Henry David T. versus Energy Enterprise

On May 15th, 2013, a small lobster boat flying a banner that read “coal is stupid” dropped anchor in waters in front of the Brayton Point Power Station in Massachusetts. The two eco-activists aboard the boat, named the Henry David T., thereby blocked the path of the coal ship Energy Enterprise, which was carrying a load of 40,000 tons of energy-rich coal, from reaching the power plant.

The two environmental activists aboard the lobster boat, Ken Ward and Jay O’Hara, were charged with conspiracy, operating a motor vessel negligently and disturbing the peace. Facing incarceration, their trial was set to start on September 8th of this year.

The two men had planned to use the “necessity defense” in their trial — a legal precedent going back hundreds of years. The “necessity defense” applies when a crime is committed, but the perpetrator had no other choice. “Traditionally, this defense is used for situations like a prisoner fleeing from a burning jail . . .,” explains an article in The Boston Globe. The article lays out some examples of how the defense has been used historically: “In 1551, an English merchant successfully argued that he was justified in throwing precious cargo off his ship to avoid capsizing during a severe storm. In 1853, the mayor of San Francisco was found not liable for destroying a number of homes to halt the spread of an enormous fire.” The key point is that for the defense to apply, the perpetrator has to be under an imminent threat to his life or property.

Attorneys for Ward and O’Hara hoped to convince the court that the pair had to block the coal ship to avoid an equally imminent danger: catastrophic climate change.

The case was shaping up to be a major platform for the environmentalist movement. Prominent environmentalist activists Bill McKibben and James Hansen were set to testify for the defendants to bolster the argument that their actions were “necessary” in order to defend the environment and avoid the “immediate danger” of catastrophic climate change.

But they didn’t have to.

Just as the trial was about to get underway, Bristol County District Attorney Sam Sutter dropped or reduced all charges against the two men. Standing outside the Fall River Justice Center, Sutter held aloft a copy of a Rolling Stone Magazine, open to
an article by Bill McKibben titled “A Call to Arms: An Invitation to Demand Action on Climate Change,” and voiced his support for the two activists. “[Climate change] is one of the gravest crises the planet has ever faced. The evidence is overwhelming and it keeps getting worse. So we took a stand here today,” he declared. To a cheering crowd, Sutter also announced his intention to march alongside the accused in a climate change rally in September.

I wish I could say that this story was a joke or a scene from a scary movie. But there is no punch line, the lights aren’t coming on and you can’t leave the theater. It’s real and there’s video, which shows a prosecutor publically flaunting his intention to ignore the rule of law for the sake of environmentalist goals and ideology.

Sutter didn’t argue that the two men hadn’t taken the actions they were accused of. Indeed, invoking the necessity defense means that the men admitted they took these actions and that they did so intentionally. Instead, Sutter ignored the actions of the pair because in his eyes, they had good intentions.

In a statement, defendant Ken Ward praised Sutter for his decision: “By dropping the criminal charges against us and stating that ‘political leadership on this [climate] issue has been gravely lacking,’ DA Sutter in effect accepted our necessity defense.”

And in doing so, Sutter gave a giant, green floodlight to future eco-criminals.

The necessity defense makes sense only in circumstances in which a person had no choice but to act in the face of death or great harm to himself. But Ward and O’Hara were not in any danger at all. Instead, they were acting on their belief in a vague and undefined “threat” that will supposedly come to pass many decades from now — the alleged threat of “climate change.” Blocking a ship from delivering coal wasn’t necessary to stop an imminent threat to their rights; in fact, their actions only succeeded in violating the rights of someone else.

Consider what would happen if we applied Sutter’s approach to the law in other contexts.

Put sugar in the gas tanks of an entire parking-lot-full of cars? That’s okay, cars burn gasoline which is causing an “imminent danger” from climate change. What about spiking trees to cause injury to loggers? No problem if a prosecutor agrees that those trees shouldn’t be cut down in the first place. And if it’s okay to violate the property rights of coal companies by stopping a ship — after all, the danger from generating electricity from coal is allegedly “imminent” — why not excuse criminals when they sabotage the coal plant and sink the entire ship?

What if this had been the attitude in the past? In the 1960s, environmentalist Paul Ehrlich warned of a population bomb that was going to kill multitudes of people if drastic human population control measures weren’t immediately implemented, “by compulsion if voluntary methods fail.” If prosecutors excused criminal actions based on these dire predictions, bombing a maternity ward to stop that “imminent danger” would have been pardoned. In the 1970s, global cooling was hyped as an “imminent threat.” If prosecutors took Sutter’s approach to the law then, ecoterrorists setting fire to a housing complex to warm up the world would have been excusable.

There was even a 1975 Newsweek article written about it that a prosecutor could have waved about.