In Support of the Climate Necessity Defense

One year ago, in January 2018, three citizens locked themselves to the front entrance of a downtown Wells Fargo bank branch in the city where I live and work, Duluth, MN. The protesters prevented business from being conducted at the branch for three hours. The reason for their actions were simple and well-articulated: they were protesting Wells Fargo Bank’s financing of Enbridge Corporation Line 3, an oil pipeline that runs 1,097 miles from the tar sands of Edmonton, Alberta, to the Enbridge oil storage facility that sits about a mile from the south shore of Lake Superior, just a few miles away from the site of the protest. Environmentalists have deep concerns about the climate impacts of the tar sands, as well as the threat the pipeline poses to local waterways and Indigenous land rights. The police eventually came to the branch to remove the locks and arrested the protesters. All three were charged with misdemeanor trespass, disorderly conduct, and obstruction of justice.

While these charges were not unusual for the actions taken, the protesters’ use of the climate necessity defense to justify their actions certainly was.

What is the Climate Necessity Defense?
In recent years, a growing number of activists have used the principles of nonviolent civil disobedience in direct action to protest major climate polluters and their financial backers. According to the Climate Disobedience Center, a group that provides legal, logistical, and spiritual support to climate activists who engage in civil disobedience across the United States:

Instead of seeking a plea agreement or trying to win an acquittal, defendants offering the climate necessity defense admit their criminal conduct but argue that it was necessary to avoid a greater harm. The basic idea behind the defense…is that the impacts of climate change are so serious that breaking the law is necessary to avert them.

In the Duluth climate defense trial, local defense attorneys J.T. Haines and Jennifer McEwen called three expert witnesses in the case––Dr. Christina Gallup, a professor of Geological Sciences at the University of Minnesota, Duluth; Tara Houska, National Campaigns Director at Honor the Earth; and, myself, a financial adviser at Natural Investments. Dr. Gallup testified about the anticipated local impacts of climate change. “It is likely that the boreal forest, which is our forest that includes spruce, and aspen, and other northern trees––that those would retreat to Canada…the boreal forest will not be in Minnesota anymore. If we just do nothing, it’s very likely that what it will be replaced by is bushes and scrub.” Dr. Gallup concluded her testimony by emphasizing the urgency of the conclusions drawn by climate scientists in the recent UN Intergovernmental Panel on Climate Change (IPCC) report.

Houska testified about how the defendants’ actions were connected to Wells Fargo. “Enbridge has a huge credit facility with Wells Fargo,” she stated. “Enbridge is literally running off corporate credit, so its nine-to-five operations are funded by credit cards––and so targeting those financiers has become incredibly important.”

My testimony focused on the direct links between investors, Wells Fargo, Enbridge, and climate change. “Citizen campaigns have encouraged the public to divest their deposit accounts from Wells Fargo to the tune of almost $4 billion over the last couple years. That gets the attention of investors like me who are trying to make decisions about the long-term performance of a company. Increasingly, socially responsible mutual funds and investment firms are actively avoiding fossil fuel companies, as well as their financing partners, due to their association with climate-change risks, as well as reputational risk and Indigenous rights risks associated with these projects.”

The three defendants testified about other tactics they had taken previously to stop the pipeline. “I’ve done all sorts of the traditional routes,” said Bol. “I’ve even done leadership in a traditional two-party system—and yet it’s not stopping business as usual.”

The Verdict
In his order, Court Referee John Schulte ruled against the protestors, stating that they “failed to prove that there was ‘no legal alternative to breaking the law,’” even though protestor Ernesto Burbank testified that he had previously attempted to take action through legal means, including electoral politics.

“The Court agrees with the City of Duluth that there are simply too many degrees of separation in this case between the unlawful act and the harm to be prevented.”

Yet, what was most noteworthy about Shultz’s decision is that he both agreed with the climate science and supported the protestors’ tactics: “They should keep up the fight. There is a long tradition in this world of honorable and appropriate civil disobedience. This case is a perfect example.”

SRI Toolbox Is Expanding
As socially responsible investors, we care deeply about climate change, water quality, and indigenous rights, and we thoroughly research how corporate behavior impacts these areas. All of our investment strategies have significantly lower carbon exposure than conventional portfolios, and many completely exclude companies involved in fossil fuel exploration, extraction, production, refining, and distribution, as well as utilities that use fossil fuels for energy production. At the same time, we acknowledge that many of the corporations in our investment portfolios need improvement in this area, so we engage these companies in shareholder dialogue about improving their environmental, social, and corporate governance, policies, and procedures.

While testifying in local trials is not part of traditional SRI strategy, this trial provided a venue to advance the understanding that there are socially responsible investors around the country that are actively working to reduce the carbon footprint of their investment portfolios, expand the positive impact they are having in their local communities, and pressure corporations to do better.

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