Sauntering to court with Judge Learned Hand, Oliver Wendell Holmes — never the model of a strict constructionist — urged him “to do justice.” Hand is said to have responded, in his eminently quotable manner: “That is not my job. My job is to play the game, according to the rules.”
Bristol District Attorney C. Samuel Sutter, abandoning the duties of his job in order to play games, has jettisoned the rules he pledged to uphold in order to strut with the peacocks of the “climate movement.” His decision, on September 8, to dismiss charges against environmental activists for disrupting a 40,000-ton coal delivery to a Massachusetts power plant has made a mockery of a fundamental principle of civil disobedience, as articulated by the likes of Henry David Thoreau and Martin Luther King, Jr.: If you break the law to highlight injustice, you suffer the consequences. Otherwise, some modicum of anarchy seeps into civil society.
The saga began on May 15, 2013, when Ken Ward and Jay O’Hara launched a boat they rechristened the Henry David T., with the aim of interrupting the delivery of West Virginia coal to the Brayton Point Power Station, in Somerset, Massachusetts.
“Bold action is required,” they declared, “to achieve the deep emissions reductions the science says we need for a stable planet.” By blocking a freighter, Ward and O’Hara delayed the coal shipment by a day — a cost that Massachusetts ratepayers and the impoverished residents of Appalachia will bear. Afloat in the Somerset shipping channel, Ward and O’Hara unfurled a banner bearing the hashtag, “#coalisstupid.”
The charges filed against them were not trivial, and included the risk of jail time: Disturbing the peace, nearly causing a naval collision, negligent operation of a motor vessel, and perpetrating a conspiracy.
Far more consequential than the charges was their defense: The “necessity” of lawbreaking to forestall the earth’s demise. In other words, their actions were justified — so they argued — to avert the burning of coal, which sets the planet ablaze. It is the first climate necessity defense in U.S. history to be vindicated, thanks to the derelict moral preening of a district attorney tasked, presumably, to prosecute defendants — not empathize with them.
The defendants’ arguments, fueled by their ruthless cocksureness about “the science,” were self-evidently absurd: In their words, the coal shipment represented “a clear and imminent danger” that is not “debatable or speculative”; they “reasonably expected” that blocking it briefly with a little boat “would be effective in directly reducing or eliminating the danger”; and “there was no legal alternative which would have been effective to reduce or eliminate the danger.”
Their defense is a illuminating encapsulation of the ideology animating many environmental activists: The clear and imminent danger of fire in a crowded theater is beyond debate, since the earth is our blazing theater and apocalypse is nearly upon us. Debate is deadly because it delays action and deepens ambivalence; therefore, rather than conducing to understanding, debate hardens ignorance. If eschewing meat for supper reduces one’s carbon footprint, then it follows that no act of disruptive activism is too small, even if the tangible long-term results are negligible — such as delaying, for one day, the provision of a critical baseload power resource to Massachusetts residents.
Brandishing a copy of Rolling Stone to make his case — if one may call it that — on the day of dismissal, Sutter’s moral authority as an upholder of the law devolved into a display of mere moralism: “I have a duty to go forward … with this case and to follow the applicable case law, but [the defendants] were looking for a forum to present their very compelling case about climate change. I do believe they’re right, that we’re at a crisis point with climate change.”
The decision to dismiss was, he said, “made with our concerns for … the children of Bristol County and beyond … I spoke from the heart.”
Ah, yes — the children. Thwarting climate change, which equates to protecting the world’s children, is a sufficiently clear and present danger that it excuses a near-collision of the activists’ boat with the freighter carrying the deadly coal cargo.
As Sutter surely was aware, one determinant of the success of a necessity defense; establishing a nexus between a defendant’s act and the immediate remedying of an “evil” he claims his illegal act will obtain, was missing in the case before him.
In 1991, the Ninth Circuit upheld the conviction of three activists who poured blood inside an IRS office to protest United States policy in El Salvador. Judge Robert Boochever, writing for the majority in United States v. Schoon, noted that the defendants’ claim that the end of U.S. involvement in the region would commence from the act of smearing blood in a government office was, in so many words, ridiculous.
Without a plausible argument proving their disruption of an IRS office itself remedied a clear and present “evil,” Boochever maintained, protesters had to face the legal consequences of their behavior.
Climate demonstrators have argued their disruptions are legally analogous to a prisoner fleeing a burning jail — a textbook example of common-law necessity defense. “Ken and I both got on that boat and stood in front of this freighter because we need to stop burning coal immediately,” O’Hara said. Of course, no such scenario could possibly occur. Hence their necessity defense was no defense at all.
But it proved popular with the DA — and, not surprisingly, some members of the academy. “Underlying these protests,” said Mary Wood, a professor at the University of Oregon School of Law, “is the sentiment that the government itself is acting illegally — the government’s permission to the fossil fuel companies amounts to property damage and amounts to a breach of trust to the American people.”
Never mind the damage inflicted on a legally-operating power plant’s bottom-line — and hence to ratepayers. Mainstream-minded energy regulators — myself among them — still consider coal an essential component of a diverse energy portfolio, the diversity of which is critical to forestalling blackouts and brownouts. Undermining utility regulators’ ability to implement their commitment to ensuring just and reasonable rates — and to procure energy sources that are affordable, abundant and reliable — is itself a breach of trust to the nation.
Sutter and his fellow travelers will not likely be deterred by the clear and present danger of blackouts, given that they are in the grip of physics-defying fantasies which would have the nation over-reliant on the politically-favored fuels they deem morally suitable. With the laurels of a hero doubtless entwined about his brow, Sutter will be showcasing his environmental piety at the People’s Climate March, in New York City, on September 21. Should Sutter suffer any form of injustice at the march, he can only hope that the judicial system will be less cavalier about the consequences of lawbreaking than he.
Bob Stump, a former three-term member of the Arizona House of Representatives, is chairman of the Arizona Corporation Commission, a statewide elective office that regulates most Arizona utilities. He is also chairman of Phoenix Opera. You can follow him on Twitter at @bobstump.