The Climate Necessity Defense: Protecting Public Participation in the US Climate Policy Debate in a World of Shrinking Options
13 Pages Posted: 10 Nov 2018 Last revised: 8 May 2019
Date Written: October 17, 2018
Scholars have documented how since 1989 the climate change counter-movement, a densely connected and well-funded network of fossil fuel industry members and their allies, has worked to stymie government action on climate change. Recent allegations that key actors in the climate change counter-movement, including Exxon Mobil, actively misled the public on the science of climate change have given rise to litigation and investigations by states attorney general. At the same time, climate protesters have been facing violence, harassment, and legislative crackdowns. Some climate protesters facing criminal charges for civil disobedience are attempting to use the climate necessity defense in court. The essential thrust of the climate necessity defense, an affirmative defense to criminal charges arising from civil disobedience, is that the harm of the defendants’ disobedience is far outweighed by the harms being protested. This article sketches some initial connections between the influence of the climate change counter-movement, the crackdown on climate protesters, and the importance of the climate necessity defense. In doing so, it highlights the shrinking options available to members of the public to participate in the debate over climate policy, underscoring why some might feel compelled to engage in civil disobedience. Finally, it briefly discusses the climate necessity defense and argues that it is an important tool to help ensure the US public has an effective voice in climate policy.
Keywords: climate change, climate change litigation, climate litigation, climate necessity defense, necessity defense, climate change counter-movement
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