Protesting against climate breakdown: novel legal options

In Oregon 1977, 82 protesters blockaded the entrance to a nuclear power plant. Tried for criminal trespass, the defendants argued they chose the lesser evil — to stand against the nuclear industry rather than ignore an existential risk to the planet. The jury acquitted all of the protesters. The Oregonian legislation excused criminal malfeasance if the act was necessary and reasonable to avoid an imminent public or private injury of greater magnitude. This jurisdiction is not alone in having a lesser of two evils or necessity defence to breaking the law, a doctrine found in common law systems including Australia’s.

Likewise, today some climate activists assert this defence against charges of trespass, property damage and other misdemeanours connected to their civil disobedience. Participants in the Extinction Rebellion (XR) movement and other anti-fossil fuel groups who are blockading trains, locking on to gates or doing mass “die-ins” in public spaces, believe they are justified in flouting the law to prevent the breakdown of the global climate. In other words, they see that acting for this cause is a necessity outweighing any temporary inconvenience or nuisance to others. This article assesses recent judicial consideration in Australia and abroad of the climate emergency as a necessity defence.