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From Barricades to Courtrooms: The Fight Against a Fracked Gas Future in New York State

Activists are pushing the idea of “climate necessity” to end fracking.

Today, the Stop Competitive Power Ventures (CPV) campaign, the long-standing fight against fracked gas in New York State, is generating a lot of heat, from weekly local vigils and arrests at the state capitol, to political races for attorney general, state senate and governor. In November, Stop CPV defense attorney Michael Sussman will run for New York State attorney general on the Green Party ticket; defendant and key Stop CPV organizer Pramilla Malick is running as a Democrat for state senate in the 42nd district, and Cynthia Nixon, who has joined the CPV protest, will challenge the Governor, Andrew Cuomo, all contesting his administration and its greenwashed fracked gas energy plan.

A critical part of STOP CPV’s movement against the expansion of the state’s fracked gas infrastructure is a 2017 trial in which the defense argued a new project would not only be detrimental to the residents of New York, but the world at large.

On December 18, 2015, a group of six activists termed “the Wawayanda Six” blocked the entrance of the CPV power plant in Wawayanda, New York. During the action, three protesters placed interconnected bicycle locks around their necks, necessitating the use of a large bolt-cutter to separate them.

This action was the outgrowth of several years of opposition to the construction of the mammoth gas-fired electric generation plant and its associated pipeline that would supply New York with fracked gas from Pennsylvania shale wells. Opponents of the project cited its impacts on climate, environmental contamination and public health concerns as principal reasons to stop the project. Such opposition grew into the Stop CPV movement. Strategies to stop the plant’s construction and operation included lobbying, letter-writing, protesting, rallies and all conventional means of political citizen participation.

Having exhausted these conventional means, six residents stepped forward to exercise civil disobedience. This action led to the arrests, trial, sentencing and fines for all six people, as well as jail sentences for three defendants who refused to pay their fines. As reported by the Times Herald-Record, Wawayanda Six defense attorney Sussman said in his closing remarks that the fight against the use of fossil fuels and the associated impact on climate change was “the moral imperative” of our time.

The “Climate Necessity” Defense

Having chosen civil disobedience as a strategy, the Wawayanda Six worked to defend their actions using the “climate necessity” defense. The basis for the necessity defense — also known as a “competing harms,” “choice of evils” or the “justification” defense — is that the harms associated with climate change are so great that breaking the law is necessary to prevent them. In the case of the Wawayanda Six, the defense lawyer used the expert witness testimony of Cornell University environmental researchers Anthony Ingraffea and Robert Howarth to establish the link between the CPV gas-powered electric generation plant, fracking, greenhouse gas production and climate change.

Despite a challenge from the Orange County District Attorney’s Office, the judge in the case allowed the Wawayanda Six to present the climate necessity defense during trial. However, the court still found the defendants guilty of misdemeanors arising from their civil disobedience and fined them. In order to intensify media coverage and political pressure to stop CPV, three defendants chose to go to prison rather than pay their fines. By asking a judge or jury to find the defendants not guilty by reason of necessity, the defense could identify the social and environmental injustices involved in the case and argue that the law needs to protect the planet.

As outlined by the Climate Disobedience Center, to pursue the climate necessity legal route, the defense must provide evidence that the defendants faced an imminent danger, and one that is “near and certain”; that illicit protest could avert this danger; and that the necessity defense was legally available in this case.

Howarth’s Testimony

Sussman began questioning Howarth during the trial by asking if he had studied the impact of fossil-fuel-driven power plants with respect to climate change. Howarth confirmed that he had, and said that power plants like CPV, which burn fossil fuels, produce carbon emissions, the major driver of climate change. He added that in addition to carbon emissions, gas-fired plants also produce methane at every step of the gas infrastructure process, and methane is 105 times more powerful a greenhouse gas than carbon.

Next, Sussman moved to a broader question, asking if there was consensus among scientists regarding climate change. Howarth confirmed this, and noted the Earth is warming at the most rapid rate in its 4.2-billion-year history. He concluded that the prime drivers of this process were carbon and methane, and that there was no scientific debate about that.

Sussman then asked, “What would the CPV plant contribute to the magnitude of climate change?” Howarth replied that each new plant contributes to the process, but that since this plant would be the largest in New York State, it would be a substantial contributor.

In response to Sussman’s question regarding the outcomes of temperature increase and global warming, Howarth noted that since the industrial revolution, the Earth has warmed a total of 1.1 degrees Celsius. That rate is accelerating faster than expected, and the impact of change in weather patterns is evident: more severe floods, droughts and storms. He said a 2 degrees Celsius change within 25-28 years would be “catastrophic, irreversible and will persist for tens of thousands of years, with effects felt in the next 6-8 years — an imminent threat.”

When questioned about what he meant by irreversible and catastrophic, Howarth said, “Irreversible would mean reaching a fundamentally different way the Earth’s climate and oceans are functioning for the next 5,000-20,000 years.” He concluded his testimony explaining that the gas from the Pennsylvania Marcellus shale fields is extremely high in methane and has led to a dramatic increase in methane emissions from gas infrastructure, including power plants and wells.

Ingraffea’s Testimony

Sussman began his questioning of Ingraffea by asking for a definition of greenhouse gases. Ingraffea stated that gases which cause a greenhouse effect act as reflectors which drive climate change, and that such climate effects are anthropogenic, or human caused.

Sussman then asked explicitly about the relationship between CPV and fracking. Ingraffea replied there was a close and intimate relationship, as for CPV to operate and generate electricity, it had to have fuel, and that fuel came from pipelines from shale gas wells in the Marcellus shale region of Pennsylvania.

Ingraffea was asked to elaborate further on his research concerning the risks and dangers of the fracking process. He stated that the procedure, as applied to shale gas, involves the scaling up of all parts of the extraction process, including increased contamination of ground water and air; increased emissions of greenhouse gases; leakage along the entire life cycle of natural gas, from the well head to its end-use; and risk of explosion, among others. He then added that in between initial well head and end-use are communities of people, and that since the infrastructure was not contained in a building, but rather spread across the countryside, “any danger impacts would be immediately felt by the citizens.”

Sussman asked Ingraffea to outline the externalities associated with CPV, to which Ingraffea replied that this would result in the building of 100 to 150 wells in Pennsylvania, or 130 cubic billion feet of gas per day, every year, with 10 wells expected to leak on average. “Pennsylvania, West Virginia, Ohio people will live with local air pollution due to leaks,” Ingraffea said.

At this point, the prosecution objected, claiming that such wells in other places were not relevant to CPV, to which Sussman replied, laying out the necessity defense position:

“The necessity defense isn’t bounded by this block or that neighborhood. These individuals are animated by imminent danger, not only to themselves but to the planet which is caused by these technologies. The reason they have done what they have done is because of their appreciation for that, and in order to understand imminence and the impact, you have to hear the testimony. You have to understand it. Just shutting off a leak in a faucet isn’t going to solve the problem or allow us to present our case.”

The judge overruled the objection, and Ingraffea continued outlining upstream CPV externalities of air and water pollution, and the impact pollution associated with transportation would have on citizens living near gas wells. He added that downstream, there would be pollution associated with well beds.

Sussman then directed the questioning to the release of greenhouse gases and whether such gases were released in the extraction process. Ingraffea confirmed methane was released during extraction, and that this point was significant because the gas from Pennsylvania was high in methane content. He added that methane was released all along the infrastructure route and could have measurable impact on a state’s contribution to climate change. CPV itself would emit 2 million tons of carbon into the atmosphere yearly — 10 percent of all the carbon emissions from the electric sector in New York State. When combined with other emissions like methane, the plant would contribute 3.4 million tons of carbon per year.

Sussman asked Ingraffea if there was any consequence or imminence for bringing CPV online. Ingraffea replied,

“Yes. I can state that global temperature rise, as measured by the International Panel on Climate Change, and agreed to by more than 195 nations, that the rate of temperature increase is accelerating beyond what was expected. So, in the framework of imminence, we are in what I would declare a state of emergency…. In terms of imminence, it is much more important than a year ago, that we accelerate two processes. We have to accelerate the process of decreasing the use of fossil fuels for energy, and we have to accelerate the process of replacing those fossil fuel resources with renewables.”

Groundwork for a Court Precedent

By having expert witnesses outline the link between gas infrastructure expansion, greenhouse gas production and climate change, the defense for the Wawayanda Six laid the groundwork for defendants to develop their personal reasons for the necessity of civil disobedience to avert environmental calamity.

The defendants argued that CPV would produce pollution and adverse health impacts, destroy the planet and its people, and that the continued extraction and use of fossil fuels would result in the extinction of life; therefore, CPV and its related infrastructure constituted a crime against humanity. The climate necessity defense has now been used in two major environmental trials in New York and attempted in another. Even though the Wawayanda Six case did not result in a legal precedent, the climate necessity defense laid a foundation for future successful efforts to have the government, industry and the legal system acknowledge and address the imminent threat of climate change due to fossil fuel use, and establish the urgent need to move toward 100 percent renewable energy.

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