Power to the People is a column by Donald M. Kreis, New Hampshire’s Consumer Advocate. Kreis and his staff of four represent the interests of residential utility customers before the NH Public Utilities Commission and elsewhere.
By Donald M. Kreis, Power to the People
Remember the time a famous architect secretly designed a public housing project, and then blew the place up because the complex was not built to his specifications?
Of course you don’t. It didn’t happen.
If the story sounds familiar it’s probably because you read The Fountainhead by Ayn Rand, likely as a brooding and disaffected teenager. Architect Howard Roark’s act of violent civil disobedience is the climax of Rand’s epic novel about individualism thwarted by a society committed to mediocrity while slouching toward socialism.
Maybe that’s why it was the Arthur L. Irving Institute for Energy and Society at Dartmouth College, and not the school’s English Department, that sponsored the lecture I heard recently about pressing the teachings of Ayn Rand into service in quest of doing something about climate change.
Calling his talk “Ayn Rand’s Climate Moment,” Rutgers University Anthropologist David McDermott Hughes used his Dartmouth gig to propose that climate activists find common ground with people who tend to revere the creator of The Fountainhead. He was referring, of course, to New Hampshire’s libertarian community.
Hughes has been poking around New Hampshire of late, conducting what he calls “speculative ethnography.” His speculation has to do with the common ground Hughes envisions between climate activists (particularly the four who were convicted after a jury trial in March of trespassing at the coal-fired Merrimack Station in Bow) and the state’s ever-more-visible cadre of libertarians.
The anthropologist is not talking about the libertarians in the Legislature. Hughes has no use for the “ceaseless contradictions” implicit in being elected to a lawmaking body when you basically think we shouldn’t have a government.
Instead, Hughes is talking about the kind of grassroots libertarian who does things like the antics in Keene nine years ago. Some libertarian activists figured out where the parking enforcement officers would be so they could walk a few steps ahead of them, feed quarters into expired parking meters, and thus thwart the issuance of parking tickets and with it the muscular exercise of state authority.
According to Hughes, stunts like that are “prefigurative.” Social scientist Carl Boggs coined the phrase “prefigurative politics” to describe political acts that are self-executing – i.e., as Hughes said, “you achieve the goal immediately by doing the thing” as opposed, say, to waiting for the Legislature or some regulatory agency to agree with you.
What sort of prefigurative politics does Hughes have in mind when it comes to decarbonization? Exactly the thing that led to the trespassing convictions already mentioned. In that case it involved physically preventing a train from getting to Merrimack Station so it could drop off a load of coal to be burned to generate electricity.
And why, you may be wondering, does this anthropologist care about what libertarians would make of such exploits? As Hughes explained at the Dartmouth lecture, and also in the Boston Review recently, it’s because of jury nullification.
Juries are the last bastion of true, unimpeded democracy. In a felony case, the lawyers present evidence of what happened, and the judge provides instructions as to the statute that prohibits some kind of behavior (e.g., trespassing). But then the jury can do whatever it wants. In other words, the jury can ‘nullify’ law with which it disagrees.
So, if the jury thinks it would be unjust to convict the defendant – say, because jurors believe it was righteous and even courageous for someone to block the delivery of coal to Merrimack Station – then the jury can return a “not guilty” verdict. And that would be the end of the case, thanks to the “no double jeopardy” clause of the Fifth Amendment.
Hughes figures that the kind of true libertarian who would run around Keene dispensing quarters in an effort to thwart the local parking authorities would also be amenable to jury nullification of this sort. He stressed that he was under no illusions when it comes to libertarians and climate change.
Rather, according to the anthropologist, a dyed-in-the-wool New Hampshire libertarian would see Merrimack Station and the railway that delivers coal there as, essentially, instrumentalities of the state given the various subsidies and bailouts granted to them. So, Hughes reasons, such a juror would deem the applicable law baloney and vote to acquit.
Thus, the hypothetical libertarian juror finds common purpose with the climate activists. And keep in mind that if only one juror refuses to convict, the defendant is found not guilty and goes home scot-free.
Let’s cut to the chase. Why would ratepayers, and thus a ratepayer advocate like me, care?
Because the anthropologist’s hypothesis is that a de facto “alliance between libertarians and climate activists” could really shut down every last fossil fuel electricity generator, including those that use natural gas. That, he thinks, is what can happen if this jury nullification thing catches on and people figure out they can commit acts of civil disobedience at places like Merrimack Station with no negative consequences to them.
Thus, Hughes foresees a “massive direct-action movement” of the type that toppled the Berlin Wall in 1989 at the end of the Cold War. The idea, he says, is to “make fossil fuels unprotectable.”
I am skeptical. For one thing, the New Hampshire Supreme Court made clear in 2014 that while a jury’s power to acquit a criminal defendant for any reason it likes is “undisputed,” judges are not required to inform jurors of this right.
However, people who care about energy – and that should be all of us – ought to take note of this argument now that it has been made so publicly in New Hampshire. It suggests the extreme lengths that climate activists are willing to go in the face of what they perceive as the system’s intransigence.
Hughes is under no illusions about libertarians; he describes his proposed alliance with them “a strategy of last resort.” According to Hughes, it’s not the 1970s anymore, we have lost our opportunity for “slow and methodical” solutions to climate change, and “we have to come up with a solution as risky as the crisis.”
After hearing Hughes’s lecture, I am no longer puzzled by civil disobedience at or near Merrimack Station. The activists are not trying to change anyone’s mind; they’re doing “prefigurative politics” because they aim to get activities of this sort to catch on until fossil fuel facilities crumble just like the Berlin Wall did.
Do they care about what judges, or legislators, or utility commissioners, or journalists think of that? No, they do not.
That sends a chill down my spine, and not just because I am a lawyer who is part of state government. Is the social compact really that close to fraying, because so many people are that frustrated by government inaction? If so, that’s bad for ratepayers.