Take note owners of Loy Yang, Munmorah et al. Greenpeace activists admitted causing £30,000 damage to the chimney of coal fired plant in protest at plans to construct another one1 but were acquitted by a jury on the grounds that “they were legally justified because they were trying to prevent climate change causing greater damage to property around the world“. The decision has reverberated around the world, particularly down here. Coal seams very close to the surface in Australia have made it extremely “cheap” to dig up and burn. Until very recently, power stations such as Loy Yang located right next mines would just haul the coal into furnaces without counting it. Carbon accounting changes all that though. As Martin Parkinson (head of the Dept. of Climate Change) has pointed out, international agreements like Kyoto counts all greenhouse gas emissions produced (burned) within a country’s borders. So, while Greens quite legitimately make political hay from Australia’s parallel universes of ‘infrastructure bottlenecks’ in coal export and pissweak energy efficiency schemes, the reality of coherently accounting for the fossil fuels we export is daunting at best. If we take Australia’s national emissions accounts at face value, this means the biggest cuts available are phasing out our fleet of coal fired power plants.
The reality of this is not lost on NSW voters, it would seem. The realisation of the state’s considerable carbon liabilities [pdf] wouldn’t be pretty if we lived in the kind of frictionless, rational world imagined by some. What’s becoming far clearer is that the legacy of climate denying @rseclowns controlling the state’s purse strings over more than a decade is likely to have incredibly dire consequences for the fortunes of NSW Labor, whose local colleagues were obliterated in local elections this weekend. Inner West municipalities of Marrickville and Leichhardt (home to Federal Labor’s Anthony Albanese and Tanya Plibersek respectively) saw huge swings against Labor.
Any truly ‘A Team’ Treasurer would have the courage to pity cut the losses and get rid of the assets in a sensible manner.
How might this be achieved?
Hugh Outhred has given me permission to republish some of his thoughts on how this is possible. He wrote the following in response to the ‘Kingsnorth Six’ decision:
… all that would actually be needed to radically reduce climate change emissions from the Australian electricity industry would be an obligatory retirement schedule for coal-fired power stations except those with functioning carbon capture & storage, which would be particularly easy to do for the state-owned power stations in NSW & Queensland. Such retirements could be the outcomes of either parliamentary or judicial processes.
By staging the retirement schedule in an orderly manner over (say) one or two decades and by signalling that schedule through the existing instruments of the Annual Statement of Opportunities and the Medium Term Projected Assessment of System Adequacy, competitive processes via the existing National Electricity Market could be left to bring forward (supply and demand side) replacements except where additional “orgware” was required (eg wind & solar energy forecasting).
Instead of that orderly and organised transition, we have dysfunctional policy processes such as the Garnaut and Owen reviews and all that goes with them. Therein lies the joke, and the test will be whether we can enjoy it a decade from now.
Meanwhile, back in the UK, Anthony Giddens has announced plans for a sort of Political Stern Review. He’s identified some of the perverse and contradictory incentives in place across all levels and between different parts of government. One of his major calls is ‘a return to planning’, which he defines as:
“…taking a longterm view of things, with a time horizon stretching over three decades and more into the future. If climate change represents, as the Stern report says, “the biggest example of market failure ever”, it is largely because markets have no such view or vision of the future. Market forces can certainly be used to affect long-term processes—as happens in a routine way with pensions or insurance for instance—but they always need a regulatory framework, usually provided by the state, to do so…
We eagerly await an Australian ‘Giddens Review’ Kev - that is, if you have any interest in countering the disaffection amongst the yoof vote.
In the meantime, it might be time to dust off the abseiling gear….
Previously: Mark reminds us of Climate Change and Federal Electoral Politics
Update: The full witness statements from the Kingsnorth Six are available here
- Yeah weird choice huh. In short, nuclear is still dealing with some legacy issues, gas supplies are hostage to the vagaries of Russian intimidation and the EU ETS carbon price is pointlessly low meaning that they don’t stimulate renewable deployment.[back]
Great outcome, a tribute to the jury system , and the bravery of those greenpeacers. Im glad I donate to them regularly!
Seriously, the stakes are too high - and here’s a newsflash for business as usual types: people aren’t going to just sit back and let out of date CO2 mega-emitters just chug along merrily in a whirl of excuses, delays and general bullshit.
When the operation of this machine becomes too odious - it will be prevented from operating at all. Time to green up!
Gotta love the jury system!
Plenty who despaired when it came clear that Garnaut wasn’t going to deliver may be reading this jury decision with huge interest. It opens up the options for climate change mitigation.
Yep - under the ‘Bush doctrine’.
Its a clear case of pre-emptive self defence in the face of a clear and imminent threat. Isn’t that right, RWDBs?
There’s WMDs in them thar coal fields.
Right on Wbb. We’re not waiting around for some dodgy UN talkfest, limp-assed liberal internationalist agreement.
Let’s roll, LE.
Hmm, does this mean that those who sank the Rainbow Worrier can now appeal?
Or if a Japanese whaler damages the Sea Shepherd, that a jury acquittal would be a good thing?
Two points:
1. Call me a cranky old Tory if you like, but jury nullification is something I’m rather leery of. Say a jury acquits somebody who kills a particularly nasty pedophile; witness a spate of vigilantism…
2. I’m not convinced of the proposition that state-owned polluting power generation is going to be politically easier to shut down than privately owned. Private companies tend to be less reticent to sack people in large numbers, which is going to be an inevitable consequence of the process. No matter what we do, a lot of those people are not going to get jobs in the clean energy sector that springs up.
No and no.
Hint: Read post before commenting.
Well said Robert, jury nullification was one of the central planks of Jim Crow in the South.
And as to “they were legally justified because they were trying to prevent climate change causing greater damage to property” I can only think of Billy Bragg—”money speaks for money, the devil for his own, but who’ll come to speak for the skin and the bone?”
/maudlin
Indeed Liam and Robert, but I never said this was a panacea. Getting bits of our modern system to recognise the calculability of the problem is only going to take us so far. You got any suggestions for how best to speak for all the ’skin and bone’ at stake in poor, low lying areas around the world?
And to Robert’s second point, I’m not convinced either. Some (privately owned) generators in Victoria have fairly openly admitted that their best carbon abatement tool will be a bulldozer. I’m not aware of any such admissions from NSW generators..
I’m surprised they didn’t call Andrew Bolt as a witness to help with the prosecution teams arguments.
A jury decision in one country doesn’t indicate a likely jury outcome in another country. No precedent value. Only publicity for the cause.
I know it’s not a precedent, Ambigulous, but it is a strong expression of the factual currency of the climate change ‘predictions’ (I actually think a term like ‘premediation’ is probably more apt).
In fact such a charge would be unlikely to be heard by a Jury in Australia, and a Judge would probably recognise that the action of the activists was criminal and unlikely to result in an environmental benefit. You can read more here: http://jennifermarohasy.com/blog/2008/09/the-fight-against-global-warming-justifies-criminal-action-uk-jury-clears-greenpeace-activists/
Of course, forms of property that destructive to the commons wouldn’t even be defended by John Locke, or Adam Smith - under the harm principle. Entirely compatible with liberal traditions.
I think we’ll see spate of similar decisions in common law jurisdictions. Its good for decision makers to that major pollution centres may not receive the full protection of law - not if ordinary folk have any say in it,.
So, you know: lets avoid ugly legitimation crises and move forward before its necessary to dismantle them by direct citizen action.
And frankly, if I was a citizen of some Pacific nations, Id be looking closely at the pre-emptive defence approach. Since the US and the Neo-Con Right put it on the table - Im assuming its all it ok with them!
“You can read more here:”
Why?
“In fact” …??
From your linked post:
“This post is based on news reports and opinion pieces, does anyone have a link to, or copy of, the actual judgement”
Sounds more like speculation that wouldn’t constitute legal advice to me.
Just to reiterate: I’m not saying the judgement constitutes a legal precedent in Australia
ps. What Lefty E said
I also note that Westpac has broken from the business lobby to urge Rudd to adopt a stricter emissions trading scheme: [LINK]
It is clear that the general population, and some business groups, are so far ahead of our impotent politicians, particularly in NSW, that legal options will become increasingly significant in achieving real change.
Any truly ‘A Team’ Treasurer would have the courage to cut the losses and get rid of the assets in a sensible manner …
Err, isn’t this exactly what they did try and do in NSW, by privatisation? They were looking for a private sucker to carry the losses. While they may not have found one (certainly in current financial markets) there was surely no harm in trying.
And yeah, I’m not happy with jury nullification, ever. It’s at least as likely to nullify laws I agree with as laws I don’t.
On job losses from getting rid of coal power stations, if (as we should expect) this results on more expensive power then it means more human effort is required to produce electricity - that is, it will need more, not less, jobs.
But as I’ve said elsewhere, in the long run the number of jobs needed is not related in either direction to the productivity of those jobs. In the short run though the lower labour productivity of alternative sources of supply will mean net job creation, albeit of lower paying jobs.
dk, this post also appears to be based on news reports and opinion pieces. does anyone have a copy of the actual judgement?
Can’t find the judgement, Jennifer - I’d ask Greenpeace UK to post it you’re that interested. They appear to have responded to requests for full copies of the witness statements
Jennifer, if it’s a jury acquittal there won’t be a judgement. Just a “not guilty” verdict. The best you might hope for is to get the judge’s instructions to the jury.
Jennifer, if it was a jury decision there will be no written judgment - only a verdict. I’m not sure why you think such a charge wouldn’t be heard before a jury in Australia, although I agree that a Judge would be more likely to convict the accused persons.
Robert, Amibulous et al - I think the main implication of this kind of decision is less a green light for vigilantes than a strengthening of the perception of growing legal risks associated with large emitters, which influences investment decisions away from those types of projects.
Ah GregM - our comments crossed over.
A graffiti charge would likely be a Magistrate only - but criminal damage could well get you in front of a jury.
There’s also some offences which allow for jury trial if you don’t take the mag-only option - which Im sure certain political defendants would opt for.
Mind you, here in AU there’s some tradition of interesting Magistrate decisions along these lines too.
I was thinking along similar lines re: Buga Up as a possible precedent here LE. Not a favourable precedent though, and superficially a very similar case.
I’m not really sure if what’s happened here deserves the appellation “jury nullification” (I’m not familiar with the term, but I presume it refers to circumstances where a jury acquits someone who, on the evidence, should be found guilty).
The jury seems to have found that the accused persons had a valid defence, which looks like a species of the common law defence of necessity.
The situation is also quite different from the old “Jim Crow” scenarios. It’s not hard to see what’s going on when an all-white jury refuses to convict a white person accused of committing a crime against a black person, but I think it’s pretty unlikely that the jury in this case consisted of environmental activists, so simple prejudice in favour of the accused cannot be the explanation (last time I checked, Greenpeace activists weren’t immensely popular with the public at large). No, it appears that the jury must have really concluded that the threat of climate change was sufficient to justify an attempt to shut down a coal-fired power plant. Interesting times.
I think that jury nullification (an American term) refers to the process by which a law is effectively rendered invalid over a period of time because defendants are found not guilty for reasons not directly associated with the charges themselves.
I can’t really see how it applies in this case because the law of criminal damage is hardly under threat in a general sense. Of course there have been many claims over the years to get rid of juries altogether because people at various times have disliked their verdicts. Perhaps this is what the various posters above who don’t like this decision are saying. It would certainly suit most governments to dispense with this cornerstone of our legal system if they could get away with it.
And often the new jobs available won’t be filled by the people losing the old jobs or as you say with less pay/seniority. So you’ll still end up with lots of annoyed voters. Governments have struggled to cut back on the subsidies to the car industry for very similar reasons and I’m pretty skeptical they’ll do any better with the coal industry. At least when its privatised they can do a bit of finger pointing (like has happened with the car industry lately and the government complaining about lack of planning). But where its government owned they have no excuse with perhaps only a small window of opportunity after an election changes the party in power.
Tim’s right - this is not jury nullification. They raised a legal defence, which was accepted by a majority of the jury. Similar defences have been run by anti-war protestors, like the Pitstop Ploughshares group in Ireland (though theirs was based on preventing harm to people rather than property). It’s a common enough argument.
Jennifer says that there is no similar provision in Australian law. I refer her to s 441(3) of the Criminal Code (WA), for starters.
This jury decision may be exciting for y’all, but let’s say you drive a car that emits more CO2 than the car I drive. You pull up beside me at the lights, and so according to these 12 tried and true men and women, I am legally entitled to smash your headlights and kick your door shut on your fingers as you get out to repulse my defence of the atmosphere.
Or let’s say I have seen the light and sold my car because it’s killing the sky. Now I can stand on the foot bridge over the freeway and drop rocks on all the cars, if I have enough rocks.
If you want to flirt with anarchy, you need to be confident you are a bigger thug than the rest of us. My guess is that the soft white urban middle class that frequents these blogs, would, like me, be the first to go under if law and order breaks down. We can all be brave sitting in our house with the lights on, talking about this act of wilful naughtiness, but you’re all just voyeurs, chatting about something you wouldn’t have the balls to do yourselves. After you have checked under your house for biodiversity, I recommend you turn off your computer and stop wasting energy hanging around on the internet.
I think it is a good thing to clean up the energy industry – I work in a field of bioenergy – but I want our industry to win on its merits. I don’t want to be successful with the help of the clowns from greenpeace who have unresolved issues with their abusive fathers. A modest price on carbon is all we need to displace dirty coal.
Boxer, with respect, that is nonsense. The verdict in this case in no way creates a green light for “anarchy”, and the situation you describe does not realistically resemble it. Anyone stupid enough to think that this verdict gives them a licence to kick in somebody’s car windows would be disabused of the idea pretty quickly, I suspect.
As I said before, the key effect of the case is that it is yet another signal that society’s tolerance for heavy greenhouse polluters is in decline. That, alongside a carbon price, is an additional motive to direct investment into cleaner energy industries such as yours.
Shorter Boxer:
We’re all on a slippery slope to hell! Dogs and cats embracing! Nuns and clowns in cabaret duos! Senses of proportion and scale thrown out the window, run over by a semitrailer and force-fed to puppies!
Don’t be too harsh on boxer - he’s just a poor boy whose story’s seldom told, and he’s squandered his resistance for a pocketful of mumbles, such are promises.
Hardly surprising really.
The jury’s decision does reflect the reduced tolerance for heavy CO2 emitters and it does increase the pressure on company directors to change the behaviour of their corporations. But at what cost?
It does not in itself, in a single step, represent the collapse of society, or even a repeat of kristelnacht. That was bleedin’ obvious – I used a little colourful overstatement to make my point.
But the path to kristelnacht was no doubt paved with little incidents where the general populace of an educated and civilised nation turned a blind eye to the brown shirts and their bending of the rule of law. When moral positions are recognised as providing exemptions from the law, the law has been usurped by the mob. (Please don’t try to tell me that anti-Semitism is not a moral position; it is merely a moral position that’s been out of fashion since 1945.)
The reason you and I will not agree on this point is because your moral position, to put evil polluters in their place by acts of illegal vandalism, is an immoral assault upon the rule of law in my opinion. These differences of opinion are to be settled by the legal system. If you don’t like the law, have it changed. Make it legal to bomb coal-fired power stations if that will help save the planet.
In the meantime, if the legal system is corrupted by jurors who do not understand their role, we have stepped onto the same slope that the Germans did in the 1930’s. And to be clear, I am not saying we will inevitably become an eco-Nazi state by 2020, but if little people like me say nothing now, it just might, maybe, become harder to speak up in the future. This whole moral outrage thing about climate change (an issue that none of us really understand all that well) has a very ugly tone to it at times. If you can’t detect that tone, that may be because you’re inside the cloud of virtuous rage.
Now someone will invoke that silly rule that says using the Nazis in an argument disqualifies your position. But the Germans were not a special case. You, we, are not better than them. All societies move up and down that same gentle slope and the trick is to know when to turn back.
So dream on revolutionaries. Your wardrobe, with the tee shirt sporting the image of Che Guevara, or the other one with the AK47 held aloft, is a terrific statement of political awareness. But do bear in mind that, if push comes to shove, you wouldn’t be able get the first round into the chamber, or find the safety catch if someone else worked the action for you (sorry, more overstatement; I know guns have ceased to exist since Port Arthur – oops, did it again).
You can only indulge in your fantasies because that law, which I think should be protecting the coal industry from greenpeace thugs, keeps you safe in bed at night.
Your parents have probably been around this circle before you and look at the silly old farts they turned into. But this time you’ll change/save the world – you are the people you’ve been waiting for!!!
You’re gunna be really disappointed when you arrive and meet yourself.
“So dream on revolutionaries. Your wardrobe, with the tee shirt sporting the image of Che Guevara, or the other one with the AK47 held aloft, is a terrific statement of political awareness. But do bear in mind that, if push comes to shove, you wouldn’t be able get the first round into the chamber, or find the safety catch if someone else worked the action for you (sorry, more overstatement; I know guns have ceased to exist since Port Arthur – oops, did it again).
You can only indulge in your fantasies because that law, which I think should be protecting the coal industry from greenpeace thugs, keeps you safe in bed at night.
Your parents have probably been around this circle before you and look at the silly old farts they turned into. But this time you’ll change/save the world – you are the people you’ve been waiting for!!!
You’re gunna be really disappointed when you arrive and meet yourself.”
Aren’t we talking about trespass and graffiti?
No ,the terror of noise pollution FDB … you know we are watching that band of loud anarchists .
Just don’t put any self promoting posters up anywhere .That would be my sage advice having just peeked in the puddle outside and seen my father looking back wondering how he got so wet.
WTF? How the hell does anti-semitism come into it???
The Boxer returns!
‘All lies and jest, still a man hears what he wants to hear
and disregards the rest hmmmmm’
Comments closed. You kids obviously can’t play nice.