A Merrimack Superior Court judge again rejected an attempt to use a competing harms defense for five protesters who tried to stop a train bringing coal to the Merrimack Station power plant in 2019.
The five defendants in the case were part of a group of activists with the No Coal No Gas coalition who were arrested when they held a protest on the railroad tracks at Robie’s Bridge in Hooksett. All five defendants were charged with misdemeanor criminal trespass, and one is also charged with a misdemeanor count for resisting arrest.
At the Monday hearing, the defendants’ attorneys argued that they should be able to present a competing harms defense to the jury at trial, which would allow them to argue that the protesters’ acts were justified because they believed they were necessary to avoid greater harm — in this case, climate change.
“Our theory was that it was necessary to engage in civil disobedience and non-violent direct action in order to spark the necessary social change to prevent the ongoing disaster of climate change, to intervene now while we still can,” Logan Perkins, an attorney representing the defendants, said in an interview with NHPR.
Judge Andrew Schulman denied the defense’s request to use the competing harms defense during the trial. Schulman had already denied the request on two previous occasions, writing that their alleged conduct “could not, in and of itself, prevent or in any measurable way limit, retard, or restrict climate change.”
County prosecutors objected to the defense’s intent to raise the competing harms defense in a supplemental brief, citing State vs. Dorsey, the 1978 case of a protester who trespassed at the construction site of the Seabrook Nuclear Power Plant.
In that case, the New Hampshire Supreme Court said that the competing harms defense only applied to imminent, urgent threats and could not be used when legislative decisions have sanctioned the harm in question. In the case of the Merrimack Station power plant, the judge said, the harms that protesters sought to mitigate have been permitted by the Environmental Protection Agency and other legislative bodies.
Attorneys representing the defense argued that climate change is an imminent threat and that social movements are an important part of shifting policy and permitting decisions, citing the more than 100 public comments submitted on the re-permitting application for the power plant after the action taken by protesters.
The competing harms defense, otherwise called the necessity defense, has been brought up across the country as a way to argue the legality of civil disobedience related to climate activism. So far, no defendants have been acquitted based on the defense in the United States, according to the Climate Defense Project.
In a 2014 case in Bristol County, Massachusetts, a judge allowed attorneys to present the necessity defense for two men who blocked delivery of coal to the Brayton Point Power Station. But before the argument was made, the district attorney prosecuting the case dropped the most serious charges and reduced the others, saying "Climate change is one of the gravest crises our planet has ever faced.
The Merrimack Station is the largest coal-burning plant that remains in New England and is the only coal plant in the region without a shutdown date.
The latest report from the Intergovernmental Panel on Climate Change found that the burning of fossil fuels, including coal, has accounted for 86% of carbon dioxide emissions over the last decade.
The jury trial of the five defendants in the case is slated to begin in the spring of 2022.
