Judicial Social Precedence, The Writing on the Wall?

Back in May 2013, two environmental activists took direct action against a coal company by blocking a 40,000 ton coal shipment with their lobster boat, the Henry David T., successfully preventing a shipment to the largest coal in New England. They were brought to court and charged with disturbing the peace, conspiracy to disturb the peace, negligent operation of a motor vessel and failure to act to avoid a collision of a boat. If convicted they would be facing years in prison.

The court decided to allow the activists to use 'necessity' as a defense, this would allow them to claim that they had no choice but to break the law in order to prevent an even more overwhelming harm from happening. This was big, it was the first time that the courts had allowed the necessity defense when it comes to environmental activism. In this case the charges were all reduced to civil infractions, because the defendants were planning on calling in climate change experts, like Bill McKibben, to argue their case. The prosecutors didn't like the idea of looking stupid if they tried to argue against climate change experts, and the court didn't like the idea of the reality of climate change being downplayed.

So the case never went to trial, and necessity was never able to be used as a defense, meaning this case didn't set any actual precedent. BUT, this case did set a social precedent, meaning that it could be more acceptable for judges to lean in favor of addressing climate change issues.

Another climate change related lawsuit has been filed more recently. As part of the divestment movement efforts, 7 law students and undergraduates filed a lawsuit against Harvard Corporation, which is the governing body that makes Harvard College's investment decisions and includes the college's president and fellows. The students are suing for the "mismanagement of charitable funds" and is partly invoking a tort for the "intentional investment in abnormally dangerous activities". This tort has no precedent to stand on, but the complaint itself is standing on the precedent that allows "those with special interests" in an organization to bring claims concerning mismanagement of its funds.

This case is going to make a big impact to either hurt or strengthen the divestment movement, depending on whether the court will allow students to be considered "those with special interests" and if the tort claim is also allowed. It could be argued that because the necessity defense was allowed to prevent the even bigger harm of coal contributing to climate change, then investing in coal and other fossil fuels should be argued to be an abnormally dangerous activity.

Could the social precedent help bring actual precedent to the divestment lawsuit?

Depending on how the divestment lawsuit is decided it could spur a rise in activism and lawsuits against investment groups. Is this the start of a judicial shift in decisions when it comes to climate change? This kind of seems like the writing on the wall, that there is hope to finally start holding the fossil fuel industry accountable.

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