Judge Allows Necessity Defense in Minnesota Pipeline Protest Prosecution

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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The “necessity” defense to a criminal charge is not often raised and is even less often successful. Judges rarely allow criminal defendants to argue that they were justified in violating the law in order to prevent a greater harm.

A judge in Minnesota is allowing four defendants who are charged with property crimes concerning oil pipelines to present a defense of necessity. The defendants temporarily interrupted the flow of oil from Canada into the United States. They contend that they acted to prevent global warming, which they view as a greater harm to humanity that the disruption of oil distribution.

Pipeline Protestors Charged

Two of the defendants, Emily Johnston (age 50) and Annette Klapstein (age 64), were arrested at the Endbrige Pipeline Distribution Center near Clearbrook, Minnesota. They were charged with criminal damage to property and trespass after they broke into a valve control station and turned the valve, shutting off the flow of oil.

Steven Liptay (age 37) filmed the protest as a documentarian. Benjamin Joldersma (age 39) was present to advise the protestors about safety precautions they should take. One such precaution included calling Endridge to warn the company of their plan to turn the valve. Liptay and Joldersma were charged with trespass.

Criminal damage to property and trespass are usually misdemeanors, but Minnesota law defines those crimes as felonies when they are committed with regard to critical public service facilities, utilities, or pipelines.

Defense of Necessity

The defense of necessity permits a defendant to avoid a criminal conviction by proving that the defendant’s conduct was justified. Other examples of justification defenses include self-defense and duress.

While the precise nature of the necessity defense depends on the state in which the defendant is charged, a defendant must typically present evidence of four facts before a judge will instruct the jury that necessity can be the basis for an acquittal. Those facts are:

  • The defendant reasonably believed that an actual and specific threat required immediate action
  • The defendant had no reasonable alternative but to commit the criminal act
  • The harm avoided by acting was greater than the harm caused by the crime
  • The defendant did not cause or contribute to the threat

The classic law school discussion of necessity, which divides legal scholars and philosophers, involves a group of four stranded cave explorers who are about to die of starvation. Three of the explorers kill the fourth and eat him so that they can survive. The theory is that the murder of one explorer is justified because it is the only alternative that will keep the other three alive. Can a murder be justified as necessary under those circumstances?

Hypothetical examples are usually used to discuss the necessity defense because, in the real world, it is unusual for a defendant to have evidence of all the required facts. In most cases when a defendant feels that a threat exists, there are alternative responses that do not require committing a crime, and the need for a response is not immediate. For those reasons, judges do not usually permit a necessity defense to be argued to the jury.

Climate Change and the Necessity of Protest

All of the pipeline protestors asked to present a necessity defense at trial. In Minnesota, a defendant who asserts the necessity defense must prove:

  • Obeying the law would have caused a significantly greater harm than the harm caused by disobeying
  • There was no legal alternative to breaking the law
  • The defendant was in danger of imminent physical harm
  • There was a direct causal relationship between breaking the law and preventing the harm

The protestors argued that they acted to “mitigate catastrophic climate change and its effects on public health and the natural environment.” Although a vocal group of climate change deniers continue to believe oil industry claims that human behavior has no impact on the climate, nearly every reputable client scientist agrees that human behavior is warming the planet.

In fact, the Trump Administration recently released its National Climate Assessment, a periodic report that is mandated by a 1990 law. Divorced from politics, the researchers who produced the report concluded that climate change is caused by human activity and that there is “no convincing alternative explanation” for the planet’s warming over the last century.

The dangers of global warming that are already evident include more powerful hurricanes and storms, increased rainfall in some areas that causes flooding, and intense heat waves, wildfires, and droughts in other areas. In the long term, rising sea levels will threaten hundreds of coastal communities in the United States within the next twenty years.

Whether the danger of global warming posed an imminent physical harm to the defendants, however, is debatable. The threat of future physical harm is real and predictable; whether that threat is “an emergency situation where the peril is instant,” as Minnesota law requires, is a question the jury will need to decide. Prosecutors argue that no defendant faced an imminent threat, while the protestors point to evidence that delaying a response to global warming brings the world closer to cataclysmic harm.

The Efficacy of Protest as a Last Resort

Whether shutting off the pipeline supply reduced any potential harm is also debatable. The defendants made the point that it is the act of protest, rather than turning the specific valve, that contributed to the social good. The defendants hope to prove that similar protests have made a difference in the past by increasing public awareness, leading to local efforts to reduce carbon emissions. They attribute efforts to reduce carbon emissions in Washington State to pipeline protests.

A final significant hurdle will be proof that shutting off the pipeline was the protestors’ only alternative. Prosecutors argue that they could have pursued a political solution. A necessity defense raised by climate protestors in Washington State failed because the judge ruled that they failed to establish the absence of legal avenues to effect change.

The Washington protestors took action in 2014. The Minnesota protestors may be able to argue that the pollical landscape has changed, given the president’s decision to withdraw from the Paris Climate Agreement, the continuing refusal of the GOP to acknowledge the reality of climate change, and the influence of the fossil fuel industry on public policy. Protestors could arguably campaign to elect different leaders, but given their concern that the threat of climate change is imminent and ongoing, attempting to produce legislative change through occasional elections might not be an effective response to the threat.

The Minnesota judge allowed the necessity defense to be raised, but cautioned that he plans to hold a tight rein on the evidence that the defendants will be allowed to present. The protestors have an uphill battle, and the judge might ultimately decide not to submit the necessity defense to the jury. From the protestors’ standpoint, however, being allowed to raise a necessity defense creates an opportunity to educate not just the jurors, but members of the public who read news coverage of the trial. That is presumably their ultimate goal, so being allowed to present the defense is an effective win regardless of the verdict.

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