Amanda Fowle is the Assistant District Attorney who asked a Plymouth, Massachusetts District Judge on October 23, 2014 to incarcerate 3 grandmothers for 30 days for trying to plant flowers on the grounds of the Pilgrim nuclear power plant on Mother’s Day.
- The crime was trespass.
- The defense was the common law doctrine of necessity.
- The choice was Amanda’s.
She could have taken the path of her colleague, Bristol County Assistant District Attorney Sam Sutter, whose assignment was to prosecute Jay O’Hara and Ken Ward for boarding a boat (named Henry David T.) last year and interfering with the arrival of a barge bearing 40,000 tons of coal bound for the Brayton Point power plant (once owned by Dominion) on Narragansett Bay, New England’s largest.
Their act of civil disobedience, in the spirit of Massachusetts native Thoreau, was to dramatize how local acts of burning coal contribute to the major problem of global warming.
O’Hara and Ward stood accused of conspiracy, motorboat violations and disturbing the peace.
Sutter not only dismissed the most serious charge of conspiracy and settled the others for $2,000 fines as the trial was to commence. He said he’d put his own body forward by joining the defendants at the September 21 Climate Change march in New York City.
“Protest works,” Sutter explained. “Indeed protest may be the only thing that can save us. “
Over at Plymouth District Court, Amanda made a different choice: in a spitfire oration, she demanded four convictions and the slammer for Diane Turco, Sarah Thacher and Susan Carpenter and a fine for Mary Conathan, a first-time “offender.”
The women maintained their act of civil disobedience was necessary to protect their children and grandchildren from exposure to Pilgrim’s continuous planned releases of airborne radioactive isotopes that cause cancer, genetic mutations, birth defects, miscarriages, stillbirths and much, much more.
As their expert witness, Dr. Helen Caldicott, told the court, it takes just one hit by ionizing radiation to a single cell on a microscopic level to wreak havoc on the most vulnerable – women, little girls and developing fetuses.
The necessity defense requires proof of three elements: the defendants acted to avoid a significant risk of harm and the harm avoided was greater than that caused by breaking the law. No problem there: Fowle did not seriously challenge the women on these points.
The third element of proof is the clinker: No adequate lawful means could have been used to avoid the harm.
Dr. Helen Caldicott, who has devoted her life to the cause of a nuclear-free planet on medical and moral grounds, was asked if the women and their families could avoid the harm.
“Yes,” she told the filled courtroom. “Close the reactor.”
Amanda argued the grandmothers had made progress pursuing legal redress to shut Pilgrim down by meeting with the Governor and other elected officials to press their cause and therefore their necessity defense was futile on the third element.
But here’s the problem with Amanda’s argument: there is no “legal” means to shut Pilgrim on health and safety grounds.
The 1954 Atomic Energy Act, as interpreted over the past 50 years, charts the course for installing a nuclear power plant and keeping it running no matter what. It does not, however, provide a path or legal authority to shut one down forever for reasons of public health and safety. And in fact the U.S. Nuclear Regulatory Commission has never ordered the permanent shutdown of a nuclear power plant on grounds of public health and safety, nor has any court, president, senator, Congressperson or governor.Where nuclear power plants have shut down, the decision has always been made by the owner/operator on grounds of corporate economics.
And so Amanda’s argument doesn’t hold water: the Pilgrim Four lack the legal means to shutter Pilgrim because that decision is for Entergy and Entergy alone to make. Entergy is in practical effect the sovereign of Pilgrim. Entergy answers neither to the people nor the government on the ultimate question. That could change only if Congress were to amend the AEA Act to give the states power to shut their nukes on grounds of public health and safety.
As Amanda addressed Judge James Sullivan, she ridiculed the conscience-driven women.
She said their protest was a disgrace to their children and they should stop their outlaw conduct.
“This is a court of law,” she snapped. “This has to end.”
Amanda could have ended it another way: by asking the judge to dismiss the charges on grounds the four defendants lack a legal remedy to avoid the risks of living in the shadow of Pilgrim.