On October 23, Alec Johnson, a.k.a. “Climate Hawk,” is scheduled to go on trial for having locked himself to a construction excavator in Tushka, Okla., on Earth Day 2013, as part of the Tar Sands Blockade campaign to stop the Keystone XL pipeline. He intends to argue that resisting the pipeline was necessary in order to protect the public trust — the common property right of the people to essential natural resources. Johnson will be the first defendant anywhere to make a necessity defense based on the duty of government to protect the climate under the public trust doctrine.
Johnson explained his stand in a speech delivered in Nacogdoches, Texas, last month, on the day of the People’s Climate March, saying, “When it comes to our commons, to our public property, we the people have rights in a public trust.” The public trust doctrine “assures us that we have rights when it comes to how our public commons are administered by any trustees placed in charge of it.” We the people are “armed” by such legal doctrine. We now “demand our environmental institutions and agencies recognize their responsibilities as trustees and exercise their fiduciary responsibility to act with ‘the highest duty of care,’ to ensure the sustained resource abundance necessary for society’s endurance.”
The Keystone XL pipeline itself, Johnson continued, is “proof that our trustees have failed in their fiduciary duty to ‘We the People.’” The presence of any portion of this pipeline in the ground “incontestably proves that the states of Oklahoma and Texas have failed.” And the U.S. government has failed to discharge “the highest duty of care” on behalf of this and future generations.
Johnson describes himself as “a father and a recovering economist.” Becoming a father over 33 years ago “proved to be a profound transformation, revealing how a river of time connects us all to our ancestors and, as parents, to all our descendants.” In its rolling flow, this river “whispers over and over again our eternal obligation shared with all our ancestors: to protect the descendants, to look out for our children.” It is “a sacred obligation.”
Nowhere is this more apparent than when it comes to the “commons” of our only atmosphere. This obligation, Johnson said, “does not permit robbing resources from our children’s future.” And yet we are “drawing down resources, as much their birthright as ours, headlong consuming them with scant consideration for the devastation this will visit on our children.”
Johnson first ran into the idea of using the public trust doctrine for climate protection in one of my articles for Waging Nonviolence and followed up by reading “Nature’s Trust,” the magisterial study of public trust doctrine by University of Oregon legal scholar Mary Christina Wood. He cites her statement that the public’s lasting ownership interest in the public trust “vests in both present and future generations as legal beneficiaries.” Public trust law demands that government “act as a trustee in controlling and managing crucial natural assets.” Held to strict fiduciary obligation, government must “promote the interests of the citizen beneficiaries.”
Johnson described the public trust as the “central assertion” and “moral foundation” of his defense. “I’m hoping,” he explained, “that citizenship and a rousing interest in the public trust doctrine will allow the jury and me to meet on the ‘open road’ Walt Whitman speaks of in his ‘Song of the Open Road.'” Together, they might discover, as Whitman wrote, that:
Here a great personal deed has room;
A great deed seizes upon the hearts of the whole race of men,
Its effusion of strength and will overwhelms law, and mocks all authority and all argument against it.
In a web appeal for support, Johnson wrote, “I won’t plead guilty for taking direct action against extreme energy madness. Enforcing our children’s rights to climate justice is no crime.” He also asked supporters to join him for a rally in front of the Atoka County Courthouse in Atoka, Okla., on October 22, and to attend the trial the following day.
“We mean to pack the place and send a loud message demanding climate justice now!”