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What Is the 'Necessity Defense' and Can It Work for Environmentalists?

By Lisa M. Schaffer, Esq. on July 23, 2018 | Last updated on March 21, 2019

If the Justice League can use the necessity defense, why not environmentalists? That will be the question posed by two defendants in an upcoming Minnesota criminal case. Emily Johnston and Annette Klapstein, two environmental activists in a group dubbed the Valve Turners, will try to be the first U.S. environmentalists to use this defense successfully, claiming their crimes of felony criminal mischief, felony conspiracy to commit criminal mischief, and criminal trespass were justified to do a greater good -- saving planet Earth.

Supergreens to the Rescue!

On the morning of October 11, 2016, numerous members of an environmentalist group carried out a coordinated attack on the 2,700 mile Keystone Pipeline, which carries about 70% of the crude oil from Canada to the Texas Coast refineries. The attacks were performed in four locations: Washington, Montana, Minnesota and North Dakota. The basics of these attacks were all the same -- cut a lock, trespass, get to the shut-off valve, pull a lever and cut a chain, which turns the pipeline off. Each incident was filmed to document the event.

What Is the Necessity Defense

The necessity defense is used in instances where a defendant intentionally broke the law in order to prevent something worse from happening. To successfully use the necessity defense, you have to show:

  • A specific threat of significant, imminent danger
  • It was necessary to act immediately at all times as there was no other practical alternatives
  • The defendant didn't cause or contribute to the underlying harmful act, AND
  • The harm caused was less than the harm prevented

This is a very difficult defense to prove. Layer on that this is the first time environmentalists have been allowed to use this defense, and the odds grow longer. Other members of the Valve Turners have unsuccessfully tried to use the necessity defense in their trials, using the same set of facts though in other states. They were subsequently convicted of various crimes with penalties ranging from probation to 20 years in prison.

You Can't Win If You Don't Play

The Valve Turners know the odds of using the necessity defense are a long-shot, but they believe there are no other viable legal offenses or defenses for what they claim is the inevitable flow of climate change and the certain demise of the planet. Yet the necessity defense has rarely been allowed in civil disobedience cases, even more rarely been successful, and never in an attempt to Save the Planet. As the saying goes, "you've got to stand for something or you'll fall for anything". The State of Minnesota will soon tell us the penalty that Johnson and Klapstein will face for standing up for Mother Earth.

If you have found yourself in hot water protecting the environment, contact a local civil rights attorney who may be able to help you successfully defend your position.

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