The invocation of necessity as a defence for acts of civil disobedience has raised questions about the rule of law and legal certainty. The rise of radical environmental activism in the context of climate change warrants an inquiry into the scope and limitations of the defence in Canada. This paper argues that the defence of necessity significantly increases legal flexibility in Canadian environmental law. To some extent, the defence may thus enhance the law's resilience to socio-ecological changes. However, the defence could also render the law flexible to such an extent that positive norms might lose their prescriptive value in certain circumstances. In particular, as the link connecting human activity, climate change, and consequent damage to the environment becomes clearer, there is a greater likelihood of environmental activists successfully invoking necessity to defend illegal acts aimed at curbing environmental degradation. In other words, necessity may offer a defence against the enforcement of legal frameworks de facto authorizing catastrophic environmental destruction. The prescriptive value of those legal frameworks could be critically diminished, and the resilience of the law as a normative framework may be threatened.
L'invocation de la necessite comme defense excusant des actes de desobeissance civile souleve des questions portant sur la primaute du droit et la securite juridique. L'emergence de l'activisme environnemental radical dans un contexte de rechauffement planetaire justifie de s'interroger quant a la portee et aux limites de la defense de necessite au Canada. Cet article argumente que la defense accroit significativement la flexibilite du droit canadien en matiere de gestion des ressources naturelles et de protection de l'environnement. La resilience du droit face aux changements socio-ecologiques en esta priori renforcee. Touiefois, la defense peut aussi rendre la loi flexible a un point tel que des regles contraignantes perdent leur valeur normative dans certaines circonstances. Ainsi, la demonstration d'un lien entre l'activite humaine, les changements climatiques et les dommages qui en decoulent peut augmenter les chances d'invoquer la necessite avec succes pour defendre des actes illegaux qui visent a empecher la degradation de Penvironnement. En d'autres termes, la necessite pourrait offrir une defense permettant de contrer l'application de cadres legaux qui autorisent de facto la destruetion catastrophique de l'environnement. Si tel etait le tas, la valeur normative du droit de l'environnement serait fortement reduite, et sa resilience comme cadre normatif serait menacee.
Introduction I. Contextualizing Necessity A. Philosophical Origins B. International Advances C. Canadian Lineage II. Increasing Legal Flexibility A. The Definition of Necessity B. The Application of Necessity III. Dissolving the Law's Normativity A. Necessity and Environmental Crisis B. Necessity and Environmental Activism Conclusion No system of positive law can recognize any principle which would entitle a person to violate the law because on his view the law conflicted with some higher social value. (1)
Civil disobedience has an honourable history, and when the urgency and moral clarity cross a certain threshold, then I think that civil disobedience is quite understandable, and it has a role to play. (2)
Consider this: Next year, the Intergovernmental Panel on Climate Change (IPCC) releases a new assessment report. The report, reflecting the work of thousands of scientists from all over the world, confirms that humanity causes global warming. It also considers "virtually certain" the probability that business-as-usual trends in anthropogenic greenhouse-gas (GHG) emissions over the following two years will increase the average global temperature by at least 6[degrees]C. (3) After two years, abrupt and irreversible changes in the global climate will become unavoidable over the medium or long term. Ecological processes will cross various thresholds, thereby triggering feedback loops, runaway global warming, and tip the planetary ecosystem into a new, fundamentally different state. On the publication of the report, civil unrest erupts in various countries. International leaders meet but fail to agree on a common action plan amid growing international tensions. In Canada, public demonstrations organized by environmental groups take place in major cities. A small number of organizations, dubbed "eco-terrorists" by the mainstream media, adopt civil-disobedience tactics to take direct action against GHG sources. (4) One of these groups decides to wage a campaign of vandalism to immobilize motor vehicles based on the fact that the transport sector is a major source of GHG. (5) The police arrest a number of activists suspected of systematically puncturing car tires, obstructing exhaust systems, and adding sugar to gasoline in fuel tanks. At trial, the activists raise the defence of necessity. The activists plead that concern about global warming is the only motive for their actions. Invoking the IPCC report, they argue that continued GHG emissions constitute an imminent peril to humanity's survival, that immediate action against GHG emissions is an absolute imperative, and that the damage they caused is minute compared to the harm that they are attempting to avert. Should the court convict or acquit the activists? (6)
This apocalyptic scenario could be worthy of a science-fiction movie. It is also not far from the current reality of global warming, according to some reports. (7) In 2007, the IPCC Fourth Assessment Report examined a range of scenarios and concluded that they would lead to an increase in global mean temperatures between 1.6[degrees]C and 6.9[degrees]C by the end of the twenty-first century. (8) However, actual anthropogenic GHG emissions exceed even the highest IPCC forecasts. (9) More recent climate projections show that the IPCC's scenarios are very optimistic; they establish a median probable surface warming of 5.3[degrees]C by 2100, with a 90 per cent confidence interval of 3.5[degrees]C to 7.4[degrees]C. (10) A rise of 5[degrees]C or more in the average global temperature could lead to a nightmare scenario, with possible consequences such as these:
Most of the tropics, sub-tropics and even lower mid-latitudes are too hot to be inhabitable. The sea level rise is now sufficiently rapid that coastal cities across the world are largely abandoned. Above 6[[degrees]]C, there would be a danger of "runaway warming", perhaps spurred by release of oceanic methane hydrates. Could the surface of the Earth become like Venus, entirely uninhabitable? Human population would be drastically reduced. (11) Some prominent scientists argue that disaster in the near future may already be unavoidable, with billions to starve and ecosystems to collapse. (12) The global system is already irreversibly headed for ocean warming and acidification, massive biodiversity reduction, destruction of local ecosystems, and increasingly frequent and severe extreme weather events. (13) Estimates suggest that global warming already causes 350,000 deaths per year, a figure that will rise to one million by 2030 if decisive action is not taken. (14) Plans prepared by armed forces posit that the catastrophic consequences of climate change will require "full scale stability operations." (15) Yet governments around the world appear to have abandoned efforts to achieve an international treaty to curb GHG emissions. (16)
Whatever the anticipated effects of climate change, the question raised by the fictive scenario about the use of the defence of necessity is not purely hypothetical. On the contrary, it reflects issues that have already appeared before the courts. Firstly, civil-disobedience movements spurred by the perceived threat of irreversible tipping points and catastrophic environmental changes have already materialized in some countries. (17)
Secondly, environmental activists engaged in civil-disobedience campaigns and faced with criminal charges have invoked the defence of necessity.
In England, three cases have recently attracted attention. In 2008, six. Greenpeace activists who had attempted to shut down a coal-fired power station by climbing its chimney were cleared of criminal charges, as it was held that they were trying to prevent climate change from causing greater property damage, is In 2009, a court rejected the defence of necessity raised by twenty-two activists who hijacked a coal train to stop emissions from another power station in order to fend off imminent devastation due to global warming. (19) In 2010, an interlocutory judgement confirmed the availability of the defence of necessity to twenty activists charged for conspiracy to occupy and shut down yet another coal-fired power plant. (20)
Environmental activists in the United States have also pleaded the defence. (21) In 2009, an activist placed winning bids for oil and gas exploitation leases on federal lands at an auction in order to protest against global warming. (22) The activist faced criminal charges for interfering with the auction and making false statements on bidding forms. (23) The court rejected his defence based on necessity and sentenced him to two years in prison. (24) This case could be portrayed as a case of political imprisonment, since no adverse consequences resulted from the activist's actions. (25)
The invocation of necessity by environmental activists is not theoretical in Canada either. The defence was raised in British Columbia by protesters who hindered logging operations in order to protect unique forest ecosystems and in Quebec by protesters who obstructed the opening of a plant that would emit highly carcinogenic organic pollutants. (26) Necessity is also relevant in the context of the national drive for greater fossil-fuel extraction despite public opposition and accumulating evidence of global warming due to GHG emissions. For...