On a Tuesday morning in late August, Rosemary Penwarden protested climate inaction in New Zealand. She sat down during rush hour traffic on the main road linking Wellington Airport to the capital’s city center. Joined by two other protesters from the climate action group Restore Passenger Rail, Penwarden was hoping to draw people’s attention to the climate crisis and the need to expand public transportation networks around the country.

She used a “secret recipe”—which included sand—for the glue that fixed her hand to the road. It took several police officers and a fire crew to detach. She hoped her actions wouldn’t put her in prison. But she was breaching bail conditions from a previous climate protest-related arrest, so she knew it was a risk.

“We are heading for a three to four-degree world, which means the end of civilization as we know it,” she said. “So for me, getting arrested is a pretty tiny thing. I felt that sitting on the road was far less criminal than our leaders allowing us to go over the cliff we’re headed for.”

The next day, Penwarden was in Arohata’s women’s prison just north of Wellington. She had been charged with endangering transport—a serious criminal offense that carries a maximum penalty of 12 years imprisonment—and remanded in custody pending her next hearing. 

Six days later Jen Olsen, a 63-year-old healthcare worker, was also denied bail after staging a protest that blocked citybound lanes on another central Wellington road. On September 8th, a third protestor, Alex Cockle, was ordered to remain in Rimutaka Prison until his next court date nearly two months later. His crime: scaling a gantry to hang a protest sign over the motorway heading into the city.

Penwarden, Olsen and Cockle are believed to be New Zealand’s first climate activists to be held in custody following arrest. 

“This is a historic moment,” said James Cockle, a spokesperson for Restore Passenger Rail. He believes police are pursuing the charge of endangering transport to deter them. The group has staged similar protests in the past, including blocking roads at rush hour. Those led to charges of criminal nuisance or trespass, which have substantially lower consequences. 

According to Kris Gledhill, a professor of law at Auckland University of Technology, the current charge is disproportionate to the offense. “It’s designed for people who do awful things like cutting the brakes on a car,” he said. “It’s completely over the top when it comes to what’s going on here.”

But a lack of options may have driven police to the charge, he added. The comparatively minor charges used previously were not deterring other climate activists taking similar actions. And under New Zealand law, there is no middle-ground offense.

That’s because New Zealand has not followed in the steps of several countries trying to quell disruptive protests. In an increasingly global trend, state and federal governments across the U.S., U.K., Australia and Europe have passed legislation to tackle obstructive protest techniques. However, whether they work is yet to be seen—so far activists appear to have been emboldened by the changes.

Stamping Down on Disruptive Action

At least 45 U.S. states have passed or introduced legislation restricting the right to protest since 2017, according to the International Center for Not-for-Profit Law. Many of these laws target environmental activists in particular.

For example, people who protest near pipeline construction sites in Louisiana now risk up to five years in prison. In Oklahoma, organizations that “conspire” with activists who trespass near oil or gas pipelines are liable for up to $1 million in fines.

An Alabama law passed last year expanded the definition of “critical infrastructure” to include pipelines and mining operations, protecting these sites from disruption. In Arkansas, a law expanding penalties for protests around oil and gas pipelines now leaves individuals liable for up to 6 years in prison and a $10,000 fine.

Over in the EU, both the Council of Europe’s commissioner for human rights and the U.N.’s high commissioner for human rights have called for an end to harsh crackdowns on climate activists. Protests in Germany, France, Italy, Sweden and the Netherlands have faced fines up to 40,000 euros or multi-year prison sentences. Some have even been arrested for sedition—inciting a rebellion—before a protest even takes place.

Meanwhile, in the U.K., a statute passed in March massively expands authorities’ powers to stop, prevent and punish environmental protests.

Under this law it is now a criminal offense to “lock on”—attaching oneself to something in a public place with intent to cause disruption. And police were provided with expanded powers allowing high-ranking officers to authorize a “suspicionless” stop and search if they “reasonably believe” that an offense disrupting public order may be committed. 

In Australia, at least four of seven states have passed laws that increase penalties for protest-related offenses, with Queensland also having a “lock on”-based offense.

These laws all come on the back of an increase in high-profile demonstrations by climate activists. Groups like Just Stop Oil and Extinction Rebellion have taken to blocking busy roads and large infrastructure plants as a sure-fire way to gain attention for their cause.

“Our protests are escalating because the climate crisis is escalating, and the government’s response is not proportionate to the threat that we’re facing,” said Violet Coco, a prominent Australian climate activist who has been arrested 32 times for her protest activities. She has witnessed official responses become increasingly harsh, which she attributes to a conservative political climate being influenced by the pressures imposed by climate change. “Resources are becoming more scarce, and it’s increasing people’s desire to cling on to what they have,” she said. 

According to Catalina, an activist with Dernière Rénovation who declined to reveal her full name, the harsh responses are clear attempts at repression. Dernière Rénovation—a direct action group seeking climate justice in France—is part of A22, an international coalition of activist organizations that also includes England’s Just Stop Oil and New Zealand’s Restore Passenger Rail. Some of their higher profile protests have included disrupting sports events, like the French Open and the Tour de France. 

“When we began, we were held in custody or issued legal warnings,” she said. “But now we are having to pay fines. That’s a peculiarity of France—they repress us from a monetary perspective.”

These fines, issued to violent and non-violent protestors alike, quickly ramp up from hundreds to thousands of euros, but they do not stop the demonstrations, Catalina said. “We use a lot of different tactics in our protests, but the core of it is always to be non-violent and disruptive. We know that we will get arrested and we assume that we will face consequences, but the most important thing is to get climate justice.”

Failing Deterrents

As officials’ tolerance for disruptive climate action wanes, these new charges and penalties show a clear effort to deter protestors from such actions. Leaders have spoken out against demonstrations that detract from economic activity, or generally get in the way of society’s functioning. In some places, activists are painted to be villains—extremists who are trying to interrupt everyday peoples’ lives.

“We cannot have protests conducted by a small minority disrupting the lives of the ordinary public,” UK Prime Minister Rishi Sunak said earlier this year. “It’s not acceptable and we’re going to bring it to an end.”

Yet in many jurisdictions, the attempts to deter environmental protesters are not working, as hundreds of activists have exhibited a desire for climate justice that overrides the fear of consequences.

Earlier this year in Sydney, Violet Coco spent nearly eight months under house arrest—with a strict curfew—after she was arrested for blocking a lane on the Sydney Harbour Bridge. “For the first month I was locked in my one-bedroom apartment with no outdoor area, and with non-association conditions for my whole community,” she said. “As you can imagine, that made me very sick.” 

She was charged with two serious offenses—using an unauthorized explosive device and encouraging the commission of a crime—because she held a lit emergency flare and live-streamed the protest.

Although Coco claims the charges were excessive, and initially fought them, the strict conditions wore Coco down. She eventually changed her pleas from not guilty to guilty and was sentenced to 15 months in prison with a minimum non-parole period of eight months. But after a court found her sentence was based partly on incorrect information provided by the police, she was released in March with a 12-month “good behavior bond” that limits the types of activities and actions she can engage in.

She first violated that bond in April by protesting a coal train. “They gave me another good behavior bond for another 12 months,” she said of her subsequent court appearance. “So when I break that, I’ll go in front of the court again, and again and again until eventually they put me back in prison.”

Asked if it was her intention to keep breaking the bond, Coco said, “it is my intention to get climate justice.”

Back in New Zealand, Penwarden’s arrest was her second significant run-in with the law this year. In June, she was found guilty of forgery—an offense that carries a maximum sentence of 10 years imprisonment—for sending a satirical letter to speakers at an oil industry conference that claimed the event was canceled. 

“We are deeply concerned at the rapidly accelerating social and political changes engulfing us, highlighted by many of our own children preparing to strike from school to demand a safe future. … Despite our best efforts at secrecy, activists have discovered this year’s conference and were yet again planning noise and disruption. But there is a silver lining to all of this: we will not be there to listen to that incessant chanting.”

She was sentenced on October 2 to 125 hours of community service. But as the subsequent arrests of her fellow protestors have proved, Penwarden’s arrest and punishment have done little to deter them. If anything, her run-ins with the law have energized Restore Passenger Rail’s members, who have staged new protests on Wellington’s streets at a frequency not seen before in the city.

CoCo finds it frustrating, she said, that the size and frequency of demonstrations often grow more after a protester is treated harshly by the courts than they do for their original cause, which she has also seen happen in Australia. “People become more courageous when it comes to fighting for their freedoms, than they are fighting for the habitability of our planet,” she said. But anything that gets people outside and demonstrating is a win for climate justice, she added.

For Catalina, the increasing repression may even be a good sign. “It just means the government fears us,” she said. “When they make special efforts to punish your group for taking action, you know they’re taking you seriously. And we can use that to motivate people.” 

This worked in the U.K. earlier this year, when nearly 120 lawyers were driven to sign a declaration stating they would not prosecute peaceful climate protestors or act for companies pursuing fossil fuel projects, despite facing potential professional disciplinary consequences for their refusal. Writing in the Guardian in March Jolyon Maugham, a key signatory, explained his reasoning.

“The scientific evidence is that global heating, the natural and inevitable consequence of its actions, will cause the deaths of huge numbers of people,” he wrote. “The criminal law should punish this but it does not. Nor does the law recognise the crime of ecocide to deter the destruction of the planet. The law works for the fossil fuel industry—but it does not work for us.”

Potential Changes to the Law

New Zealand is facing a potential change of government next week, and some protestors are concerned that it could come with a new law to crack down on demonstrators. A member of the opposition party currently has a bill on the ballot in Saturday’s election that would create a new offense for obstructing major roads, tunnels or bridges. 

If that does happen, it would be a clear signal from Parliament that it sees the protestors’ actions as unreasonable. But it could also set up a legal battle over the protest issue at the highest levels of the nation’s government.

“Our Supreme Court has ruled that as a democratic society we’re expected to tolerate a bit of disruption, so long as it doesn’t become disorderly,” said Gledhill, the law professor. “But if a new offense was introduced as a government bill, then there’d be a Bill of Rights Act vetting and we’d see whether the Attorney-General believed it was a disproportionate restriction on the right to protest.”

Restore Passenger Rail activists don’t show any sign of backing down, regardless of what happens with the bill or the legal test it could spark. New Zealand has a strong history of protest, and they intend to continue that.

“None of the civil liberties that we enjoy today were won by handing out leaflets or waving a flag on the side of the road,” James Cockle said. “They were all won through civil resistance of some kind. We believe it is an essential part of our history and our heritage, and it’s something we need to continue to do.”