In Defense of the Necessity Defense


Though the necessity defense is not a common legal argument, it is employed by many young protesters (Courtesy of Owen Corrigan).

By Robin Happel

Though the necessity defense is not a common legal argument, it is employed by many young protesters (Courtesy of Owen Corrigan).

When many of us read Thoreau in high school, it was hard to imagine that his warbling over songbirds and squirrels would someday center in heated legal battles. Nevertheless, Thoreau’s “On the Duty of Civil Disobedience” forms part of the argument behind the “necessity defense,” a landmark precedent in environmental law. In keeping with his principles of passive resistance, those who follow in its footsteps claim that it is better to be jailed than live an unjust life. (In the words of one pipeline protester, “I’m just more afraid of climate change than I am of prison.”)

Thoreau’s view of what we owe to each other was centered on the abolition of slavery, but since his famous night in jail, this philosophy has expanded to include everything from CIA actions overseas to sabotaging oil and gas rigs. In common law today, the “necessity defense” describes an individual’s sense that following the law causes more harm than breaking it. Although commonly used in more straightforward cases of self-defense, the necessity defense may also be applied to more amorphous societal harm. Almost unique within the American court system, this defense allows the accused to flip the script and interrogate their accusers.

Perhaps most famously, in 1987 students at U Mass successfully “put the CIA on trial,” much as activists today seek to put Big Oil on trial. By the late 1980’s, student resistance to Reagan’s foreign policy had reached a fever pitch, and students staged an illegal sit-in to protest CIA recruitment on campus. Amy Carter, daughter of the former president, and 13 other protestors were acquitted after arguing that they were morally required to oppose the CIA’s alleged abuses abroad. Although the Reagan administration’s reign of interventionism would continue, their victory was still a powerful blow to the status quo. In pushing the necessity defense, activists bravely battled the CIA in an age when such a legal strategy was almost unheard of.

In an almost eerie parallel to the U Mass case, 13 activists, including Karenna Gore, daughter of the former vice president, were recently acquitted following an anti-fracking protest. Arguing under the same Massachusetts standard, they claimed that climate change created a moral imperative to oppose oil and gas expansion. Although it is unclear, as in Amy Carter’s case, if this was really the argument the judge found most persuasive, it still sets a powerful precedent.

In the words of environmentalist Bill McKibben, such a victory “may be a first in America.” Although judges have previously allowed necessity defenses to be heard, such decisive victories are rare and not without risk, as defendants in similar cases have been threatened with up to a decade in prison. Notably, Leonard Higgins, the almost 70-year-old grandfather who managed to temporarily sabotage over 10 percent of U.S. oil imports, was recently given a suspended sentence. Although his gamble in attempting a necessity defense largely paid off, some of his associates were not so lucky, with at least one sentenced to several years in jail. Judges across the country also vary widely in their willingness to hear a necessity defense, with more conservative courtrooms telling a jury to disregard such claims, or even banning such arguments entirely.

While the necessity defense is still a relatively rare legal argument, this latest decision signals perhaps something of a sea change in the courts.
Much as the U Mass case marked student activists as a force to be reckoned with, perhaps this latest precedent will prove that climate change truly can be fought through the courts. It is up to all of to define for ourselves what is necessary and how far we would go to peacefully protest.


Robin Happel, FCRH ’19, is an environmental studies major from Jonesborough, Tennessee.