A Climate Strategy of Last Resort

We are out of time. The easy, comfortable, and harmonious means of addressing climate change are not working. In 2021, in How to Blow Up a Pipeline, the Swedish scholar-activist Andreas Malm chided activists for excessive legality. It is time to block and destroy some things, he said. Not to hurt anyone, but to impede the supply chains that extract, transport, and burn fossil fuels. Indeed, protests could interrupt and reduce the flow of these harmful fuels, keeping some in the ground. Malm’s readers reacted skeptically. In The Nation Daniel Sherrell worried about a backlash to this kind of action. Right-wing legislators and media would disavow climate-minded saboteurs as terrorists or a “Green ISIS.” This is certainly possible. Even peaceful blockades—at a scale that undermines the oil economy—could repel institutional allies. But maybe those allies don’t matter so much; they clearly have not reduced the flow. The larger concern is that the state would repress such unlawful protest, locking up some activists and deterring most others. Proponents of direct action need a secondary strategy, different allies, and a means of avoiding jail, fines, and criminal records. What if protestors—while breaking the law and going to trial—looked across the room for support: to the jury? This oldest of democratic institutions wields the unchecked power to acquit, to set aside and unmake laws, and to ultimately render oil routes unprotectable. Juries have the power to sow anarchy far and wide. To be sure, the risks of this mode of activism are high and success is uncertain. The strategy known as jury nullification should be one of last resort. Unfortunately, the climate movement is running out of better options.

The U.S. government is failing to address climate change adequately and at the speed necessary. After decades of dithering, Congress passed the Inflation Reduction Act (IRA) in August 2022. That legislation—a dim echo of the Green New Deal—will promote renewable energy. It will put solar panels on houses, schools, warehouses, and open fields. Between now and 2030, it could reduce U.S. carbon emissions by about 20 percent (down 40 percent from 2005 levels)—but that prediction depends on unproven carbon capture technology and overlooks exports of fossil fuels. The IRA, moreover, will not staunch the methane leaking profusely—way beyond the official count—from oil and gas fields across the country. Current legislation is not enough to mitigate climate change. In March 2023 Biden proved that point by authorizing Alaska’s Willow Project, an oil-drilling venture projected to produce 600 million barrels of oil in the next three decades, without Republicans even needing to coax him into breaking his campaign promise of no new drilling on federal land. That party, of course, now controls the House. The more far-reaching bills—such as the End Polluter Welfare Act and the Keep it in the Ground Act—will not pass until 2025 at the very earliest. And these are still only baby steps.

“Why so impatient?” some will ask. “Let’s transition gradually,” they will propose, avoiding financial losses and hard landings. That is what James Hanson advised Congress in 1988 and what Bill McKibben wrote in his 1989 eye-opener The End of Nature. We had time for soft landings then. We do not now. The climate and global energy fluxes do not negotiate, and if we wish to preserve human existence—under conditions better than those in Mad Max—the United States needs to stop producing oil, gas, and coal. Policymakers need to stop planning new pipelines, refineries, export terminals, and so on. And the energy sector needs to shut down and decommission extant infrastructure long before it has worn out. We need to start this process now, accelerate immediately, and tail off by 2050.

Another approach to mitigating climate disaster is happening, and with great fanfare. The IRA and similar measures will spur investment in renewable sources of electricity and appliances and automobiles that run on electricity. These are good ideas, as are electric steel plants, fertilizers made with hydrogen from water, and the substitution of natural materials for plastics. But are these technologies going to displace and retire fossil fuels—that is, produce the one shift that we desperately need? Backers of the IRA trust that markets will cause that shift to occur. Already the “levelized cost” (which measures the cost of an energy generator across its entire life cycle) of electricity from the sun has fallen well below the cost of fossil-generated electricity. The smart money should be flowing out of fossil fuels and into their ever cheaper alternatives. Prices and markets, however, do not always win out. Subsidies, lobbies, and favorable policies—some of them perpetuated by the IRA—continue to prop up fossil fuels. If the trend continues, the United States will simply add renewables to satisfy new energy demand while continuing to burn fossil fuels at close to the current baseline—all while exporting more too. Washington has returned to Obama’s “all of the above” approach.

Is there a legislative means to finally replace and retire oil, gas, and coal? Probably not in the United States. Congress is too compromised, too captured by pro-fossil interests. Campaign finance reform would moderate that problem, but legislators have been unwilling to regulate themselves. Constitutional reform—say, abolishing the Electoral College or the Senate—would probably clear the way for environmentally friendly legislation. Obviously, though, our Constitution is now set in stone. Some states are taking action—notably California—but not the big oil states of Texas, Louisiana, Alaska, and so on. Some might hope for an environmental dictatorship, a Climate Leviathan, as Joel Wainwright and Geoff Mann describe it. But the Trump-led dictatorship we will likely get will go the other way, denying climate change and promoting fossil fuels. Moreover, the heavily armed forces of law and order will crush any insurrection from the Left. We seem to be stuck. The United States cannot have constitutionality, democracy, and sustainability all at the same time. Or can we?

In evaluating democracy Americans tend to focus on the legislative and executive branches. We obsess about elections and the behavior of people who write and sign laws while overlooking the jurors who make those laws stick. The English Magna Carta of 1215 guarantees an accused man “the lawful judgement of his equals.” Over the centuries and over the ocean, these peers evolved into randomly chosen bodies of citizens, instructed by a judge and applying standards of evidence toward a unanimous verdict. “The jury system,” wrote Alexis de Tocqueville in Democracy in America (1835), “[is] as direct and as extreme a consequence of the sovereignty of the people as universal suffrage.” “The jury,” he continues, “is that portion of the nation to which the execution of the laws is entrusted.” In the year of his writing, this analysis was more hopeful than accurate. By now—when women and Black people have won the right to serve—juries look like America. They compare rather favorably to our millionaire Senate—which, of course, often represents billionaire donors. And this is the surprising part: juries can do the same job as the Senate. Rather than simply adjudicating guilt, jurors may make law. To be precise, they may unmake it.

Jury nullification, as it is known, is a particularly American privilege. It emerged through legal and insurrectionary practice. In the run-up to Independence, writers of seditious tracts and evaders of high tariffs won not-guilty verdicts from sympathetic juries. Jurors effectively encouraged the anti-tax Tea Party. The Constitution’s Sixth and Seventh Amendments guaranteed the right to trial by jury without limiting or delimiting the role(s) of the jury. That silence allows jurors—in an oft-cited phrase—to act as the “conscience of the community.” Before the Civil War, many Northern juries acquitted violators of the Fugitive Slave Act and made the law almost impossible to enforce. In 1971 a New Jersey jury acquitted the so-called Camden 28, an anti-Vietnam war group accused of destroying records in draft board office. The twelve did not explain a verdict seemingly against the evidence. In theory a juror who explicitly disregards evidence is committing contempt of court. But no court has convicted a nullifier of that offense (although the threat has chilled speech enough to prevent any analysis of nullification by race or other factors). The state cannot appeal a not-guilty verdict in a criminal trial (although defendants may appeal a guilty verdict all the way up to the state’s highest court). Even one juror can force a mistrial, and states tend to forego appeals in such cases due to expense and publicity. In short, nullification is a power—if not quite a right—of every person called to serve.

According to the usual theory of change among activists, protests grow large enough to gain media coverage and thereby win support among the public and elected officials. In 2014 the People’s Climate March did just that. Taking to the streets of Manhattan, 400,000 people—in addition to marchers in sibling rallies across the country—advocated for legislation to mitigate the effects of climate change. In 2022 the symbolic became material with the passing of the Inflation Reduction Act. Meanwhile, thousands more have been arrested for obstructing traffic (myself included), locking themselves to bank doors, and—most dramatically—blockading new pipelines. Indigenous and other protestors killed the Keystone XL Pipeline, ensuring that it will not carry new supplies of tar sands oil. But existing supplies of every kind of oil are moving through extant infrastructure under regulations as permissive as ever. The symbolic is not becoming material fast enough. The change we need is not happening.

Maybe it is time to change the theory of change—or at least expand it. Here I imagine a supplemental wave of direct action against current flows of oil, gas, and coal: a material, physical protest that proliferates and prevents some fossil fuels from being burned. Such protests have already started here and there. Activists have blocked an oil train in Everett, Washington and closed the valves on pipelines across the northern tier of the United States. But they have interrupted the flow of fossil fuels for only hours, and press coverage and light criminal sentences are considered a victory. We must aim higher. Imagine the action necessary to shut down fossil fuel infrastructure permanently. It would take successive cohorts of activists, each one willing to sit on tracks or roads until, having been hauled off, the next cohort replaces it. They would face arrest and criminal penalties. Does the Left have sufficient people power—of individuals fearless enough or secure enough—to carry out this kind of direct action? In late 2021 Yale’s Program on Climate Change Communication polled various groups on their willingness to take part in nonviolent civil disobedience. According to their numbers, 8 percent of millennials and younger “definitely” would break the law and risk arrest for the climate. Still, as the cuffs come out and penalties become clear, some protestors might change their mind. But we can abolish those penalties.

Let’s borrow a page from the Hip-Hop theory of justice. Paul Butler—a former prosecutor and Georgetown Law professor—advocates jury nullification in nonviolent drug cases. Black jurors, he writes in Let’s Get Free: A Hip-Hop Theory of Justice (2009) can effectively end the war on drugs, biased policing, and discriminatory sentencing. This has been happening under the radar for twenty years or more. In the 1990s Butler lost cases in the mostly Black District of Columbia. Jurors did not know of their power to nullify; they simply exercised common sense and the conscience of the community. Black neighbors refused to send neighbors’ kids to jail for smoking a joint or two. Some jurors nullified unconsciously, as is often the case. Where evidence was murky, they came down on the side of innocence. One very deliberate white juror disclosed to Butler, “We knew he was guilty, but he was so young.” Mercy has effectively gutted many a possession law. Much of the cannabis on U.S. streets became practically legal even before legislatures decriminalized it. The same could happen more rapidly with abortion. At least thirteen states have made the procedure illegal. Will a jury convict the pregnant person, the doctor, or anyone else who assisted? I doubt it. Jurors may reject the law in favor of a defendant’s right to choose. Or—playing it a little safer—they might question evidence of assistance. In any case, as explored in these pages, juries in 2023 can partially redo the work of the Supreme Court in 1973, fighting the overturning of Roe v. Wade.

Jurors wishing to practice this “conscientious acquittal” in fossil fuel cases will draw on different justifications and precedents. Currently, most defendants take plea deals and avoid court. For those who do go to trial, evidence of trespassing, tampering, and criminal mischief will be clear-cut. One does not block roads and rails in secret. Jurors will probably not be able to acquit for want of proof. The defense may argue, instead, for necessity: that the crime prevented or was intended to prevent a greater evil. But judges often refuse to allow attorneys to present that case. With or without guidance from the defense, the would-be nullifier on the jury will likely need to reject laws outright—and on grounds more diffuse than anyone’s individual rights. That seems like a high bar. Fortunately, the “conscience of the community” is already moving against Big Oil. In 2012 Bill McKibben launched the fossil fuel divestment movement by calling on colleges to strip oil and gas firms of their “social license.” He was not referring to their business licenses or environmental permits. By voting to sell shares, college trustees would signal a general social rejection. Exxon and its ilk are, in fact, becoming unacceptable—null, in a certain sense.

Such disrepute takes many forms. At about the time of McKibben’s call, the mining industry was confronting protests from Papua New Guinea to Colombia to Southern Europe. Angry villagers and Indigenous people were blocking roads and damaging equipment. Corporate lawyers raised the alarm, warning of “a complete collapse of the . . . Social License to Operate.” Withdrawing a social license thus seems to license a physical escalation. Indeed, members of society do block and break things, and in remote, lightly policed areas, they get away with it.

In the heavily policed United States, however, society would need to intervene twice: first through those doing the action and, second, through the jurors acquitting them. After that—for oil to stay underground—new cycles of protestors and jurors would have to block and nullify again and again. That cycle would benefit from media attention and legislation, but it does not need them. The block-and-nullify cycle alone achieves material goals.

Four conditions would make it more likely for these actions to start and take effect. First and most obviously, the action should avoid violence or the threat of it against persons. Second, the organizers should choose the location strategically: consider the jury pool and its influences. If local colleges, churches, and public pension funds are divesting, then the conscience of the community is already turning against fossil fuels. The same holds if wind, solar farms, and electric vehicle chargers are going in. Third, favor the near over the far. Start by blockading exports. Jurors might sympathize with the corner gas station but less so with the coal port further down the road. They will also sympathize more with hometown defendants than with protestors from one state over. Fourth and finally, jurors need to know their power. Judges will not tell them; someone else needs to spread the word about conscientious acquittal. In short, study the map, learn the locale, and organize within the jury pool.

Opponents of fossil fuels should not stop voting and protesting in Washington, D. C., and elsewhere. Given our compromised Congress, however, the jury system might do certain parts of that job better. If people start shutting down coal plants, for instance, legislatures may legalize and normalize their closure and replacement. Make oil unprotectable, and the rest will follow. The Berlin Wall fell through a kind of block-and-nullify move. Demonstrators marched illegally in Dresden and then to the wall itself while police and border guards chose not to open fire. East Germany is no more. At this late date, that is the kind of rapid, complete revolution that we need regarding fossil fuels.

There are risks. The judicial record is replete with instances where all-white or mostly-white juries acquitted white defendants of offenses against Black victims. Remember the murder of Emmett Till in 1955. Despite ample evidence, the jury acquitted the suspects, and they later confessed their crime to the media. Nullification made the laws that protect African Americans unenforceable. Now only the most unflinching prison abolitionists endorse nullification across the board and without qualms. Most legal observers treat nullification like a loaded grenade, and judges positively abhor it. Political scholar Jeffrey Abramson warns of the “anarchy of conscience” in what he wryly calls “the direct and raw character of jury democracy.” Outcomes are unpredictable. Unleashed jurors might acquit white protestors blockading fossil fuels, convict people of color doing the same thing, and pardon unpardonable criminals. Is the directness of the twelve worth their rawness?

I would argue yes in the current emergency. The alternatives are worse. The optimistic business-as-usual scenario—taking the Paris Accord into account—predicts that the global temperature will rise to over 2 degrees Celsius above preindustrial levels by the century’s end. Such heat imperils basic human physiology and global food supplies. Widespread, sustained cataclysm will bring out plenty of rawness—blockades with a body count. Remember white vigilantes barring roads against African Americans in New Orleans after Hurricane Katrina. Within the law border guards are already sealing riverbanks and coastlines off from migrants, from the Rio Grande to the Aegean Sea. Multiply the guns and cages over a continent and over decades. That is the anarchy without conscience promised and presented by fossil fuels. Our choices are hard and stark. To believe otherwise is to practice a soft form of denial. We must try every strategy. In opposition to fossil fuels, jury nullification is worth the risk. It may be our last, best hope.

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