The Legal Case

Ken Ward and Jay O’Hara were arraigned in October 2013 on four charges in connection to their May 2013 coal blockade at Brayton Point: disturbing the peace, conspiracy, failure to act to avoid a collision, and negligent operation of a motor vessel. They were scheduled to stand trial on Monday, September 8 and Tuesday, September 9.

On Monday, September 8, DA Sam Sutter announcing that he was dropping criminal charges and made a statement in support of Ken and Jay.

Ken and Jay and their lawyers Matt Pawa and Joan Fund had planned to use a groundbreaking necessity defense to argue that the lobster boat blockade was justified in light of the imminent threat of climate change.

More information about their planned necessity defense is below.


Our goal in going to trial, and for the original action, is to show to the world that the climate crisis is real and bold action is required to achieve the deep emissions reductions the science says we need for a stable planet.  This is an opportunity for the climate movement to drive home, in a court of law, the urgency and necessity of dramatic steps to curb carbon pollution to mitigate the global climate crisis, and to inspire others to take higher risk direct action to build a powerful climate movement capable of achieving that goal.

Legal Strategy

Ken and Jay’s intent is to not dispute the facts of being anchored in a lobster boat in the Brayton Point ship channel, but to seek to prove the necessity of their doing so. Jury instructions for Massachusetts courts require that “Three factors must be present for a necessity defense to apply:

  • First: That the defendant was faced with a clear and imminent danger, not one that was debatable or speculative;
  • Second: That the defendant reasonably expected that his (her) actions would be effective in directly reducing or eliminating the danger; and
  • Third: That there was no legal alternative which would have been effective to reduce or eliminate the danger.”

In answering these three challenges, by our own testimony and best available expert witnesses, we are offered an opportunity to get to to the very essence of the climate dilemma, to articulate why legal avenues are inadequate to address this threat, and to tell a story which emboldens and energizes the climate movement.