State v. Ward

The Washington Supreme Court denied a petition to review an intermediate appellate court’s determination that a pipeline protester should be allowed to present a climate change necessity defense. The Climate Defense Project, which represents the defendant, <a href="https://climatedefenseproject.org/victory-for-climate-necessity-defense-upheld-at-washington-supreme-court/">said</a> the Supreme Court decision made Washington the first state to affirmatively recognize the right of a climate activist to offer the necessity defense at trial.

The Washington Court of Appeals held that a trial court order excluding testimony and evidence on the necessity defense deprived a climate change protester of his Sixth Amendment right to present a defense. The protester was convicted of burglary in the second degree after he broke into a pipeline facility and turned off a valve, stopping the flow of Canadian tar sands oil to refineries in Washington. The court found that the protester had presented “a sufficient quantum of evidence to show that he would likely be able to meet each element of the necessity defense.” First, the court said the defendant’s proof of how past acts of civil disobedience had been successful, of previous climate activism campaigns, and of his own personal experience of effecting change through civil disobedience was sufficient evidence that he believed his actions were necessary to minimize the harms he perceived. Second, the court found that the defendant had offered sufficient evidence that the harms of climate change were greater than the harm of breaking into the pipeline facility. Third, the court said whether the harms of global climate change were caused by the defendant was not at issue in this case but noted that the defendant had proffered evidence about the “root causes” of global climate change. Fourth, the court found that the defendant offered sufficient evidence of the absence of reasonable legal alternatives. The evidence included the defendant’s 40 years of involvement in environmental movements, his numerous attempts to address climate change, and the failures of most of those efforts. The court also concluded that the defendant’s actions “were not intended to be merely symbolic in nature” (since he sought not just to alleviate climate change “generally” but to address the “specific dangers” of tar sands oil and sea level rise in Washington) and that the evidence offered therefore was not solely aimed at inducing jury nullification. The court also found that the denial of the defendant’s constitutional rights was not harmless since even on the “closest question” of whether the defendant admitted he had reasonable legal alternatives a jury could “well have concluded that [the] available legal alternatives were futile.” The court reversed and remanded for a new trial.