No “necessity” defence for environmental activist in Utah case

By: Amelio The · November 17, 2009 · Filed Under Criminal Law, Environmental Law · Add Comment

A Utah District Court judge ruled yesterday that environmental activist, Tim DeChristopher, would not be able to present a defence of necessity at the trial where he faces charges for fraud and for violating the Federal Onshore Oil and Gas Leasing Reform Act.

Tim_DeChristopher1231394118 Tim DeChristopher

On December 19, 2008, DeChristopher participated in an oil and gas lease auction, where it is alleged he made bids not only to raise lease prices, but also to win leases he had no intention of paying. In that auction, DeChristopher won fourteen leases covering 22,000 acres, and totaling $1.7 million USD.

His actions were an attempt to prevent what some groups saw as a midnight pass by the outgoing Bush administration for the exploitation hundreds of thousands of acres of pristine land in Utah. When charged, DeChristopher attempted to argue necessity to defend his actions. To head off the media circus that surely would have sprouted had he been able to bring global warming in the courtroom, government attorneys filed a motion to prevent DeChristopher from presenting the defence.

In her ruling yesterday, Judge Dee Benson granted the government’s motion, holding that DeChristopher’s offers of proof did not meet any of the requirements for necessity.

In the U.S. Court of Appeals for the Tenth Circuit – of which Utah is a part – the defence of necessity has four elements. The defendant must have:

(1) chosen the lesser of two evils,
(2) acted to prevent imminent harm,
(3) reasonably anticipated a direct causal relationship between his conduct and the harm to be averted, and
(4) had no legal alternatives to violating the law.

Judge Benson found that (1) the “greater harm” DeChristopher feared was too speculative, (2) the harm was not imminent, (3) there was an insufficient causal relationship between DeChristopher’s actions and the harm to be averted, and (4) that a legal alternative did and does in fact exist (the leases in question are also currently the subject of an ongoing lawsuit (Southern Utah Wilderness Alliance v Allred, No. 08-2187, 2009 WL 765882 – for those with Westlaw access).)

This Utah District Court ruling stands in contrast to a UK case last year, where jurors accepted the analogous “lawful excuse” defence asserted by six Greenpeace activists. The activists were cleared of charges stemming from £35,000 worth of damage they caused to a coal-fired power station.

NY Times article
DeChristopher bidding at auction
Judge Benson’s ruling

Post tags: choice of evils, defence, Gas, lawful excuse, Leases, necessity, oil, Tim DeChristopher, Utah

Shell & The Elephant In The Room

By: Ainsley Brown · June 10, 2009 · Filed Under ADR/Mediation, Civil Procedure, Ethics, Politics · Add Comment

First posted on Commercial Law International on June 9, 2009.

By Charles Wanguhu

A report by the Economist Intelligence Unit indicates that protecting a firm’s reputation is the most important and difficult task facing corporations. With the development of global media and communication channels, managing reputational damage is seen as crucial with events undertaken in even the remotest areas affecting the international brand of a corporation.

For Shell the stark reality of reputational damage is all too clear. After years and years of denial and expressing its innocence of the Ogoni affair (it still maintains its innocence), Shell has decided to settle a case brought against it out of court for a sum of 15.5 Million US $. The lawsuit had accused the company of colluding with Nigeria’s former military regime over the execution of Ken Saro-Wiwa and other peaceful anti-oil protesters.

Like Nike before it Shell remains in many minds as the poster child of a lack of corporate responsibility especially in big multinationals. The Saro Wiwa case is largely sited not only in commercial classrooms but across NGO conferences worldwide. Multinationals are viewed as bulldozing their way with the help of corrupt and dictatorial regimes to fulfill their interests with complete disregard to vulnerable communities.

The perception of Shell as the irresponsible corporate persists despite the fact that it has invested millions in engaging communities in areas that it works in and has increasingly taken on human rights in its business models and stakeholder engagement strategies.

still life about the concept of the nostalgy

In response to the case filed Malcolm Brinded, Shell’s executive director for exploration and production, was quoted,

“While we were prepared to go to court to clear our name, we believe the right way forward is to focus on the future for Ogoni people, which is important for peace and stability in the region.”

The settlement could be seen as a magnanimous move by Shell in some quarters with some already hailing the move as groundbreaking in terms of holding corporations accountable. However when looked at broadly the settlement will be seen as a coup for Shells PR team: instead of having weeks, months or even years of a contested trial where Shells actions or lack of thereof would be once again stirred up in everyone’s mind globally, a quick settlement offers a quick escape route.

All in all $15.5Million may well be considered a bargain when factoring in legal costs, reputation risks and lost revenue. There could well have been some champagne popped at Shell HQs but am sure downstairs in the legal department the wait is on with baited breath to see whether the floodgates have been open.