British jury in Kingsnorth case finds in favor of climate change protestors
By a majority verdict, a British jury found five protestors who shut down the Kingsnorth coal-fired power plant had a “lawful excuse” to close the plant to prevent greater damage from global warming. Greenpeace activists, protesting the contribution of coal-electric power plants to climate change, scaled a chimney and painted the word “Gordon” on the chimney before they were forced down (“Gordon” is a reference to British prime minister Gordon Brown). The protest shut down the power plant temporarily and the graffiti cost about $62,000 to remove. The jury verdict in favor of the protestors illustrates how a U.S. jury might respond to similar protests.
The jury verdict in favor of the protestors illustrates how a U.S. jury might respond to similar protests. According to a recent Pew Research global warming survey, 73% of respondents said that global warming was a serious problem. Forty-seven percent said that human activity was the cause of warming. If a case like the one in Britain came to trial before a U.S. jury, about half of the seated jurors are likely to enter the trial with attitudes and opinions favorable to defendants.
With Congress in gridlock and given the increasing partisan divide on the reality of global warming and its causes, climate issues are unlikely to be resolved by the political process, at least in the near term. Instead, climate issues are likely to come, piecemeal, to the courts for resolution on case-by-case basis. Juries (and judges) are ill-equipped to decide these issues and not just because the issues are complex and difficult. Juries and judges typically decide questions of past fact where the evidence is assembled and brought to the trier of fact for evaluation and judgment. But climate change issues involve questions of future fact: “Is the damage to shutting down a power plant greater or lesser than the damage to done to the climate from continued operation of that plant?” These are policy questions, not questions of fact, on which we make judgments before all the evidence is in. On climate issues, the evidence is still being collected and the policy decisions we reach are inevitably affected by our values. To ask a jury to decide these issues while the evidence is still being collected is like asking jurors to decide a murder case while the police are still investigating. Faced with incomplete facts and competing expert opinions, jurors (and judges) have little choice but to interpret the evidence in light of their life experience. As we saw with the British jury, jurors will decide the controversy in light of their own opinions and values. The Kingsnorth case also highlights the thorny issue of how climate science will be dealt with in front of juries. Climate scientist Jim Hansen was permitted to testify that “the 20,000 tonnes of carbon dioxide emitted daily by Kingsnorth could be responsible for the extinction of up to 400 species.” But this kind of specific causation opinion – linking emissions from a single plant to extinction of 400 species – is controversial at best and would face a significant reliability hurdle in U.S. courts.http://www.globalclimatelaw.com/admin/trackback/86992
