October 22, 2014
We all know that people need law – that if we all drove on whatever side of the road we wanted or harmed others with impunity whenever we got angry life would be nasty, brutish, and short. But we also know there are times when the law is unjust and wrong. Few today would defend the Indian Removal Act or the segregation laws that banned African Americans from using whites-only schools and drinking fountains. And we know that some who have refused to obey established laws, from the Boston Tea Party to Dr. Martin Luther King, Jr., have later been hailed as national heroes. The members of an Atoka County jury will soon have an opportunity to weigh in on whether an alleged lawbreaker is really a criminal or instead a hero sacrificing for the good of all.
On April 22, 2013, Alec Johnson, 61, locked himself to an excavator on a Keystone XL pipeline route in Tushka, Oklahoma, temporarily blocking construction. He was arrested and is scheduled to be tried in the Atoka county courthouse on October 23. He does not contest the accusation that he entered the site and blocked construction. But he does maintain that he did so to forestall a far greater harm.
Alec Johnson’s “crime” was intended to protest something that threatens the basic well-being of all of us – the laws and policies that allow corporations to pour carbon and other “greenhouse gases” into our atmosphere, disrupting the earth’s climate and causing intensified floods, droughts, hurricanes, wildfires, and other unnatural disasters.
These effects of climate change are happening all over the world – including in Oklahoma. According to the official Oklahoma Climatological Survey, climate change will mean “more heat waves and extremes,” “increased drought frequency/intensity,” “increased cooling costs,” “increased wildfire risks,” and “increased risk of flooding,” among other effects in Oklahoma. [http://www.ok.gov/conservation/documents/climate-statement-ocs.pdf ]
Alec Johnson argues that governments have a constitutional responsibility to protect the basic natural resources on which our present and future life depend – including the atmosphere and the stability of the earth’s climate. Such resources compose what is known legally as a “public trust” which governments have a profound constitutional duty to protect, not only for the present generation but also for our posterity.
He argues that protests like his are necessary because governments are failing to protect the common rights of the people – in fact, they are colluding with companies like those building the Keystone XL pipeline to increase emissions of the very greenhouse gases that are destroying our climate.
“When it comes to our commons, to our public property, we the people have rights in a Public Trust.” Public trust doctrine “assures us that we have rights when it comes to how our public commons are administered by any trustees placed in charge of it.” So he and other citizens are demanding that our environmental institutions and agencies “recognize their responsibilities as trustees and exercise their fiduciary responsibility to act with ‘the highest duty of care,’ to ensure the sustained resource abundance necessary for society’s endurance.”
Johnson says Keystone XL pipeline itself is “proof that our trustees have failed in their fiduciary duty to ‘We the People.'” The presence of any of this pipeline in the ground “incontestably proves that the states of Oklahoma and Texas have failed” And that the US government has failed to discharge “the highest duty of care,” on behalf of this and future generations. [https://www.facebook.com/PostCarbon/posts/10152530065808369.]
Some Oklahomans may share Johnson’s concern about climate change, but also think about the desperate need for jobs in its economically depressed areas. They are right to do so, but there are far better ways provide good jobs. A study I co-authored recently found that in Oklahoma and the other four states in the Keystone XL corridor, meeting unmet gas and water infrastructure needs would produce five times more jobs, and better jobs, than the XLpipeline. [ http://www.labor4sustainability.org/files/__kxl_main3_11052013.pdf]
American law allows a “necessity defense” when someone commits what would normally be a crime in order to prevent something far worse. Hopefully nobody gets thrown in jail for crossing a highway dividing line to avoid running over a child who has suddenly run out on the road. Judges and juries have sometimes accepted such a defense when people have committed civil disobedience to protest an unjust or oppressive law or policy, such as wars that protestors believed violated national or international law.
When two protesters used a lobster boat to block a freighter delivering coal to a Massachusetts power plant, they like Alec Johnson were charged with a crime. But as they were preparing for trial last month the District Attorney appeared in front of the courthouse and told the media that the protestors were “looking for a forum to present their very compelling case about climate change.” He added, “I do believe they’re right, that we’re at a crisis point with climate change.” He thereupon dramatically announced that he was dropping the charges.
In an appeal for support, Alec Johnson wrote, “Enforcing our children’s rights to climate justice is no crime.” [https://climatehawk.wufoo.com/forms/stand-with-climate-hawk-alec-johnson/] An Atoka county jury has the opportunity to make history by deciding he is right.