THE CLIMATE NECESSITY DEFENSE: PROTECTING PUBLIC PARTICIPATION IN THE U.S. CLIMATE POLICY DEBATE IN A WORLD OF SHRINKING OPTIONS.

• Author: Nosek, Grace

1. INTRODUCTION 250 II. THE INFLUENCE OF THE CLIMATE CHANGE COUNTER-MOVEMENT 250 III. A CRACKDOWN ON CLIMATE PROTESTERS 253 IV. THE CLIMATE NECESSITY DEFENSE: AN IMPORTANT TOOL 258 V. CONCLUSION 261 I. INTRODUCTION

   More than a hundred law professors recently filed an amicus brief in Minnesota v. Klapstein, in support of the defendant climate activists' right to present a climate necessity defense. (1) The brief argues that the fossil fuel industry and its allies are using their immense economic advantage to influence climate policy while climate activists encounter violence and harassment in the course of their political protest. (2) My Essay seeks to more deeply examine the connections between these two phenomena. How does the outsized influence of the fossil fuel industry over climate policy impact the public's ability to protest on climate issues? That is a huge question, requiring comprehensive analysis beyond the scope of this Essay. My Essay will sketch some initial connections between the influence of the climate change counter-movement--a network of fossil fuel industry members and their allies--the crackdown on climate protesters, (3) and the importance of the climate necessity defense. (4) The essential thrust of the climate necessity defense, an affirmative defense to criminal charges arising from civil disobedience, is that the harm of the defendants' disobedience is far outweighed by the harms being protested. (5) In Part II of my Essay I will describe the climate change counter-movement and detail the tactics used by the movement to shape societal and policy narratives on climate change. Then, I will highlight the crackdown on environmental and climate protesters in the United States, analyzing how such a crackdown might connect to the actions of the climate change counter-movement. Finally, I will describe the climate necessity defense and argue that it is an important tool to help ensure the U.S. public has an effective voice in climate policy.

2. THE INFLUENCE OF THE CLIMATE CHANGE COUNTER-MOVEMENT

   Scholars have identified the emergence of a climate change counter-movement (CCCM), composed of a network of stakeholders--including corporations, trade associations, think tanks, advocacy groups, and foundations--with the common goal of entrenching fossil fuel extraction and blocking government action restricting greenhouse gas emissions. (6) The CCCM coalesced in 1989, right after the Intergovernmental Panel on Climate Change was created. (7) Since then, the movement "has not only played a major role in confounding public understanding of climate science, but also successfully delayed meaningful government policy actions to address [climate change]." (8) How has the climate change counter-movement been successful at confusing the public and slowing government action? Robert Brulle highlights strategies that CCCM organizations have used to argue for inaction on climate change, "including the provision of Congressional testimony, publication of documents on these organizations websites, the publication of conservative anti-climate change editorials, and books critical of the need to address climate change." (9) Brulle also notes the significant financial resources CCCM organizations have at their disposal to make these arguments. (10) He found that CCCM organizations operating between 2003 and 2010 had, on average, a total yearly income of more than $900 million. (11) Many of those organizations focused on several advocacy issues, so not all of that income was devoted to climate change communications, but that number gives a sense of the scale of resources available to organizations attempting to block regulation of greenhouse gas emissions. (12)

   In addition to the strategies already highlighted, the CCCM also uses corporate Political Action Committees (PACs) in an attempt to influence legislative voting on climate policy, and environmental policy more broadly. (13) Corporate PACs can influence elections and legislative votes "by running advertising campaigns whereby they 'spend unlimited amounts on behalf of issues and candidates they like or against those they dislike.'" (14) Scholars found that PACs related to the CCCM could significantly affect congressional voting on environmental issues through donations. (15)

   While many of the strategies employed by the CCCM were and are legal, the legality of several strategies has recently been challenged. (16) Several states' attorneys general, including Massachusetts Attorney General Maura Healey, are investigating whether Exxon Mobil misled the public in its climate change communications. (17) Shareholders of Exxon Mobil have filed a securities fraud class action against the corporation. (18) As part of their case, shareholders allege that "[f]or many years, despite the overwhelming evidence known to Exxon management--and communicated from Exxon's own scientists--the Company did not disclose what they knew to investors in public filings, nor did they tell investors that climate change risks were already impacting Exxon's business decisions." (19) Their essential claim is that Exxon's material misrepresentation of how climate change and climate policy would affect its assets led to the artificial inflation of the company's stock prices. (20) Without commenting on the legality of Exxon Mobil's actions, Geoffrey Supran and Naomi Oreskes concluded that Exxon Mobil did mislead the public about climate change science after conducting an empirical review of the company's internal and external communications between 1977 and 2014. (21) They reached this conclusion after finding that Exxon Mobil expressed significantly more doubt about climate science in documents meant for broad public consumptions than it did in internal documents. (22) For example, in 1982, Exxon acknowledged in an internal document that "there are some potentially catastrophic events that must be considered. For example, if the Antarctic ice sheet[,] which is anchored on land should melt, then this could cause a rise in sea level on the order of 5 meters." (23) While in 2000, Exxon's advertising editorial spoke about climate change in the following terms: "[j]ust as changeable as your local weather forecast, views on the climate change debate range from seeing the issue as serious or trivial, and from seeing the possible future impacts as harmful or beneficial." (24)

   In sum, the CCCM has systematically influenced public opinion and climate policy over decades, through both legal and potentially illegal means. The CCCM has been exceptionally well-financed in its mission of preventing regulation of greenhouse gas emissions. (25) This has undoubtedly narrowed the ability of the U.S. public to both understand the science of climate change and to influence public opinion and climate policy. At the same time, individuals engaging in environmental and climate protests have faced violence and harassment. (26) State governments have moved to crack down on peaceful protests. (27)

3. A CRACKDOWN ON CLIMATE PROTESTERS

   In March 2017, the U.N. Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression and the U.N. Special Rapporteur on the rights to freedom of peaceful assembly and of association sent a letter to the U.S. government warning about a trend of state legislation criminalizing peaceful protest. (28) The letter identified proposed bills from sixteen U.S. states that "would severely infringe upon the exercise of the rights to freedom of expression and freedom of peaceful assembly in ways that are incompatible with U.S. obligations under international human rights law." (29) All of the bills were proposed by Republican legislators. (30) The Special Rapporteurs were especially concerned that several of the bills were specifically aimed at environmental protesters. (31) The letter highlights Florida Senate Bill No. 1096, which "provides that 'a motor vehicle operator who...