Two Men and a Lobster Boat

Using the necessity defense, activists put climate change on trial.

Ken Ward and Jay O'Hara wished to live deliberately. On May 15th, 2013, they positioned their lobster boat, the Henry David T., off the dock of the Brayton Point power plant in Somerset, Massachusetts. Then, they heaved a 200-pound anchor over her side and waited.

"I was in the right place at the right time doing the right thing," O'Hara says. The feeling of serenity did not last. "I was sitting on the transom of the boat and heard the bolt action of the rifle," O'Hara continues. A Somerset police officer had trained his weapon on them from the pier.

The Henry David T. was soon boarded by the U.S. Coast Guard. Threatened with fines of $40,000 per day, O'Hara and Ward agreed to return to land, where they were arrested.

Ward and O'Hara, both long-time climate activists, were using their stalled boat to block a delivery of 40,000 tons of coal. Brayton Point is the greatest source of coal emissions in the Northeast—even though it's supposed to close in 2017, its owners have more than doubled the amount of coal it burns. Ward and O'Hara had already demanded the plant close in their "Coal is Stupid" manifesto, but the plant's owners had not responded.

The men decided they had to act—or in their case, stall.

They were charged with disturbing the peace, conspiracy, failure to act to avoid a collision, and negligent operation of a motor vessel. The activists faced up to five years in prison. But the men were prepared to wage another battle—this time, a legal one with the potential to help smooth the way for more climate activists. They intended to argue the necessity defense.

The necessity defense posits that a defendant's illegal behavior is justified when it avoids greater harm than that caused by breaking the law. A classic example is that of the lost hiker who, in danger of starvation, breaks into a cabin to steal food. In this case, the activists argued that their illegal action of blocking the delivery was justified by the greater harm burning the coal would cause—namely, climate change.

"We need people to come around to seeing climate change for the existential threat that it is," O'Hara says.

This defense has saved environmental protesters fighting hazardous waste incineration in the U.S., and it had worked in one climate case in the U.K., too. But this would be the first time an American court would determine if the threat of climate change was enough to warrant illegal action. Expert witnesses included climate activist Bill McKibben and former NASA climatologist James Hansen, both of whom had participated in the successful U.K. case.

"As the evidence of our climatic danger continues to grow, this kind of defense becomes more and more plausible," McKibben says.

The activists knew they faced an uphill climb. While President Barack Obama has pledged to reduce the country's greenhouse gas emissions, one in four Americans don't believe in global warming. Many members of Congress continue to deny the impending threat, causing climate change to be more of a partisan bickering tool than a motivator for action.

"We're trying to get climate outside of the normal politics, because that's failing," Ward says.

The legal battle didnt' start well. The prosecution objected to listing McKibben and Hansen as witnesses. But the Friday before the trial, the judge rejected the objection. This indicated that the court accepted that climate change experts were relevant. "The judge cleared the way to present a necessity defense in these kinds of circumstances, and that's quite powerful," says Ward


Unfortunately, neither witness ever got the chance to testify. On Sept. 8th, 2014, the day the trial was to start, the prosecution dropped the conspiracy charge and reduced the other charges to civil infractions. Ward and O'Hara would merely have to pay $2,000 apiece in restitution to the town of Somerset for the costs of arresting them.

Even with the bizarre turn of events, the activists are counting it as a win. Though they blocked only a single shipment of coal for one day, Ward and O'Hara hope their actions will have wider consequences by emboldening other people to engage in similar protests. They intend to start a Climate Disobedience Center, which will provide resources for people contemplating direct action protests. "There are people I've been talking with over the last week who are ready to be on the next boat," says O'Hara. "That's real change."

Another example of real change? After presiding over the case, Sutter went to New York City to participate in the People's Climate March. He said O'Hara and Ward had inspired him.