The emerging use of the law as a vehicle for climate protest

Kate Higham looks into the background to the contempt-of-court trial of Plan B’s Tim Crosland in connection with the ‘Heathrow Case’ and links the trial to a broader phenomenon which sees courts deliberately chosen by climate activists as a space to debate the moral implications of climate inaction.

On Monday 10 May 2021 a small, socially distanced group, myself among them, gathered at the Royal Courts of Justice in central London. We were there to watch a three-judge panel of the UK’s Supreme Court preside over the contempt-of-court trial of Tim Crosland, an unregistered barrister and director of the legal action charity Plan B. In December 2020 Mr Crosland breached a Supreme Court order by publishing the outcome of an embargoed decision in the high-profile case of Plan B Earth v Secretary of State for Transport (the ‘Heathrow case’) 24 hours before it was due to be handed down by the court.

Representing himself in the contempt proceedings, Mr Crosland argued that breaking the embargo – and risking prosecution – was a necessary and proportionate action. In his view, the Supreme Court judgment failed to clearly examine evidence that had emerged during legal proceedings before the High Court in 2019 of government ‘dishonesty’ over the development of the policy framework for a third runway at London’s Heathrow Airport.

According to Mr Crosland, Chris Grayling, the Secretary of State for Transport when permission for the runway was originally granted in 2018, had knowingly misled Parliament and the public by claiming to have considered the UK’s international climate obligations in the decision-making process. Mr Crosland said that although the Secretary of State had given some regard to the need to limit global temperature rise, he had based his assessment on limiting warming to 2°C rather than the 1.5°C that the Paris Agreement says is preferable. According to the IPCC, the UN body responsible for assessing the science of climate change, the difference in impacts between these two scenarios is vast, with 2°C of warming leading to greater loss of life that would, in Mr Crosland’s words, see “poor regions turned into human death traps”. Mr Crosland argued that Mr Grayling had initially failed to acknowledge, or even reveal, that he had used the 2°C scenario in his decision-making and that it was critical that this information was now given a public airing.

Mr Crosland raised his concerns with the court prior to the publication of the judgment. In his view, however, the court’s response failed to address them. He then argued that he had resorted to civil disobedience in the form of breaking the embargo as the only way to ensure that the facts left out of the judgment received the same popular attention as those included. He felt that without some effort to draw additional publicity to the issue, it would be lost in the commentary around the judgment. By exposing himself to the risks associated with contempt proceedings, Mr Crosland sought to bring a human element to this aspect of the story and encourage people to consider why he thought it was so important to be worth those risks. Mr Crosland saw this course of action as the best chance to draw attention to what he alleged to be government dishonesty and thereby discredit the climate-damaging policy framework that the judgment had left standing.

Relying on an authority from the same court before which he was now being tried, Mr Crosland argued that while “publicity [… can be] a powerful disinfectant” in cases of government dishonesty, “the press cannot expose that of which it is denied knowledge”. 

The judges showed little hesitation in convicting Mr Crosland of criminal contempt of court and stressed that by intentionally breaching a court order, and publicising that breach, the defendant had interfered with the court’s fundamental ability to ensure the fair administration of justice. Although they did not question Mr Crosland’s stated motives, they were unmoved by his arguments. They concluded that there was “no rational connection” between Mr Crosland’s action in breaking the embargo and his stated aim of averting the “climate crisis” which he had so vividly described.

Connecting the Crosland case to current climate litigation trends

Although unique in some respects, Tim Crosland’s case can be connected to at least two distinct recent trends in climate change litigation evident around the world. The first of these sees courts increasingly used as a vehicle by citizen movements seeking to challenge government inaction. The second, the most clearly analogous, sees climate protestors charged with criminal offences – most often following intentional acts of civil disobedience – seeking to use a defence of “climate necessity” in court. 

Citizen engagement

Litigation has long been a key tool for social movements, and this is no less true in the climate context. Furthermore, the COVID-19 pandemic has seen an increase in citizen engagement with litigation as people who are unable to take to the streets are turning to the courts instead to get their voices heard.

A prominent example is the case of Notre Affaire à Tous and others v. France, brought against the French government for inadequate action on climate change by four French NGOs who submitted a petition signed by over 2.3 million members of the public as part of their proceedings. Although this case originated prior to the pandemic, it can be taken as indicative of a growing interest among citizen activists in using the law to further the debate on climate. More evidence of this trend can be seen in a new wave of climate cases supported by crowdfunding campaigns. UK-based website CrowdJustice, for example, currently supports at least 18 climate-related entries.

Civil disobedience

The COVID-19 pandemic is not the only factor that has led to a shrinking space for public participation in climate decision-making through conventional channels of protest. The past few years have seen an upturn in government restrictions on the right to protest. In the United States in particular, elements of this trend have been connected to a concerted effort funded by fossil fuel groups and their advocates. Increasing numbers of activists – spurred on by the messaging of groups like Extinction Rebellion – are viewing civil disobedience as an alternative to lawful protest. For these activists, both the original act of disobedience and their subsequent engagement with the legal system can be tactics of protest, providing ongoing opportunities to justify their actions and thus engage multiple interlocutors in the climate debate.

The US non-profit Climate Defense Project, for example, sees the climate necessity defence as “a political-legal tool used by climate activists … [that] uses the procedures and language of the legal system to educate the public about the risks of climate change”. As of 2019, the Project had tracked at least 28 cases in which the “climate necessity defence” has been used by protestors in North America. Although defendants were denied the opportunity to present the necessity defence to a jury in most of these cases, claimants relying on the proceedings in jury trials were acquitted of the most serious charges against them in two out of four cases.

Here in the UK, reliance on climate science to excuse alleged criminal activity has garnered some success. In 2008 the ‘Kingsnorth Six’, who had been charged with criminal damage after attempting to shut down a coal-fired power station, were acquitted by a jury after expert evidence on the urgency of climate change was presented. More recently, an Extinction Rebellion protestor was acquitted of charges of criminal damage to a council building by Cambridge Magistrates’ Court, and six others known as ‘the Shell Six’ were acquitted by a jury at Southwark Crown Court after breaking windows at Shell’s London headquarters. In the latter case, each plaintiff was allowed to provide evidence of their motivations for the defence, although a full necessity defence was denied. According to an Extinction Rebellion press release, the defendants were acquitted despite the judge’s reminder of the jury’s duty to apply the law rather than deciding the case on moral grounds.

Changing opinions?

Tim Crosland’s trial provides a clear example of the growing sense of desperation felt by climate activists from all walks of life and their frustration at the slow speed of governments’ response to climate change. Taken within the broader context the case also suggests that public opinion on the rights and wrongs of the climate crisis may be swinging towards greater support for action. If there had been a jury in Mr Crosland’s case, they may not have found his defence as convincing as the arguments of those protesting Shell’s fossil-fuel-based business model. However, perhaps Mr Crosland’s argument that his actions were the best way to spark what he considered a necessary public debate might have had more traction with a jury than it did with the judges; could they have been less quick to deny the existence of “any rational connection” between his contempt offence and his aim of averting a climate crisis?

By scrutinising cases like these, we can begin to better understand the various ways in which the law is being used as a vehicle for protest and mobilisation towards climate action.

The views in this commentary are those of the author and do not necessarily represent those of the Grantham Research Institute.

This article was informed by the Climate Change Laws of the World database, the largest global dataset of climate change law, policy, and litigation. Explore the database here.