Why getting arrested to resist the Keystone XL is legally justified

A #NOKXL activist is arrested during a sit-in outside TransCanada offices in Houston, Texas in 2013. (Flickr / Aaron M. Sprecher)

A #NoKXL activist is arrested during a sit-in outside TransCanada’s Houston offices in 2013. (Flickr / Aaron M. Sprecher)

Nearly 100,000 people have pledged to risk arrest if the Obama administration appears poised to give approval to the Keystone XL pipeline. While it would be difficult to prove, it seems likely that the specter of tens of thousands of Americans committing civil disobedience around the country may have influenced the Obama administration to further delay its decision on the pipeline last week. Senate Republican leader Mitch McConnell attributed news of the delay to the “weight” of “radical activists.” Still, with the pipeline not yet rejected, the KXL Pledge of Resistance will have to be kept trimmed and burning.

I am one of those who has signed the pledge. I believe our action, while making a personal moral statement, will also help initiate an effort to hold our governments accountable for complicity in the most heinous crime in history — the destruction of the natural conditions on which we and our posterity depend for our lives. Whether or not the courts that try protesters initially accept such an argument, I believe that we will ultimately win vindication in the court of public opinion. If I am arrested and have an opportunity to address a court, here is how I would explain the purpose and significance of our action.

The state has arrested me for breaking the law. It has charged me with the crime of entering property that was not mine and refusing to leave.

I do not deny that I went where the state says I went and did what it says I did. But I did so in order to halt a crime, perhaps the most consequential crime in human history. Therefore I believe my action was justified.

The state accuses me of violating a right of property. But I accuse the state, which is prosecuting me, of committing a far more serious violation of the law of property. Our state and national governments are authorizing private and public enterprises to lay waste to the very natural conditions that our people, our posterity and our species depend on for our survival. They are destroying the common property that is our most important inheritance.

I believe that my actions and the actions of tens of thousands of others in protesting the Keystone XL pipeline are necessary to prevent a far greater harm. These actions represent not only the assertion of a public right, but also the fulfillment of a citizen’s duty under U.S. law and the U.S. Constitution.

Governments have long served as trustees for rights held in common by the people — specifically, rights to the public natural resources on which we all depend. In American law, this role is defined by the “public trust doctrine,” under which the state serves as trustee on behalf of the present and future generations of its citizens. As trustee, the state has a strict “fiduciary duty” to the owners — the citizen beneficiaries. This legal duty requires government officials to act solely in the citizens’ interest, with “the highest duty of care.” Our officials have no legal right to harm the public trust in order to benefit a corporation — no matter how politically powerful it may be. The basis for this trust lies in common property rights recognized as far back as Roman times. Issued in 535 A.D., the Institutes of Justinian states: “By the law of nature these things are common to mankind — the air, running water, the sea, and consequently the shores of the sea.”

But instead of protecting its citizens’ common property rights as it is duty-bound to do, the state is permitting their destruction. In the case of the Keystone XL pipeline, it is preparing to issue permits allowing the transport of tar sands from Alberta that — according to James Hansen, the former head of NASA’s Goddard Institute for Space Studies and perhaps America’s most highly regarded climate scientist — “must be left in the ground” because “if the tar sands are thrown into the mix it is essentially game over” for a viable planet.

The property the state is permitting to be destroyed — our earth’s atmosphere — remains the common property of the American people, the people of the world and our posterity. The United States and other governments are trustees for the world’s people, with a legal duty to exercise the highest level of care to protect this asset upon which our lives depend. The American government, like so many others, stands in gross dereliction of that duty. It is the government that should be in the dock for crimes against its own people, our posterity and the people of the world.

In 2007, five activists climbed the chimney of the Kingsnorth coal-fired power plant in Kent, England, painted a protest message on it, and tried to shut down the plant. The government charged them and an associate with causing more than $50,000 dollars worth of damage. The protesters admitted they had entered and tried to shut down the plant, but argued that they were legally justified in doing so because they were trying to prevent climate change from causing far greater damage to property around the world.

In an eight-day trial, NASA’s James Hansen told the court that humanity was in “grave peril” and that “somebody needs to step forward and say there has to be a moratorium” against coal-fired plants. He testified that carbon dioxide emitted from the plant could be responsible for the extinction of up to 400 species. Other witnesses described property that was in peril of destruction from climate change. The Pacific island state of Tuvalu and parts of Greenland were at risk from rising sea level — as were areas right there in Kent, England.

In his summing-up at the end of the trial, the judge said the case centered on whether or not the protesters had a “lawful excuse” for their actions. He told the jury of nine men and three women that to use a lawful excuse defense the protesters had to prove that their action was due to an immediate need to protect property belonging to another. By majority vote the jury voted to clear the Kingsnorth Six.

American law includes a parallel to “lawful excuse” known as the “necessity defense.” Defendants can argue that even if they violated a law, their action was necessary to prevent far greater damage. American courts have several times acquitted war protesters who made a necessity defense, but as yet they have not acted similarly for climate protesters.

But the public trust doctrine is well-established law, and courts are expanding its reach. The Pennsylvania Supreme Court overturned a law in December that prevented local communities from blocking fracking. The plurality opinion held that public natural resources are owned in common by the people, including future generations. Because the state is the trustee of these resources, it has a fiduciary duty to “conserve and maintain” them. The state has “a duty to refrain from permitting or encouraging the degradation, diminution, or depletion of public natural resources.” This underlying principle of the public trust doctrine applies to the federal government as well.

If the U.S. government gives a permit for the building of the Keystone XL pipeline, it is surely “permitting or encouraging the degradation, diminution, or depletion of public natural resources” — indeed, of the public natural resource on which we most directly depend for our survival, the atmosphere. If they approve the Keystone XL pipeline, our current leaders will themselves be committing a crime of historic, life-threatening proportions in violation of their fiduciary duty owed to “we the people” and our children and posterity.

But protecting the atmosphere is not just a matter for governments. Indeed, it is the very failure of governments to protect the public trust that has prompted the climate-protection movement to turn to mass civil disobedience. Looked at from the perspective of the public trust doctrine, these actions are not violating the law, but attempting to enforce it. Indeed, they embody the effort of tens of thousands of people to assert their collective right and responsibility to protect our public trust property, which includes resources essential to our survival. So I ask you to find that my action was necessary to prevent a far greater harm — indeed, a harm that by virtue of the public trust doctrine is itself a violation of law on a historic scale.

What happens to me in this court is of little importance. But what happens to the Keystone XL pipeline and other sources of carbon emissions will determine the fate of our posterity.

The Kingsnorth Six decision sent a strong message that judges and juries can choose not to be complicit in the state’s waste of the public trust — the earth’s atmosphere. You have that same opportunity here today.

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