Necessity Defense

The necessity defense is legal defense strategy that argues that an action was justified because the technical breach of the law was outweighed by the moral imperative for civil disobedience. It has often been used by climate activists to justify and draw attention to protest actions taken in defense of the climate.

The requirements of a necessity defense vary by jurisdiction but usually require showing that the defendant:

1. Faced imminent danger
2. Took action to prevent that danger through less harmful means
3. Reasonably anticipated that the action would prevent the danger
4. Had no reasonable legal alternative to the action

In addition to serving as a legal defense, the necessity defense also allows activists an opportunity to draw attention to their cause. The necessity defense shifts the focus of a trial from the actions of a protestor, to the climate impacts of a government or fossil fuel company. By doing this, the necessity defense allows for a trial of the government or fossil fuel company in the "court of public opinion." The necessity defense also draws attention to the extreme urgency of the situation, by arguing that civil disobedient actions are not only needed and to address the threat of climate, but are morally justified because of the grave danger posed by the status quo.

Resources

These are a guides for Activists and Attorneys about the climate necessity defense:

• Climate Necessity Defense Case Guide: A Guide for Activists and Attorneys (Climate Defense Project, 2019)
• The Climate Necessity Defense (Climate Disobedience Center)
• Civil Liberties Defense Center represents activists that, in the course of fighting for a better world, are arrested and criminally charged. They have used the necessity defense to defend climate activists in court.

Organizations supporting activists:

• Climate Activist Defenders
• Climate Defense Project
• Environmental Defenders Collaborative
• Global Climate Legal Defense Network (CliDef)

Also see:

• The Climate Necessity Defense: Proof and Judicial Error in Climate Protest Cases (Lance N. Long & Ted Hamilton, 2019)
• A few thoughts on the necessity defense. TIM DECHRISTOPHER, OCTOBER 14, 2019.
• Necessity Defense Webcast. TIM DECHRISTOPHER & stand.earth, JULY 10, 2018.
• In defense of (climate) necessity. HANNAH CHODOSH, APRIL 30, 2018.
• The Climate Made Me Do It. The necessity defense is the holy grail of climate action. HEATHER SMITH, Sierra Club Magazine. MAR 29 2018.
• Judge rules civil disobedience a ‘necessity’ to prevent climate change Think Progress, 28 March 2018
• Judge Allows Vital 'Necessity Defense' for Climate Activists. Common Dreams, Oct. 18, 2017.
• In Groundbreaking Ruling, Minnesota Judge Allows Climate Necessity Defense In Upcoming "Valve-turner" Trial. Press Release October 16, 2017, Valve Turners.
• Do Climate Activists Have a Legal Justification for Civil Disobedience? Ted Hamilton & Bill Quigley, May 5, 2017, Counterpunch.

Cases

• Kingsnorth Six trial First time the necessity defense was recognized by a judge for environmental activists in the UK.
• Delahalle and Goinvic (France) Necessity defense recognized in France for climate change.
• Trial of Angela Ditchfield. Extinction rebellion protestor used necessity defense successfully in the UK.
• Trans Mountain Pipeline ULC v. Misavair
• Commonwealth of Massachusetts v. Ward. Two men invoked the necessity defense after using a lobster boat to block a coal barge.
• Credit Suisse Protesters Trial. A group of protestors invoked the necessity defense after occupying a Credit Suisse branch in protest of the bank's investment in fossil fuels.
• Decision by the district court of Flensburg on 07.11.22. First successful necessity defense claim in Germany concerning civil disobedience to protect the climate.