Civil disobedience and climate change

Tim DeChristopher (right) and his attorney, Ron Yengich. Photo: Keith Johnson, Deseret News
Tim DeChristopher (right) and his attorney, Ron Yengich. Photo: Keith Johnson, Deseret News

On Friday, the New York Times carried a story about Tim DeChristopher, the economics student in Utah who bid on federal oil and gas leases at an auction last December as a form of protest against global warming. DeChristopher was the winning bidder on 14 parcels, but admits that he never had either the intent or the ability to pay the $1.7 million he bid. He is now facing criminal charges of interfering with an auction and making false statements on a bidding form. DeChristopher’s attorney has argued that he should be allowed to present a necessity defense to a jury. In a hearing last month, the judge was unpersuaded, but did give the defense time to submit a written brief in support of its claim.

As the Times reports, the necessity defense is a long shot in a case like this. A defendant claiming necessity must show that he or she acted to prevent an imminent harm greater than that caused by the protest, and that there was no other legal option.

DeChristopher is of course not the only environmental protester to appeal to the necessity defense. It’s a time-honored, and typically unsuccessful, strategy for tree-sitters and other monkey-wrenchers seeking to halt logging or other environmentally destructive actions. As climate change protests have become more common and more aggressive (CoalSwarm lists 52 direct action protests against coal worldwide so far in 2009), necessity claims have become popular with climate protesters.

The partially painted tower at the Kingsnorth power station. Photo: BBC News
The partially painted tower at the Kingsnorth power station. Photo: BBC News

What the Times story failed to note is that there’s been one notable successful use of the necessity defense. In October 2007, five Greenpeace activists climbed the chimney of the Kingsnorth power plant in England to protest a plan to build a new coal-fired unit at the plant. The plant was temporarily shut down, and the activists managed to paint the first word of a planned message to the prime minister. They, and an organizer who stayed on the ground, were arrested and charged with causing £ 30,000 worth of damage. At their trial, the judge allowed the defense to call a series of witnesses, including high-profile NASA scientist James Hansen, to testify to the harms threatened by global warming. After being directed to consider whether the activists had a lawful excuse, the jury found them not guilty.

Activists cheered the Kingsnorth decision while others called it “a green light to anarchy.” So far, it has not been repeated, in England or elsewhere. This summer, activists who (peacefully) hijacked a train carrying coal to a power station in Yorkshire were convicted after the judge refused to allow introduction of a necessity defense. The sentences imposed were light.

Back to DeChristopher, it seems unlikely that he can make out a necessity defense. The lease auction he interfered with is only the first step in a lengthy chain leading to actual drilling, and other legal means of opposing the auction were readily available. A coalition of environmental groups successfully challenged the auction in federal court, winning a preliminary injunction that temporarily halted implemenatation of 77 leases when a judge concluded that they had established a likelihood of success on their claims of inadequate environmental review. Interior Secretary Ken Salazar pulled the leases temporarily. Last week, BLM issued a report recommending that many of them be deferred pending further review.

What DeChristopher did was not necessary to stop the leases, but it did draw considerable media attention to them, and that in turn was part of what convinced the Interior Department to take a second look. While he can’t make out a necessity defense, he also did not risk human life (as the Kingsnorth protesters did) or cause large-scale disruption. It would be pretty easy for Interior to avoid this kind of monkey-wrenching in the future, simply by imposing pre-qualification requirements for auction bidders (is anyone else surprised that any one off the street can apparently go into one of these auctions, bid millions, and be taken seriously?). And it turns out that the lease procedure was seriously flawed. Under the circumstances, some exercise of prosecutorial discretion seems called for. It’s hard to imagine that justice would be served by convicting DeChristopher of serious felonies.

Reader Comments

4 Replies to “Civil disobedience and climate change”

  1. I too, was dumbstruck that anybody could wander in off the prairie and bid on BLM leases, especially on controversial leases that had gotten lots of press. (Could be a movie!) But then, Interior was busy with other things like snorting cocaine and having sex with industry reps.

    Brings up another question: Can an environmental group go into an auction and seriously bid for parcels? Bidding with the clear intention of leaving the land fallow, or even just to jack up the price the oil companies pay (and the US receives) for the bid? I know there are requirements for leases to be developed. But I also know that lots of leases are held and not developed. I think judges have ruled against conservation groups trying to buy up grazing rights on federal land, even though they are willing to pay more.

  2. Good question. You are right about grazing permits. The Clinton administration experimented with “conservation use” permits as part of its rangeland reform program, but the Tenth Circuit ruled that the statutes authorizing federal grazing permits require that the primary purpose of those permits be grazing. The case is Public Lands Council v. Babbitt, 167 F.3d 1287 (10th Cir. 1999). It went up to the Supreme Court but that issue was not appealed. Still, permit buy-outs can occur if the BLM is willing to go along (which it wasn’t in the Bush administration). Permit holders can surrender their permits, and BLM can determine that the area is no longer suitable for grazing. A side payment from a conservation group can ease that transition for the permit holder.
    I’m not an expert by any means on federal lands oil and gas leasing, but I think the same general dynamic operates. The leasing statutes assume that the lease holder will do some basic exploration and development. Leases can be canceled if those efforts are not diligently pursued, and initial leases expire if they are not producing oil or gas in paying quantities within a specified time period (subject to extensions, which seem to be pretty routine). But as with grazing permits, lease rights can be surrendered. If conservation groups could come up with enough cash, they might be able to buy out some leases and then persuade BLM not to re-lease the area. The rub, of course, again as with grazing permits, is that a new lease could be issued if the administration changed, or just changed its mind.

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About Holly

Holly Doremus is the James H. House and Hiram H. Hurd Professor of Environmental Regulation at UC Berkeley. Doremus brings a strong background in life sciences and a comm…

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