Q&A with Ted Hamilton on Climate Change and the Courts
Ted Hamilton is the co-founder of the Climate Defense Project, a nonprofit that represents climate change activists engaged in front-line civil disobedience. The organization provides direct legal support for activists, connects attorneys with climate justice communities, and campaigns, and pursues climate-impact litigation. Hamilton is also a Law, Ethics & Animals Program (LEAP) Student Fellow at Yale Law School and a Ph.D. student in Comparative Literature at Yale, where his research focuses on environmental ideologies and social change in the United States and Latin America, with a focus on the way that the human-nonhuman divide is represented in law and literature. He received his J.D. from Harvard Law School. In 2019, Hamilton co-authored the first law review article on the climate necessity defense in the Stanford Environmental Law Journal. He is also the author of Beyond Fossil Law: Climate, Courts, and the Fight for the Future, which is forthcoming this year from O/R Books.
What is the climate necessity defense? Why do you think it is such a compelling strategy for advancing climate justice goals?
In your experience, what have been the benefits to using this defense and what are its limitations?
One major benefit is that it democratizes the climate issue and tries to make climate justice something that anyone can participate in. In a situation in which our government and most institutions are not acting quickly enough to avert climate change, climate necessity defense cases are sort of an exercise in direct democracy in the sense that people take direct action by themselves and then ask a jury of their peers to sanction their conduct. If a whole bunch of climate necessity defense cases are successful, it can boost the movement and encourage more nonviolent civil disobedience, which we think is definitely a necessary condition for pushing the fight for climate justice. Even though we definitely want to see policy change, there’s got to be real social movement pressure to make that happen. We’ve had success with some cases around people going after pipelines, like the Valve Turner groups, and we’ve seen that people get inspired by that and try to take similar actions because a courtroom fight obviously raises the profile of those kinds of movements.
That being said, there are a lot of challenges. First of all, there are a lot of judges who are really reluctant to allow the defense in court in the first place. What we’ve been trying to do for the past several years is to build precedent and build legal cases that other people can cite, because many judges just want to toss these cases out of the courtroom and not allow people to argue the defense in the first place. So getting into the courtroom at all is often the first battle. Beyond that, there are the challenges that always apply to breaking the law and committing nonviolent civil disobedience: it’s scary to get arrested, it disrupts people’s lives, it’s a huge burden on people, and for particular communities and for people of particular identities, it’s really hard to willingly break the law and risk legal consequences with no guarantee that a necessity defense is going to work. In addition to problems for individuals, there has also been a lot of organized resistance to climate activists from private industry, for example around Standing Rock and in pipeline battles in Louisiana and Minnesota. There are a lot of private security firms and surveillance of activists. Companies will often file lawsuits against activists to try and chill their free speech, and especially in the last two or three years, a lot of states have started to pass legislation that applies special legal penalties to people protesting, and in particular to people protesting what they call “critical infrastructure” — things like pipelines, oil facilities, and ports — that imposes much harsher legal sanctions against people who are doing this kind of thing.
Beyond those things which are shifting on the ground, I guess you could say that the climate necessity defense is just one piece among many in a strategy to push for climate justice. If you win a climate necessity case, if we get the climate necessity defense recognized everywhere and people are using it, obviously that’s still not the answer to the climate problem. It’s a series of discrete actions to disrupt the fossil fuel system, but you still need policy change and affirmative action to shut down fossil fuel infrastructure and replace it with clean energy. The necessity defense is of course trying to lead towards that, but it’s not doing it on its own.
In the Climate Defense Project’s mission statement, you argue, “It isn’t just that the climate movement needs the legal system...[t]he legal system [also] needs the climate movement.” Can you elaborate on what you mean by that?
The law has been pretty behind when it comes to dealing with the challenges of climate change and global environmental problems writ large. There’s a lot of focus on individual action, individual standing, and a prioritization of private property in our legal system. The kind of energy that climate activists bring to making things a collective issue, to asking these sort of structural questions about why we subsidize cheap fossil fuel energy, is important because the law often doesn’t adequately address the environmental outcomes, or what are often called “externalities,” of these issues. There needs to be a revolution in legal thinking about these issues, and we think that movement lawyering helps to move the focus off of the technicalities and narrow analysis that is often applied in the legal system. A typical legal approach to a climate protest would be to individually assess when and how each individual defendant broke the law, but trying to put the government on trial or bring in evidence of policy problems and why it’s necessary for people to take this kind of action changes the focus. It changes the conversation that you’re having in your legal briefings and in your courtroom, and we think that’s important.
Your book, Beyond Fossil Law: Climate, Courts, and the Fight for the Future, is coming out this year. What are the main arguments of the book?
My book tries to explain the role that the legal system has had in the spread of the fossil fuel system and continues to have in maintaining our use of fossil fuels and the power that the fossil fuel industry has. I’m looking at the roots of laws around fossil fuel extraction as well as the environmental laws that we do have and why they’re not doing enough to fight climate change. Another piece of the book is looking at the criminal apparatus and the use of power by the state and corporations to suppress climate dissent, which is an often underanalyzed and understudied part of environmental law. If we want to have real changes to our energy use, we’re going to have to reverse a lot of the power dynamics under which the legal system is mostly used to impose the status quo and to suppress any change rather than further environmental goals. So that’s part of the book.
To illustrate those ideas, the other half of the book follows the story of a group of our clients, the Valve Turners, who turned off some pipelines and used the climate necessity defense. So that part gets into movement protest, movement civil disobedience, and how those specific defendants as well as others have been able to use the legal system as a way to further the goals that I talk about in the more analytical side of the book.
You helped students at Fossil Fuel Divest Harvard file a complaint last month with the Massachusetts Attorney General’s Office arguing that Harvard University’s investments in fossil fuel industries are illegal. What is the argument of the complaint and what do you see as the prospects for its success?
The argument of the complaint is that there’s a legal violation when trustees of a university use university funds to further global warming and promote climate catastrophe. The idea there is that in every state, there are laws governing how you can use charitable funds, and whatever a university collects from donations is a charitable fund because they’re nonprofit institutions. So they’re supposed to be using their money not just to make money and grow the endowment, but also to further the charitable purposes of the institution. At a place like Harvard, or any other university, that means promoting education, promoting scientific research, and, because they’re nonprofits, not harming the public. There’s a pretty clear contradiction between that legal duty and giving money to companies whose entire business model is premised on the idea that we’re going to keep extracting and burning fossil fuels, and we know exactly where that road leads. So these complaints are sent to the state attorney general, who has oversight over that kind of investment activity. The attorney general usually is the person who is supposed to investigate these kinds of things and make sure the law is applied, and we think the law hasn’t been applied the way it should be. We think the legal case is pretty clear. So we’re giving all this evidence to the attorney general and asking her to open an investigation and issue some sort of enforcement order to require Harvard to not use those funds in such a detrimental way.
In terms of the prospects for success, it’s a novel strategy so there’s not much precedent to understand exactly what the attorney general might do. We do think there’s a really strong legal case for the reasons I just mentioned, and also because the law around environmental and climate policy has changed, even as opposed to five years ago. There’s so much policy, especially in states like Massachusetts, around carbon neutrality and reducing the use of fossil fuels at a state-wide level, and there’s no way that can happen with the investment decisions these institutions are making. So we think that all of those factors combined make it maybe a little likelier than not that the attorney general will say, “Yes, we’ve had this law lying on the books that we haven’t been using or applying — let’s apply it.” We all know that this kind of investment conduct cannot be happening twenty or thirty years down the road, so we think it’s time for the attorney general to do that now. It’s a little unclear, though, because the attorney general keeps her cards close to the vest and doesn’t really let us know what her office is going to be doing, so we have no real immediate insight on when that might happen. But we’re doing it at Harvard and at some other schools too. We think that as more of these complaints crop up, it’s likely that people will start to apply the law in the spirit in which it was written.
After working for several years as a lawyer, what made you decide to get a Ph.D. in comparative literature? And what role do you think the study of literature can play in engaging with something like climate change?
I think the legal activism and the literary scholarship overlap a lot because we’re at a historical moment where the climate crisis is producing a crisis in our values, our institutions, our ways of thinking about what it means to be human and live on the planet and what our historical trajectory will be over the next hundred years. I think it’s really interesting and important to use literature and philosophy to think about how societies, writers, artists, and thinkers have responded to crises like this in the past and what it might actually mean to adopt new ways of looking at the world and new relations between humans and nonhumans. That’s something that’s going to take a really long time, of course, and so one side of the problem is more immediate: practical social movement activism and legal change. But the ideas that go into those kinds of shifts, the things you can say to people to try to convince them to do that, the historical sources you draw upon, that’s going to depend upon a different kind of thinking and a different kind of scholarship and looking at how we think about what it means to be human and belong to an environment. None of that just happens from policy. So I think they’re two sides of a coin. I’m interested in the same questions on both sides, and they supplement each other in a nice way between the more practical and the more theoretical. I just really enjoy both types of work too, and it’s nice to be able to balance both types of activity.
How has being part of LEAP shaped your time at Yale?
I actually think LEAP is an extremely important endeavor for exactly the reasons I was just mentioning. It bridges the gap a little bit between the ivory tower theorizing about these things, and efforts to actually catalyze solutions to them, which I think is the coolest place to be. In LEAP I’ve learned a lot from attorneys and law students who are way more in the weeds than I’ve ever been around policy and who are looking at state-level and local-level changes or understanding the machinations of the factory farming industry or laws around land use. There are so many good people at Yale. It’s amazing to learn from all of them. Having LEAP workshops where you bring together a music student and someone interning for the Sierra Club, for example, are the kinds of conversations you want to have because you’re bringing together people from totally different worlds. So that’s the biggest benefit — bringing together people with an ethical commitment to the same issues, but who come at it from totally different sides. I think about climate change as in many ways a conceptual crisis, and there are no obvious solutions. A lawyer is not going to solve it on their own. A philosopher is not going to just come up with a philosophical solution either. Having it all combined is the most fruitful way for sure.
By Jack McCordick ’22 YC
