Protesting against climate breakdown: novel legal options

In Oregon 1977, 82 protesters blockaded the entranceto a nuclear power plant. Tried for criminal trespass, thedefendants argued they chose the lesser evil — to standagainst the nuclear industry rather than ignore an existential risk to the planet. The jury acquitted all of theprotesters. The Oregonian legislation excused criminalmalfeasance if the act was necessary and reasonable toavoid an imminent public or private injury of greatermagnitude. This jurisdiction is not alone in having alesser of two evils or necessity defence to breaking thelaw, a doctrine found in common law systems includingAustralia’s.Likewise, today some climate activists assert thisdefence against charges of trespass, property damageand other misdemeanours connected to their civil disobedience. Participants in the Extinction Rebellion (XR)movement and other anti-fossil fuel groups who areblockading trains, locking on to gates or doing mass“die-ins” in public spaces, believe they are justified inflouting the law to prevent the breakdown of the globalclimate.In other words, they see that acting for thiscause is a necessity outweighing any temporary inconvenience or nuisance to others. This article assessesrecent judicial consideration in Australia and abroad ofthe climate emergency as a necessity defence