Break the law to make the law: Importance of protest for climate justice

Students across the world recently staged the Climate Strike, engaging in acts of protest and civil disobedience to demand action on climate change. Their proposals — keep all fossil fuels in the ground, swiftly transition to renewables and support those worst affected by warming — are appropriately dramatic given the scale of the climate crisis. But will adults listen and pass policies to implement these demands? Or will more people need to break the law before politicians are convinced to make new climate laws?

The energy generated by persistent acts of nonviolent civil disobedience has already shifted the debate, moving calls for radical reform of the social and economic underpinnings of global warming from the political wilderness into the mainstream.

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From the Standing Rock mobilization to ongoing direct action campaigns against fossil fuel infrastructure in LouisianaMinnesota and the Sunrise movement calling for a Green New Deal, protesters facing arrest have been shining a light on the growing costs of fossil fuels and their unequal impacts. And they’ve often been successful in their immediate goals: Protesters have stalled or stopped the Keystone XL PipelineShell drilling in the Arctic, oil and gas leasing in parts of Utah, along with a number of other fossil fuel projects.

This sustained activism has only grown over the past decade as Washington’s focus on climate change has waxed and waned. By targeting infrastructure development and the financial backing of the fossil fuel industry, direct action has also made clear that the transition away from fossil fuels is as much about economic control as it is about science.

Oil, gas and coal remain tremendously profitable, and those reaping the profits will do all in their power to maintain the status quo — whether that means denying that global warming is happening or acquiring the executive branch as a new arm of their operations. 

Keep in mind that the industry’s continued dominance is far from a model of market efficiency. In the U.S., it relies on enormous subsidies, the externalization of costs and protection by world’s largest military (worth at least $20.5 billion annually). This public support is an object lesson in how the rich shape policy to keep their money flowing.

In other words, climate activists understand that the post-carbon transition requires that we make fossil fuels unprofitable and that we assert public control over energy management. We also understand that to build the sort of public support needed to achieve these goals, we need to confront the powers that be, show that large industry not invincible and offer an alternative.

That’s the function of civil disobedience. Throughout American history — from Susan B. Anthony voting illegally to the Montgomery Bus Boycott — principled non-violent law-breakers have exposed the complicity of the government in exploitation and have modeled a better future with their bold actions.

In the climate justice movement, those arrested for protesting the Keystone XL pipeline shattered the idea that the oil industry would get whatever it asked for, and subsequent campaigns in New York and Oregon led to anti-gas state laws or regulatory decisions that would have been unimaginable just a few years earlier.

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But here’s the thing: We can’t take climate protest for granted. The fossil fuel industry has been ramping up its efforts to quell protest. In recent years, lawmakers in industry-controlled statehouses have proposed a number of “critical infrastructure” bills to clamp down on climate protest and increase the legal penalties for it. In Louisiana for example, pipeline protestors can now be charged with a felony and face up to five years in prison.

One of the best ways to protect the right to protest is robust legal defense. Challenging the prosecution of those engaged in civil disobedience — whether by asserting “justification defenses” like the climate necessity defense or by suing government officials for violating constitutional rights — is a way to ratify the righteousness of the activists’ conviction and to offer a powerful rebuke to the unholy alliance of business and state power.

Civil disobedience is necessary to clarify the stakes and scope of the climate justice struggle. Protest exposes exploitation, while legal action expands the scope of rights. We need both to win this fight.

Alice Cherry, Ted Hamilton and Kelsey Skaggs are co-founders and staff attorneys at the Climate Defense Project.