Professor Andrew Horwitz explains why the "necessity defense" invoked by two environmental protesters at Brayton Point Power Station is a long shot.

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Horwitz on 'Necessity Defense'

Professor Andrew Horwitz explains why the "necessity defense" invoked by two environmental protesters at Brayton Point Power Station is a long shot.

From the Providence Journal:Activists who blocked coal barge at Brayton Point to use ‘necessity defense’ at trial, by Alex Kuffner, Journal Staff Writer

Lobster boat blocks coal shipmentFALL RIVER, Mass., September 06, 2014: When Ken Ward and Jonathan “Jay” O’Hara go on trial here on Monday for blocking a coal shipment to Brayton Point Power Station, [...] the two environmental activists will argue that their actions were justified because of the threat posed to the planet by the burning of fossil fuels. […] It’s a novel use of what’s known as the “necessity defense” — a long-standing doctrine that allows that in some instances by breaking the law a greater harm is being prevented. […]

Though criminal law professor Andrew Horwitz said the necessity defense has a long history, he has never heard of it being argued before in a U.S. court in relation to climate change.

Professor Andrew HorwitzTo explain the logic behind the defense, Horwitz, an assistant dean and professor of law at Roger Williams University School of Law, describes someone walking on the sidewalk who is confronted by a car veering into their path. To get out of the way, the pedestrian jumps into a homeowner’s garden. Under the law, he trespassed, but he only did it to save his life. […]

 “The struggle — and why these defenses rarely succeed — is that the nexus between action and plausible claim that you’re preventing the harm is hard to establish,” Horwitz said.

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