How 2 Guys, a Lobster Boat and a District Attorney Just Made Climate History

By Ari Phillips, ThinkProgress

11 September 14

n Monday, outside of the Fall River Justice Center near the border of Rhode Island, Bristol County District Attorney Sam Sutter addressed a gaggle of eager reporters gathered for what they thought would be a multi-day hearing for two men who blocked a 40,000-ton shipment of coal from reaching New England’s largest power station last May. However, Sutter shocked everyone by dropping the charges in under an hour, leaving the group anxious to understand what led to his decision to reduce the conspiracy, disturbing the peace, and two other civil disobedience charges against the climate activists. Having anchored a lobster boat in the freighter’s shipping channel, the climate activists delayed the delivery of coal for a day in an effort to delay the impacts of climate change by raising awareness. Facing up to nine months in jail, they were suddenly off the hook.

“Climate change is one of the gravest crises our planet has ever faced,” Sutter said after explaining that the decision was made with the interests of the people of Bristol County in mind. “In my humble opinion, the political leadership on this issue has been gravely lacking.”

The defendants, Jay O’Hara, 32, and Ken Ward, 57, who accepted all charges for blocking the tons of Appalachian coal that the “Energy Enterprise” was bringing to port, had submitted an uncommon and unused defense for their actions: the necessity defense. They argued that they had no choice but to act because the consequences of climate change are so dire. It just so happened that Sutter agreed with them.

“As in all instances, I first had to consider the people of Bristol county,” Sutter told ThinkProgress on Tuesday. “In addition to that, I had to give strong consideration to the cause that led to the act of civil disobedience. And I agree that climate change is one of the greatest crisis the planet has ever faced and that we have to act more boldly now.”

Sutter had emerged from the justice center with a copy of a recent essay by climate author and activist Bill McKibben in hand. He said he found McKibben to be inspirational and that he believes “sand is moving through the hourglass” when it comes to climate change. Having come of age in the 1960s, Sutter said he is “acutely aware” of the acts of civil disobedience that took place in the fights against racial injustice, the Vietnam War, and South African apartheid, and that he placed the actions of Ward and O’Hara in that long and storied history.

Had Sutter allowed the prosecution to continue, McKibben was prepared to testify along with three other witnesses, including NASA climatologist Dr. James Hansen, to support the argument of necessity defense. Sutter said he wasn’t sure if the lawyers would have been able to meet the burden of proof in front of the judge, which includes meeting four legal standards in what amounts to an emergency situation requiring necessity defense.

“I was concerned that they were going to great lengths of preparation and costs and would be thwarted by the judge saying no, you cant present defense,” he said. “Fortunately we were able to come up with a negotiated decision.”

The agreement calls for the defendants to pay $2,000 each in restitution to the state for police overtime, which Sutter says he considers to be an outcome that “demonstrated the leadership he’d like his office to take while meeting the interests of tax payers.”

Matthew Pawa, the attorney representing Ward and O’hara, told ThinkProgress that while Sutter’s decision and subsequent comments were “utterly unbelievable” and “jaw dropping,” he is confident that legal help is out there for future cases and that he wants “to bring evidence into the courtroom.”

“I hope that if people go out and protest that they realize they do have legal rights and a long history of civil disobedience in this country,” said Pawa. “And there are lawyers out there like me ready, willing, and able to defend them. The climate catastrophe is getting worse and worse — legal help is out there.”

Pawa said that the necessity defense argument required the defendants to show that they were facing clear and imminent danger, that they reasonably expected their actions would be effective, and that there was no legal alternative in abating the danger.

“We were going to say that the only way to solve climate change is to stop burning coal as soon as possible and that 40,000 tons of coal matters,” said Pawa. “Despite all the work being done, there’s no treaty, no federal legislation, and no law to keep carbon dioxide to 350 ppm.”

Pawa said they were also prepared to explain the process of global warming to the jury and to “bring it home” with examples of how increased storms and flooding damage public safety in the Northeastern U.S.

When Ward and O’Hara set off into the cold waters of the bay near Brayton Point, Massachusetts last May, they had little idea of how the action would play out. They felt the need to do something and the largest source of coal emissions in the Northeast seemed like an obvious target. Their intention was to make a statement, and not necessarily to break the law.

“Both of us were pretty certain going into this that we were not comfortable doing something where we knew we hazarded the risk of breaking the law,” Ward told ThinkProgress. “We tried to carefully create a protest moment. But obviously we did do the things we were charged with.”

The official charges included disturbing the peace, conspiracy, failure to act to avoid a collision, and negligent operation of a motor vessel.

Ward said he’s been doing environmental and climate work for a long time, and had been thinking he needed to start doing things that step outside of the norm. He had never been arrested or charged with anything before.

“Hopefully it will encourage people,” he said. “I’m quite critical of companies and leaders of groups; they get so mired in politics as usual. If the DA in a Massachusetts county can come out and say these kinds of things, our own leaders ought to be able to, as well.”

He called Obama and the EPA’s proposed carbon reduction plan for existing coal-fired power plants “terrible” and on their website, http://lobsterboatblockade.org, Ward and O’Hara have a “Coal is Stupid” manifesto that calls for the Brayton Point Power Plant to be shut down immediately.

Ward said he is working on launching a climate disobedience center with Tim DeChristopher, an environmental activist who raised $10,000 for the pair’s legal defense on the website indiegogo.com. DeChristopher is more well known for his own climate action in Utah in 2008 in which he bid on parcels of land being auctioned off for oil and gas leases. He spent 21 months in federal prison for interfering with the auction and making purchases he didn’t intend to pay for.

Ward said he and DeChristopher want to help people understand the legal risks of civil disobedience, find legal representation, and just simply learn about the climate crisis and its causes. As for the future of the climate change necessity defense, he called it a “hugely effective way to leverage change.”

Joseph E. Hamilton, a student at Harvard Law School who wrote a long piece for the Boston Globe in August about the case and its implications, told ThinkProgress that he’s sure there will be many more attempted climate necessity defenses in the future.

“I think the dismissal of charges will only embolden activists to commit more acts of civil disobedience and to attempt a climate necessity defense,” he said via email. “Activists can now point to a case where environmentalists admittedly broke the law and had their charges dropped because their actions were in defense of the planet.”

Furthermore, Hamilton thinks that even regardless of legal footing there will be a big rise in this sort of direct action simply due to the acuteness of the climate crisis. He pointed out that no law has been made or changed yet, so each new defendant will be “starting from square one.” The big hurdle for political defendants is getting their cases heard at all as they are oftentimes rejected by the defense before reaching a jury. Hamilton thinks this will probably happen in future climate necessity defenses, as well.

Hamilton said he has some minor issues with the case that make it less of a straightforward victory, primarily the restitution for police overtime, which he said is a “new tactic being used by prosecutors around the country to up the consequences for civil disobedience.” He said that the police are simply doing the job that taxpayers pay them to do when they monitor protests, and that “we don’t ask people who get in traffic accidents to pay for a police officer’s time in helping them.”

However the DA’s handling of the matter is a sure victory for the climate movement in Hamilton’s view.

“The DA could have dropped the charges and walked away,” he said. “Instead, he all but said that their criminal conduct was justified — which was precisely the point of their defense. This fact will certainly factor into future cases in some way, either in how prosecutors strategize or how judges view the viability of the defense.”

But really, notes Hamilton, the purpose of the climate necessity defense is not to get defendants off the hook, but to raise awareness. People who undertake direct action are generally willing to suffer certain legal repercussions, and the charges involved are usually minor and could be resolved more efficiently without preparing an elaborate defense.

“It might have been better for their cause in some ways to have a jury make this final determination of the justice of their actions,” said Hamilton. “But a prosecutor essentially refusing to prosecute because he agrees with the righteousness of the defendants’ criminal behavior is a powerful public message about the moral imperative to confront climate change and the failure of our political system to do so — precisely what the blockaders were aiming for in using the court system.”