Two climate activists plan to use an unorthodox defense strategy when they go on trial for attempting to block coal shipments to the Brayton Point Coal Fired Power Plant in May 2013.

Two climate activists plan to use an unorthodox defense strategy when they go on trial for attempting to block coal shipments to the Brayton Point Coal Fired Power Plant in May 2013.



The tactic is called "climate necessity," claiming that the imminent threat of climate change justified the seven-hour long blockade, according to a press release sent by the Better Future Project, which has been working with activists Jay O'Hara, 31, and Ken Ward, 57, to publicize their actions.



As part of this strategy, the two will admit to participating in the blockade on their boat, the Henry David T., and bring expert witnesses such as climate scientist Dr. James Hansen to testify that the only way to stop climate change is to stop burning fossil fuels like coal.



"This is a case of civil disobedience," explained Tim DeChristopher, an environmental activist who raised $10,000 for the pair's legal defense on the website indiegogo.com. "The thought process used to be that when people took direct action, once you are arrested the activist work was over. We see this trial as an opportunity to further dramatize what is really going on with the climate."



Ward and O'Hara's trial is scheduled to begin on Monday in Fall River District Court. They are charged with disturbing the peace, conspiracy and motor vessel violations. If convicted they could spend nine months in jail.



Ward and O'Hara's lawyer, Matt Pawa, declined to comment on the case, saying it was too close to trial. Gregg Miliote, a spokesperson for the Bristol County District Attorney's Office, also said it would be inappropriate to comment on the case this close to trial.



SouthCoast environmental and legal experts say the "climate necessity defense," which does have a base in common law, is an interesting tactic that is unlikely to work.



A "necessity" defense can be used in either civil or criminal court. An example of the defense strategy in criminal court is when a victim of domestic abuse "snaps" and kills her abuser, said Chad McGuire, environmental policy professor at the University of Massachusetts Dartmouth.



"Technically, she's used excessive force because he wasn't going to kill her, but the idea is that if this is the 500th time she has been beaten, the beatings and their psychological effects can be taken cumulatively to show she had the necessity to defend herself," McGuire explained.



In civil court, necessity defenses often include the idea that a law was broken for the common good, said University of Massachusetts Law Professor Irene Scharf. For example, in 1853 the mayor of San Francisco won a lawsuit using the necessity defense after the city destroyed multiple homes in order to curtail a major fire.



Scharf said that is similar to the "climate necessity" defense because in both the illegal action is meant to benefit the public good. But, she said, there was a key difference: "In this case the blockade of one shipment into one coal plant is not going to have the desired effect of halting climate change."



For that reason, she said, she doubts the district court judge would even let O'Hara and Ward use the argument in their defense.



"This defense rarely works," she said.



Though McGuire said he thought the defense strategy was an interesting one, he said he did not think it would be effective either in court or for the larger goal of combatting climate change.



"Most likely the judge would not let them use it, but even if they are acquitted, it doesn't change policy. It doesn't stop the overall burning of coal in this country," he said. "I think they are just trying to get publicity."



But for DeChristopher, getting the acquittal isn't necessarily the point.



"Eventually the movement will have to win one of these cases, but for that to happen a lot of people will probably have to lose and go to jail, and the odds for Ken and Jay are not good," he said.



"But as more and more people in society become concerned about climate change and more people pay attention to the fact that the government is doing nothing to tackle the crisis, they can make their voices heard in society."



Follow Ariel Wittenberg on Twitter @awittenberg_SCT