The Climate Change Defense
from The New York Times Magazine - December 12, 2008
Few would fault someone who kicks down the front door of a neighbor’s empty house to put out a fire. Neither would the law, generally: in Britain, the common-sense defense of “lawful excuse” (a variant is known as the “necessity defense” in the United States) usually succeeds in precisely this kind of situation. Which leads you to wonder: What acts might the law permit in the name of fighting a threat of global, even catastrophic, proportions?
In September, a British jury shook up the world of green politics when it accepted a lawful-excuse defense for property damaged with the intention of averting even greater damage from climate change. In an effort to draw public attention to government support for new coal-fired electricity projects, six Greenpeace activists painted Prime Minister Gordon Brown’s last name on a smokestack at the Kingsnorth power plant in Kent. The plant’s owner, the energy company E.ON, claimed that the paint cost more than $50,000 to remove.
With supporting testimony from the NASA climate-change expert James Hansen and a representative of the Inuit community of Greenland (who described watching villages “eroding into the sea”), the protesters convinced the jury that the threat posed by Kingsnorth carbon was not only real but also immediate enough to justify their high-profile graffiti. What’s more, they claimed, by halting the plant’s carbon-dioxide emissions for a day, they averted more than $1.5 million worth of damage to human health and wealth around the globe.
The decision has elicited strong reactions, including concern that it will be used to excuse a wide range of normally criminal acts. Some legal analysts doubt that other courts will follow suit. Though he hasn’t publicly commented on the verdict, former Vice President Al Gore, for one, seems intent on ensuring that its reasoning is tested again soon. In a recent public forum at the Clinton Global Initiative, he called on young people to engage in “civil disobedience to prevent the construction of new coal plants that do not have carbon capture and sequestration.”