A jury in Washington state is hearing evidence on whether the threat of climate change is a justifiable defense for criminal acts, the first time such a defense has been allowed in an American court.

On Thursday, in a tiny municipal courtroom amid the strip malls and ranch houses of this suburban community north of Seattle, defense attorneys for five climate activists will call the final witnesses in their “Hail Mary pass” that has set up a historic legal showdown.



The five activists – Michael LaPointe, Patrick Mazza, Jackie Minchew, Elizabeth Spoerri and Abigail Brockway – face misdemeanor charges of criminal trespass and obstructing a train for a September 2014 protest. The group erected an 18ft metal tripod over railway tracks in Everett, Washington, in order to block train shipments of crude oil and coal.



The defendants – who have been dubbed the “Delta Five” by their supporters – admit they knowingly broke the law in stopping the train. Their unique legal argument, known as a “necessity defense”, is that their actions were a moral imperative because not breaking the law would result in catastrophic harm to the planet.



Though the necessity defense was used successfully by climate change activists in England in 2008, it has yet to be allowed and tested in a trial in the United States.

That changed last Thursday when Snohomish County judge Anthony E Howard reversed his own ruling to permit the activists’ lawyers to present the necessity defense after hearing oral arguments from MJ McCallum and Evelyn Chuang.

Arguing for the necessity defense was a “Hail Mary pass”, said McCallum, and one that, improbably, met its mark.

Whether the jury is allowed to consider that evidence in their deliberations remains uncertain. After the defense testimony concludes on Thursday, the judge will determine how to instruct the jury. It’s then that he will decide whether he’s heard a strong enough case to allow the six-member jury to take the threat of climate change into account in rendering their verdict.





Outside the courtroom on Wednesday, sheriff’s deputies pushed through the narrow corridor, escorting handcuffed men in variations on the Pacific north-west uniform of jeans, flannel, and rain gear, past the crowd of supporters, journalists, and documentary film-makers jockeying for seats inside.



Inside the courtroom, the counsel table in Judge Howard’s six-sided courtroom was excessively crowded with five defendants, four defense attorneys, and prosecutor Adam Sturdivant, who was pushed to the far left end with little space to rest his yellow legal pad and copies of the 2016 Washington Court Rules and Courtroom Handbook on Washington Evidence.

It’s an apt metaphor for the trial itself, in which the everyday machinery of the municipal criminal justice system has been shoved aside for loftier arguments about justice and democracy.

Having opened the door to testimony from climate scientists, Judge Howard also appeared inclined to allow expansive testimony from the defendants. He has permitted each defendant to testify to their personal history as activists, mapping their development from idealistic voters to frustrated believers in the necessity of civil disobedience.

“It felt like projects were being rubber-stamped no matter what we did,” Brockway said of her years spent writing letters to officials and testifying at hearings on environmental issues. “Before I switched to direct action, I felt I worked within the system as much as I could.”

That the defendants exhausted all the legal means of political persuasion available to US citizens in order to achieve their goals is a key factor of the necessity defense, McCallum explained. The defendants must show that they reasonably believed their actions were necessary, that the harm they sought to prevent was greater than the harm of breaking the law, that they didn’t create the laws they broke, and that they had no reasonable legal alternative.

By eliciting testimony that the activists had no reasonable legal alternative to prevent the catastrophic effects of climate change, the defense team is building a depressing but compelling argument against the efficacy of American democracy and government.

“The reality of climate urgency will force judges and juries to rethink what is ‘reasonable’, because the process of law is so slow,” said Mary Wood, a professor of environmental law at the University of Oregon. “As scientists urge immediate action to slash carbon emissions, many drawn-out political and legal processes that may have been ‘reasonable’ to pursue two decades ago now extend beyond the short window of time left available to act.”

In the face of these lofty arguments, the prosecutor was stuck on the defensive. In the cross examination, Sturdivant (who declined to speak with the Guardian) asked Gammon whether there was any scientific evidence that illegal protest was more effective than legal protest and asked Brockway whether her arrest had succeeded in drawing a response from Washington’s governor, Jay Inslee. Both Gammon and Brockway answered no.



As for Millar, who testified at length to the threat of trains carrying crude oil that are “too long, too heavy, and going too fast”, Sturdivant had no questions at all.

Tim DeChristopher, a 34-year-old climate activist and the closest thing the Snohomish County south district court has had to a celebrity this week, views this trial as “the culmination of seven years of his life”. When DeChristopher enters into a conversation, other activists drift in his direction, just to listen to what he is saying.



Standing outside the court room during a lunch recess, DeChristopher recalls reading about the successful necessity defense in England. In 2008, a jury acquitted six Greenpeace protesters who argued their occupation and damage to a Kingsnorth coal-fired power station in Kent was justified by the threat of climate change.

Inspired by that case, DeChristopher decided to test his own luck. In December 2008, he infiltrated a Bureau of Land Management auction, bidding on and winning the right to drill on land with no intention of following through with the $1.8m payment. But a judge refused to allow DeChristopher to mount a necessity defense. He was found guilty of defrauding the government in 2011 and eventually served 21 months in jail.

In 2013, DeChristopher helped organize another protest designed to test the necessity defense – this time with two activists using their lobster boat to block the delivery of coal to a New England power plant. The judge in the case decided to allow the defense, but at the last minute, the prosecutor decided to drop the charges, stating that he agreed with the defendants and could not argue against the urgency of climate change.

DeChristopher says that the Delta Five train protest was designed to bring about a trial such as this one, and he hopes the third time is the charm. He compares the climate movement’s legal strategy to the civil rights and women’s suffrage movements.

“The legal structure was not designed to address the rights of those people,” he says, until it was forced to change through acts of civil disobedience. “I believe we’re in the same situation. Our legal system was not designed to protect the rights of future generations.”