The Slippery Slope of the Necessity Defense

The latest craze among environmental extremists is to destroy or shut down pipelines and other critical energy infrastructure, videotape their felonious acts, and then wait for the authorities to show up and arrest them.

Source: San Diego Union Tribune

Source: San Diego Union Tribune

This game of “cat and cooperative mouse” is part of a larger strategy to manipulate the judicial process to advance their extreme political agendas. The goal is to find a judge who will grant the activists the right to use the “necessity defense” at their trials which, the activists say, “would have the effect of putting energy policy on trial—reversing, in effect, who was the defendant, and who was the prosecutor.”

The necessity defense is a unique strategy that involves admitting guilt but arguing that the defendant simply had no alternative but to do something illegal to prevent serious harm, like breaking into a burning house to save a baby. And to date, it has proved to be an elusive prey for climate extremists.

With just two exceptions, every activist who committed crimes in pursuit of the necessity defense was denied the opportunity and quickly convicted by juries of their peers. And of the two cases that did allow it, one was dropped and the jury in the other case was ultimately instructed they could not acquit on necessity. 

But that dry spell might be coming to an end.

A judge in Minnesota recently ruled that Emily Johnston—the co-founder of who is facing two felony counts for her role in shutting down the Enbridge pipeline in Minnesota in 2016—could use the necessity defense in her trial.

Johnston is one of five “valve turners,” a band of aging activists who launched a coordinated effort to temporarily stop the flow of oil from Canada into the U.S. by breaking into the pipeline valve stations in four different states and closing emergency shut-off valves. Four of her five co-conspirators were prohibited from using the necessity defense and were convicted of multiple felonies.

The “Keep It in the Ground” activist network cheered the judge’s decision to allow the necessity defense in Johnston’s case as “groundbreaking” and “precedent-setting.” And even before Johnston’s trial has begun, environmental extremists are debating just how far they can stretch the necessity defense through violent actions before it breaks.

Less than a month after the valve turners committed their crimes, Ruby Montoya and Jessica Reznicek set fire to heavy machinery and used acetylene torches to cut through sections of the Dakota Access pipeline throughout Iowa. While publicly claiming responsibility for the sabotage, Montoya said, "Our conclusion is that the system is broken and it is up to us as individuals to take peaceful action and remedy it, and this we did, out of necessity."

“The government is creating an atmosphere of frustration and anger that could indeed lead to [more destructive] attacks,” says convicted felon and co-founder of Greenpeace, Paul Watson. “It's almost inevitable the way this is going.”

Activist Tim DeChristopher—who tried (unsuccessfully) to use the necessity defense for disrupting a government auction and spent 21 months in prison—said, “I doubt that right now something like blowing up a refinery would resonate with the public. If people thought, ‘No one is going to understand this even if we’re allowed to use the necessity defense’ then it might be good to reconsider their actions.”

Source: San Diego Union Tribun

But, he warned, “We know there's going to be more sabotage in the climate movement … If people continue to dismiss this existential threat to our civilization, we will continue to see escalating chaos to our society. There's no doubt about that.”

And that is the inherent flaw in granting the necessity defense to extreme activists who publicly vow to ignore the rule of law and “act in accordance with higher laws,” as Johnston wrote. Once activists decide their political agenda supersedes law and order, their capacity for violence and destruction is only limited by their imaginations.