Anarchist anthropologist David Graeber has defined direct action as “the defiant insistence on acting as if one is already free.”

By the same token, the people chaining themselves to pipelines, turning off pipeline valves, and blockading tankers from bridges are defiantly refusing to accept a wrecked climate as a foregone conclusion, insisting on living as part of the history of a future world where the transition away from fossil fuels happens in time.

As these actions are met with arrests and trials, there is too often a stark incongruity between the kind of moral reasoning motivating these actions and the far more narrow considerations courts are accepting as valid defences for them.

Illegal to fight the end of the world

For example, in the North Dakota trial of an activist who turned off the valve to a TransCanada tar-sands pipeline, the judge barred precisely the kinds of defences that justify the actions. This included blocking expert testimony on the severity of the crisis and denying the use of what’s called the “necessity defence,” which argues that the threat of climate change is now so grave and governments are failing so thoroughly that extra-legal actions actually have to be taken. The defendant was sentenced this February to three years in prison.

Or take the recent B.C. cases putting people on trial for violating a court injunction that forbids the obstruction of work on the Transmountain Pipeline expansion. Rulings depend on a narrow factual consideration: whether defendants were in places the court ordered them not to be. Whatever reasons they might have had — climate change or Indigenous rights — are thereby made irrelevant, and a morally complex matter is turned into a too-simple question about court authority. (This is why those violating the injunction have been charged with contempt of court.) With one notable exception, attempts by defendants to leverage the proceedings to at least make public statements about their reasons for taking direct action have been denied.

Sometimes the court can act as a simplistically programmed machine, unable to distinguish by anything other than degrees of severity between morally compelled violations of law and brutal, nihilistic murder.

Consider, for instance, a Quebec judge’s words in a December 2017 ruling comparing the mindset of two activists who cuffed themselves to a pipeline with that of terrorists. The judge said in French, “There is no cause good enough to commit illegal acts. You were convinced that it was correct. However, the terrorists who placed bombs during the Boston Marathon or the Bataclan shooters were convinced that they were doing the right thing, but that was not the case.”

This is of course to say nothing of how courts have treated resistance against the fossil fuel industry waged in an anti-colonial context. It was Native American water protectors opposing the construction of the Dakota Access Pipeline who alone were targeted by the harsh federal courts.

One danger if this persists is that the primary effect of the courts will be to chill the politics required to preserve a habitable planet. Guilty verdicts, even lightly punished, risk legitimizing in the popular imagination an image of climate activists as wayward peace disturbers misguided about the severity of the crisis: how bad could it really be if judges are unswayed by their defence?

There are some signs of change, at least in the U.S., where efforts to tie the necessity defence to the Constitution are underway, and they will be important to watch. But as several U.S. states attempt to pass legislation that would criminalize pipeline protests, there remains much to be concerned about.

Suing governments and corporations

The other major arena where climate and law are colliding is in court cases against governments and corporations for the harms done through their commitments to preserving the fossil fuel economy.

In 2015, Dutch citizens successfully sued their government (Urgenda Foundation v. Kingdom of the Netherlands), winning a court ruling requiring the country to significantly improve its emissions reduction target. It heralded a wave of lawsuits that has seen U.S. states and cities suing fossil fuel companies for damages; New York and Massachusetts state attorneys general investigating Exxon for funding efforts to spread climate denial despite knowing about climate change; and even citizens suing the EU.

In Canada, prominent court cases include the constitutional challenge of the Beaver Lake Cree against the governments of Canada and Alberta for overdeveloping the tar sands and a challenge by several First Nations arguing that the government failed to consult them about the Trans Mountain expansion project.

But perhaps the biggest of these kinds of lawsuits is Julianna v. United States, a case where children are suing their own federal government in the hopes of having much of a future. Originally scheduled to begin in February of this year, the Trump administration’s attempts to have the trial dismissed have delayed proceedings until this October.

Like the activist trials, a lot of these cases have been hit with setbacks and uncertainty. This year alone
,

• Oakland and San Francisco and New York had lawsuits to make the oil industry pay the cities’ climate adaptation costs dismissed;
• In Washington state, a youth climate lawsuit was similarly dismissed; and
• Efforts in Norway and in the U.K. to use courts to make governments act in accordance with their emission reduction goals pledged under the Paris climate agreement failed.

The future might hold still worse. The government of the Netherlands is currently appealing that landmark 2015 court ruling. Julianna v. United States might not survive a challenge in the U.S. Supreme Court now that President Trump has nominated Brett Kavanaugh to it, a man with a history of siding with corporate polluters and generally making morally repugnant decisions.

Climate checks and balances

If you clicked on some of those links above, you might have noticed how one of the recurring arguments that courts have put forward for dismissing cases is that climate policy is an issue for executive and legislative — and not judicial — branches of government.

In the abstract, this is true. Functioning democracies should be bringing together the various and complex moral concerns about climate change and enacting just and effective solutions to them.

But we don’t live in functioning democracies.

That’s why we’re seeing the fight for a habitable climate having to turn to the courts; there is a faint hope that they might provide a check on the degree to which the executive and legislative branches can continue to fail on climate action. But for the courts to then direct that fight right back to the broken system it left is to keep it stranded between Scylla and Charybdis, between the expanding desert and the rising seas.

On a deep level, courts do not yet recognize the special urgency of climate change and the unique magnitude of lethality it threatens. It’s therefore worth remembering that the judiciary is part of the larger society. If a persistent enough social movement changes that society into one unwilling to any longer tolerate climate change, the courts might actually come to play an effective role in the fight against it.