State v. Higgins

The Montana Supreme Court upheld a trial court decision precluding a climate change activist from presenting a common law necessity defense. The activist—who cut a chain to gain access to a pipeline facility and then turned off the flow of oil—was convicted of misdemeanor criminal trespass and felony criminal mischief. The Montana Supreme Court found that the necessity defense was not available to the defendant for his “indirect civil disobedience” (i.e., conduct involving violation of a law that was not itself the object of protest). The Supreme Court also noted that the trial court had found a lack of immediacy in the harm. The Supreme Court also rejected the application of out-of-state authority allowing the necessity defense in a similar context and was not persuaded by the defendant’s contention that the trial court had unfairly raised the necessity issue at trial by questioning the defendant about his “perception of the immediacy of the climate problem.”