LOCAL PROSECUTION IN THE ERA OF CLIMATE CHANGE.

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Date: Apr. 2022
From: Harvard Law Review(Vol. 135, Issue 6)
Publisher: Harvard Law Review Association
Document Type: Article
Length: 11,098 words
Lexile Measure: 2100L

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On May 15, 2013, Ken Ward and Jay O'Hara piloted a lobster boat into the path of a coal freighter, dropped anchor, and for one day delayed the delivery of 40,000 tons of coal to the largest coal-fired power plant (and one of the largest sources of carbon emissions) in New England. (1) After the Coast Guard boarded the boat, the two environmental activists returned to land and were charged with conspiracy, disorderly conduct, and several other counts that threatened them with multiyear prison sentences. (2) Shortly before the trial was scheduled to begin, Sam Sutter, the District Attorney (DA) for Bristol County, Massachusetts, dropped the charges in exchange for $2000 in restitution from each. (3) From the steps of the county courthouse, Sutter stated:

The decision that [we] reached today ... certainly took into consideration the cost to the taxpayers ... but was also made with our concerns for their children, and the children of Bristol County and beyond in mind. Climate change is one of the gravest crises our planet has ever faced. in my humble opinion, the political leadership on this issue has been sorely lacking. (4)

Sutter's decision received immediate praise, with one commentator describing it as "an unusual and rare example of a prosecutor exercising his conscience and using prosecutorial discretion while still upholding the rule of law." (5) But if Sutter was among the first local prosecutors to publicly acknowledge the climate crisis, he would not be the last. During his 2017 campaign for Philadelphia DA, Larry Krasner noted that it was "essential for local prosecutors to vigorously prosecute pollution when the [federal government] refuses to do its duty," and that "the rule of law must remain paramount" even as "we face the prospect of life-threatening disruptions" due to climate change. (6) And while running for Los Angeles DA three years later, George Gascon included environmental justice as a focus of his policy platform, promising to "hold oil and gas accountable for their ongoing actions to fuel climate change" and to crack down on environmental crime. (7)

Despite statements like these, conversations around local prosecution and those around climate change rarely intersect. (8) The climate justice movement has, for the most part, neglected to turn its attention toward local prosecutors, despite growing demand from voters for local climate action. (9) By the same token, scholars and advocates for criminal justice reform have largely overlooked the ways that climate change will affect the criminal justice system. (10) Yet independently, both topics have garnered enormous public and academic attention in recent years. Climate activists have increasingly pushed for large-scale action to combat climate change by decarbonizing the economy. (11) And with the growth of the Black Lives Matter movement, especially in the wake of the 2020 murders of George Floyd and Breonna Taylor, millions have demanded fundamental transformation of the criminal justice system--including by reassessing the role and power of prosecutors. (12)

These conversations can no longer remain separate. It is a near certainty that the...

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Gale Document Number: GALE|A702381250