil, Canada, Germany, Indonesia, Israel/Palestine, Nigeria, the Philippines, South Africa, Spain, Turkey, and the United States will target fossil fuel projects and support ambitious solutions. Before and during the week of action, additional, locally-initiated actions are expected in many other locations around the globe.
In the United States there will be actions in California, the Northwest, the Mountain West, the Midwest, Washington, D.C., and the Northeast. They will include support for a moratorium on the auction of public land for fossil fuel development, mass trespass at fracking sites, land and flotilla blockades of refineries, actions at the facilities of pipeline companies, and blockades of trains carrying fracked oil. In each case the partners include not only national and international environmental organizations but dozens of community, indigenous, climate justice, labor, religious, citizen action and other groups that have long been campaigning locally against these targets.
Flipping the script
Break Free From Fossil Fuels participants will define themselves to the movement, the public and the courts not as criminals but as law-enforcers trying to enforce legal rights and halt governments and corporations from committing the greatest crime in human history.
Fundamental principles embodied in the laws and constitutions of countries around the world provide a strong basis for these claims. Basic human and constitutional rights include the unalienable rights to life, liberty and property -- including the property that belongs not just to us but to future generations of humanity. And pursuant to the public trust doctrine governments are the trustees of the vital natural resources on which human well-being depends; they have a "fiduciary duty" to manage them for the benefit of all present and future generations. Governments have no right to authorize the destruction of those resources today to the detriment of future generations and constitutional rights to life, liberty and property. These legal rights will help provide the frame for the public messaging and legal strategy of climate-protecting civil disobedience surrounding Break Free From Fossil Fuels.
Use of constitutional law and the public trust doctrine for climate protection has been pioneered by young people, supported by Our Children's Trust, who have brought lawsuits and/or rulemaking petitions in every U.S. state and against the federal government, as well as in several other countries around the world. Their aim is to require governments to act on their public trust duty to protect the climate, as well as the fundamental constitutional rights of present and future generations.
"The Federal government has been making decisions in the best interest of multinational corporations and their profits, but not in the best interest of my generation and those to come," said Earth Guardians youth director Xiuhtezcatl Martinez, one of the lead youth plaintiffs in the landmark federal climate lawsuit now pending in the U.S. District Court for the District of Oregon. "Instead of changing their business model to meet the scientific reality of climate change, these companies are demanding we adapt to an uninhabitable world that supports their profits. When you compare the two, I think it's clear that our right to clean air and a healthy atmosphere is more important than their 'need' to make money off destroying our future."
In an astonishing turn of events last November, the American Fuel & Petrochemical Manufacturers, the American Petroleum Institute, and the National Association of Manufacturers -- representing nearly the entire fossil fuel industry -- filed a motion to "intervene" and join forces with the government against the youth in the Federal Constitutional and Public Trust lawsuit of Our Children's Trust. They argued that, "If plaintiffs succeed in this court ordering the elimination or massive reduction of U.S. conventional fuel consumption and manufacturing processes that emit greenhouse gases beyond existing federal and other regulations, the members of each of the proposed intervener-defendants will be harmed."
According to Our Children's Trust executive director and lead attorney for the youth Julia Olson, "The fossil fuel industry would not want to be in court unless it understood the significance of our case. This litigation is a momentous threat to fossil fuel companies. They are determined to join the federal government to defeat the constitutional claims asserted by these youth plaintiffs. The fossil fuel industry and the federal government lining up against 21 young citizens -- that shows you what is at stake here."
On January 15, Magistrate Judge Thomas Coffin of the Federal District Court in Oregon accepted the fossil fuel and manufacturing industries' move to intervene to oppose the lawsuit.
Claims that government actions are illegal and unconstitutional have played an important role in empowering social movements throughout history. They strengthen participants by lending a sense of clarity that they are not promoting personal opinions by criminal means, but rather performing a public duty. And they strengthen a movement's appeal to the broader society by presenting action not as wanton law-breaking, but as an effort to rectify actions of governments and institutions that are themselves in violation of the law.
For the civil rights movement, the U.S. Constitution's guarantee of equal rights meant that those engaged in sit-ins and freedom rides were not criminals, but rather upholders of constitutional law -- even if Southern sheriffs threw them in jail. For the activists of Solidarity, the nonviolent revolution that overthrew Communism in Poland was not criminal sedition, but an effort to implement the international human and labor rights laws ratified by their own government.
Constitutional and public trust arguments make it possible for the climate protection movement to turn the tables on the governments that purport to represent the world's people and to have the authority to rule the world. They stand for the proposition that governments do not have the right to destroy the climate -- and that the people have the right to stop them when they do so. Governments have no more right to authorize the emission of greenhouse gases that destroy the climate than the trust officers of a bank have to loot the monetary assets placed under their care. The people of the world have a right to our common natural resources. And we have a right, if necessary, to protect our common assets against those who would destroy them.
The constitutional duty of governments to protect the public trust, and the right of the people to life, liberty and property, can play much the same role in the climate movement that the U.S. Constitution's right to equality played for the civil rights movement and the Polish government's legal commitment to human and labor rights played for Solidarity. Those who perpetrate climate change, and those who allow them to do so, should not be able to claim that the law is on their side. Those who blockade coal-fired power plants or sit down at the White House to protest fossil fuel pipelines can -- and should -- insist that they are simply exercising their fundamental constitutional rights to life, liberty and property, as well as their responsibility to protect the atmospheric commons they own along with all of present and future humankind. Climate protesters can proudly proclaim that they are actually protecting constitutional public trust rights for all, upholding the law, not violating it.
It has begun
When protesters block fuel trains or occupy government buildings, normally the police are called in, and the protesters are arrested and tried as law breakers. But a trickle of recent climate cases has begun to erode the expectation that the law supports the right of property owners to use their property to destroy the climate.
On Earth Day 2013, Alec Johnson (a.k.a. "Climate Hawk") locked himself to a construction excavator in Tushka, Oklahoma, as part of the Great Plains Tar Sands Resistance campaign to stop the Keystone XL pipeline. Johnson explicitly based his defense on the public trust doctrine: "When it comes to our commons, to our public property, we the people have rights in a public trust." The public trust doctrine, he continued, "assures us that we have rights when it comes to how our public commons are administered by any trustees placed in charge of it." We the people are "armed" by such legal doctrine. We now "demand our environmental institutions and agencies recognize their responsibilities as trustees and exercise their fiduciary responsibility to act with 'the highest duty of care,' to ensure the sustained resource abundance necessary for society's endurance."
In a statement he prepared for the jury, Alec Johnson argued that his blockade of Keystone XL pipeline construction was necessary because the pipeline threatens our atmospheric public trust, and state and national governments are failing to protect us against that threat. He proclaimed on the basis of the public trust principle, "I wasn't breaking the law that day -- I was enforcing it." Although Johnson could have been sentenced to up to two years in the Atoka County jail, he received no jail time and a fine of just over $1,000.
In 2013, Jay O'Hara and Ken Ward used a small fishing boat named Henry David T to block a ship from unloading 40,000 tons of coal at the Brayton Point, Massachusetts power plant. Prosecutors charged them with disturbing the peace, conspiracy, failure to act to avoid a collision, and negligent operation of a motor vehicle. O'Hara and Ward argued that the imminent threat of global climate change left them no choice but to act as they did. The day the trial was set to begin, the Bristol County District Attorney went out to the steps of the courthouse and announced that he was reducing the charge to a modest fine, which would help defray municipal costs. Then he issued a statement in support of O'Hara and Ward's protest: "Climate change is one of the gravest crises our planet has ever faced. In my humble opinion the political leadership on this issue has been gravely lacking." He thereupon met with the defendants and told them he would join them at the upcoming People's Climate March.
Rising Tide Seattle activists have blockaded an oil train in Everett. (Facebook / Rising Tide Seattle)
On September 2, 2014, five activists blockaded a train used to ship Bakken oil in a BNSF Delta rail yard in Everett, Washington. They included a business climate consultant, a teacher's assistant, a coffee house owner, a retired music teacher, and the owner of a small carpentry and painting business. In their court filings, the "Delta 5" argued that "to seriously address the climate crisis, we need to be shutting down our fossil fuel infrastructure and keeping that oil in the ground." On that basis they maintained that their blockade was "morally -- and legally -- justifiable given the imperatives of the climate crisis." The risks of global warming are an emergency, and require urgent, rapid reductions of atmospheric CO2 emissions if we are to maintain a sustainable climate. The blockaders asked that their actions be viewed, "not as a crime, but a as reasonable act of conscience, necessitated by the extreme nature of the emergency and by the fact that the government itself is in violation of the law." Abby Brockway, a housepainter and Presbyterian elder, presented an additional defense based on the threat the oil trains presented to railroad workers and the communities they went through.
Initially the judge refused to admit a necessity defense. But shortly before the trial he reversed himself. As a result, for the first time in U.S. history a judge allowed a jury to hear testimony that climate protesters should not be found guilty of breaking the law because their actions were necessary to prevent a far greater harm - destruction of the Earth's climate.
After testimony was completed, however, the judge instructed the jury not to consider the necessity defense, primarily on the grounds that they had not shown that all legal avenues had been exhausted. But the jury had already heard why the Delta 5 did what they did - and the expert testimony on the threat presented by climate change and oil trains. The jury acquitted them on the major charge of obstructing a train and found them guilty only of trespass. At the end of the trial three of the jurors met with the defendants in the hallway, hugged them and agreed to join them for an upcoming climate lobby day. Were it not for the judge's firm instructions, they said they would have voted to acquit. The Delta 5 are appealing the decision.
A kind of "municipal climate disobedience" is also emerging. In Deerfield, Massachusetts, this February, the Texas-based Kinder Morgan company asked the Massachusetts Department of Public Utilities, or DPU, to force the more than 400 property owners along the route of its proposed Kinder Morgan natural gas pipeline to allow company surveyors on their land. In reply, the town of Deerfield wrote the DPU that its Board of Health has forbidden all activities of Kinder Morgan in the town. The health board had said that "a corporation convicted of felonies resulting in the tragic deaths of five people presents an unreasonable risk to the health and lives of residents of Deerfield if such [a] felon were to be allowed to build a massive fracked gas pipeline through the town."
The Select Board of the town warned that anyone entering onto private properties without permission from the property owners for activities related to the proposed natural gas pipeline will be arrested for trespassing - even if they have an order from the DPU. A lawyer representing the town said Deerfield is "prepared to supersede any state authority and have police officers arrest anyone who enters onto private property as part of the pipeline project." Kinder Morgan claims the federal Pipeline Safety Act preempts any state's authority to regulate pipeline safety and that certain state laws trump the town's orders.
While nobody should commit civil disobedience in the expectation that they will be acquitted on constitutional or public trust grounds, these cases show that we can expect a growing proportion of our neighbors and fellow citizens - including some who serve as judges and juries - to recognize that climate change must be halted by all means necessary and that our actions hasten that result.
A climate insurgency?
Break Free From Fossil Fuels may be the harbinger for a global nonviolent climate insurgency. It is globally coordinated, with common principles, strategy, planning and messaging. It is utilizing nonviolent direct action not only as an individual moral witness, but also to express and mobilize the power of the people on which all government ultimately depends. It presents climate protection not only as a moral but as a legal right and duty, necessary to protect the Constitution and the public trust for ourselves and our posterity. It represents an insurgency because it denies the right of the existing powers and principalities - be they corporate or governmental - to use the authority of law to justify their destruction of the earth's climate.
On October 23, Alec Johnson, a.k.a. "Climate Hawk," is scheduled to go on trial for having locked himself to a construction excavator in Tushka, Okla., on Earth Day 2013, as part of the Tar Sands Blockade campaign to stop the Keystone XL pipeline. He intends to argue that resisting the pipeline was necessary in order to protect the public trust -- the common property right of the people to essential natural resources. Johnson will be the first defendant anywhere to make a necessity defense based on the duty of government to protect the climate under the public trust doctrine.
Johnson explained his stand in a speech delivered in Nacogdoches, Texas, last month, on the day of the People's Climate March, saying, "When it comes to our commons, to our public property, we the people have rights in a public trust." The public trust doctrine "assures us that we have rights when it comes to how our public commons are administered by any trustees placed in charge of it." We the people are "armed" by such legal doctrine. We now "demand our environmental institutions and agencies recognize their responsibilities as trustees and exercise their fiduciary responsibility to act with 'the highest duty of care,' to ensure the sustained resource abundance necessary for society's endurance."
The Keystone XL pipeline itself, Johnson continued, is "proof that our trustees have failed in their fiduciary duty to 'We the People.'" The presence of any portion of this pipeline in the ground "incontestably proves that the states of Oklahoma and Texas have failed." And the U.S. government has failed to discharge "the highest duty of care" on behalf of this and future generations.
Johnson describes himself as "a father and a recovering economist." Becoming a father over 33 years ago "proved to be a profound transformation, revealing how a river of time connects us all to our ancestors and, as parents, to all our descendants." In its rolling flow, this river "whispers over and over again our eternal obligation shared with all our ancestors: to protect the descendants, to look out for our children." It is "a sacred obligation."
Nowhere is this more apparent than when it comes to the "commons" of our only atmosphere. This obligation, Johnson said, "does not permit robbing resources from our children's future." And yet we are "drawing down resources, as much their birthright as ours, headlong consuming them with scant consideration for the devastation this will visit on our children."
Johnson first ran into the idea of using the public trust doctrine for climate protection in one of my articles for Waging Nonviolence and followed up by reading "Nature's Trust," the magisterial study of public trust doctrine by University of Oregon legal scholar Mary Christina Wood. He cites her statement that the public's lasting ownership interest in the public trust "vests in both present and future generations as legal beneficiaries." Public trust law demands that government "act as a trustee in controlling and managing crucial natural assets." Held to strict fiduciary obligation, government must "promote the interests of the citizen beneficiaries."
Johnson described the public trust as the "central assertion" and "moral foundation" of his defense. "I'm hoping," he explained, "that citizenship and a rousing interest in the public trust doctrine will allow the jury and me to meet on the 'open road' Walt Whitman speaks of in his 'Song of the Open Road.'" Together, they might discover, as Whitman wrote, that:
Here a great personal deed has room;
A great deed seizes upon the hearts of the whole race of men,
Its effusion of strength and will overwhelms law, and mocks all authority and all argument against it.
In a web appeal for support, Johnson wrote, "I won't plead guilty for taking direct action against extreme energy madness. Enforcing our children's rights to climate justice is no crime." He also asked supporters to join him for a rally in front of the Atoka County Courthouse in Atoka, Okla., on October 22, and to attend the trial the following day.
"We mean to pack the place and send a loud message demanding climate justice now!"
Alec Johnson Speaking About His Protest and Upcoming TrialA short except of remarks delivered by Alec "Climate Hawk" Johnson in Nacogdoches, Texas on September 21, 2014 as part of ...