concurring. While I agree with the result reached by the majority, I am unable to agree with their reasoning. As I see it, the sole issue raised by this appeal is whether the trial court erred in not allowing the defendants to present the defense of necessity.
For the purposes of this concurrence I briefly restate the relevant factual background. The convictions under review arose out of a peaceful anti-nuclear demonstration conducted on the property of Vermont Yankee Nuclear Power Station in Vernon on October 8, 1977. Although the power station had been shut down for six to eight weeks prior to the demonstration, it was about to be refueled and recommence operation. Based upon their belief that nuclear power presented real and substantial dangers, defendants blocked the entrance to the power station to prevent its further operation.
At trial defendants sought to raise the affirmative defense of necessity, arguing that they were faced with a choice of evils — either violate the literal terms of the law or comply with the law and allow the commission of a more egregious wrong, i.e., the proliferation of nuclear power — and that they chose the course which would result in the least harm to the public, even though it meant violating the criminal law. The trial court refused to allow the defendants to present the defense, stating that it was not available “in Vermont at this time.”
Necessity has long been recognized at common law as a justification for the commission of a crime. See, e.g., United States v. Ashton, 24 F. Cas. 873 (C.C.D. Mass. 1834) (No. 14,470); The William Gray, 29 F. Cas. 1300 (C.C.D.N.Y. 1810) (No. 17,694); Chesapeake & Ohio R.R. v. Common*27wealth, 119 Ky. 519, 84 S.W. 566 (1905); State v. Jackson, 71 N.H. 552, 53 A. 1021 (1902). And, although the defense has not been explicitly recognized in Vermont in the context of a criminal prosecution, it has been accepted in the law of torts, Ploof v. Putnam, 81 Vt. 471, 71 A. 188 (1908). 1 see no reason why the defense should not be recognized in the criminal law context. “The principle involved is one of general validity; . . . and there is even greater need for its acceptance in the law of crime.” Model Penal Code § 3.02, Comment 3 at 7 (Tent. Draft No. 8, 1958). Although this holding is implicit in the majority opinion, I would make it explicit.
The defense of necessity proceeds from the appreciation that, as a matter of public policy, there are circumstances where the value protected by the law is eclipsed by a superseding value, and that it would be inappropriate and unjust to apply the usual criminal rule. See generally W. LaFave & A. Scott, Handbook on Criminal Law § 50 (1972). The balancing of competing values cannot, of course, be committed to the private judgment of the actor, but must, in most cases, be determined at trial with due regard being given for the crime charged and the higher value sought to be achieved.
Determination of the issue of competing values and, therefore, the availability of the defense of necessity is precluded, however, when there has been a deliberate legislative choice as to the values at issue. See United States v. Kroncke, 459 F.2d 697, 701 (8th Cir. 1972); State v. Dorsey, 118 N.H. 844, 846, 395 A.2d 855, 857 (1978); Model Penal Code, supra, § 3.02, Comment 1(b) at 6; W. LaFave & A. Scott, supra, at 382. The common law defense of necessity deals with imminent dangers from obvious and generally recognized harms. It does not deal with nonimminent or debatable harms, nor does it deal with activities that the legislative branch has expressly sanctioned and found not to be harms. State v. Dorsey, supra, 118 N.H. at 846, 395 A.2d at 857 (citing G. Williams, Criminal Law: The General Part § 232, at 729 (2d ed. 1961)).
Both the State of Vermont and the Federal government have given their imprimatur to the development and normal operation of nuclear energy and have established mechanisms for the regulation of nuclear power. See, e.g., 18 V.S.A. *28§§ 1652-1658, 1700-1702; 3 V.S.A. §§ 8116a-8117; 10 V.S.A. §§ 6501-6504; 42 U.S.C. §§ 2011-2296, 5801-5891. Implicit within these statutory enactments is the policy choice that the benefits of nuclear energy outweigh its dangers.
If we were to allow defendants to present the necessity defense in this case we would, in effect, be allowing a jury to redetermine questions of policy already decided by the legislative branches of the federal and state governments. This is not how our system of government was meant to operate.
I express no opinion as to the relative merits or demerits of nuclear energy, nor do I question the sincerity of the defendants’ beliefs. All that I would hold is that this Court is not the proper forum to grant defendants the relief they seek. Defendants still have the right to try to induce those forums that have made the policy choices at issue today to reconsider their decisions. But until that time I feel constrained to follow the law as it is, not as some would like it to be.
In my opinion the majority puts the cart before the horse. It measures the offer made against the requisite elements of the defense of necessity and concludes that the defendants failed to show a likelihood of imminent danger; yet it reserves judgment on the legislative policy exception to the defense. It is illogical to consider whether the necessary elements of a defense have been shown before determining whether the defense is even available in the particular situation.
The dissent, on the other hand, assumes that defendants’ offer was sufficient to show not only imminent danger but also a failure of the regulatory scheme. I cannot agree with this assumption because the offer failed to show a danger not contemplated by the legislative scheme. The legislative framework was set up to deal with the very situation defendants offered to prove “might” happen. But because neither the state legislature nor Congress acted to shut down the power plant based on speculative possibilities does not, in my opinion, give rise to the questionable inference that there was an emergency which the regulatory scheme failed to avert. The dissent in reaching the conclusion that defendants’ offer was sufficient has, in my opinion, “stretched the rigging to arrive at a result which is not warranted on the record.” *29Federal Land Bank v. Pollender, 137 Vt. 42, 49, 399 A.2d 512, 517 (1979) (Billings, J., dissenting).
Since defendants’ defense of necessity was foreclosed by a deliberate legislative policy choice, there was no error on the trial court’s part in not allowing the defense to be presented.