CLIMATE DIRECT ACTION COMES UNDER FEDERAL SCRUTINY
23 October 2017
•** "U.S. lawmakers ask DOJ if terrorism law covers pipeline activists", by Timothy Gardner, REUTERS, 23 October 2017
for shutting off two Enbridge tar sands pipelines. The decision means they will be able to bring in
EXCERPTS: WASHINGTON (Reuters) - U.S. representatives from both parties asked the Department of Justice on Monday whether the domestic terrorism law would cover actions by protesters that shut oil pipelines last year, a move that could potentially increase political rhetoric against climate change activists.
Ken Buck, a Republican representative from Colorado, said in a letter to Attorney General Jeff Sessions, that damaging pipeline infrastructure poses risks to humans and the environment. The letter, a copy of which was seen by Reuters, said "operation of pipeline facilities by unqualified personnel could result in a rupture the consequences of which would be devastating." It was signed by 84 representatives, including at least two Democrats, Gene Green and Henry Cuellar, both of Texas.
The move by the lawmakers is a sign of increasing tensions between activists protesting projects including Energy Transfer Partners LP's Dakota Access Pipeline and the administration of President Donald Trump, which is seeking to make the country "energy dominant" by boosting domestic oil, gas, and coal output.
Last year activists in several states used bolt cutters to break fences and twisted shut valves on several cross border pipelines that sent about 2.8 million barrels per day of crude to the United States from Canada, equal to roughly 15 percent of daily U.S. consumption.
The letter asks Sessions whether existing federal laws arm the Justice Department to prosecute criminal activity against energy infrastructure. It also asks whether attacks on energy infrastructure that pose a threat to human life fall within the department's understanding of domestic terrorism law. The Department of Justice acknowledged receiving the letter and is reviewing it, a spokesman said.
A terrorism expert said it was ironic the lawmakers referred to the law, which defines "domestic terrorism" as acts dangerous to human life intended to intimidate civilians, but does not offer a way to prosecute anyone under it. David Schanzer, a homeland security and terrorism expert at Duke University, said the lawmakers' request of Sessions "won't have any legal ramifications, but possibly could be used for rhetorical value."
A Minnesota court is considering charges against several protesters suspected of turning the valves on the pipelines last year. District Court Judge Robert Tiffany has allowed the defendants to present a "necessity defense." That means they will admit shutting the valves, but may call witnesses, such as scientific experts, to offer testimony about the urgency of what they say is a climate crisis, activists said.
Note: A pdf of the original October 23 Congressional Letter to Attorney General Jeff Sessions is accessible online. Among the queries is: "Has the DOJ taken any prosecutorial or investigative action against those involved in the highly publicized October 11, 2016 attempted sabotage of four major crude oil pipelines in multiple states? If not, please explain DOJ's reasoning for not pursuing this case."
• VALVE TURNERS RESPONSE TO CONGRESSIONAL LETTER TO DEPT. OF JUSTICE, by Michael Foster, Leonard Higgins, Emily Johnston, Annette Klapstein, and Ken Ward, 2 pages, 9 November 2017.
EXCERPTS: ... we would like to take this opportunity to explain directly to you why nonviolent climate direct action is the last resort in a desperate and necessary effort to avert catastrophic climate change....
• U.S. Justice pledges to prosecute activists who damage pipelines, by Timothy Gardner, Reuters, 10 November 2017.
At present, thanks to fossil fuel industry funded efforts, we the people cannot turn to our federal government for relief in addressing this single greatest threat to our health, wellbeing and security. Our own government has become an occupying force for interests inimical to our welfare. Our history and tradition shows us that in such a predicament, citizens do have a right, indeed, the obligation, to act in our own defense directly and forcefully to address imminent harm. Like those who dumped boxes of tea into the Boston harbor, we take direct action to halt the flow of fossil fuels, the use of which is undermining the conditions that make civilization possible and destroying the web of life which sustains us....
We acted appropriately, peacefully, openly, carefully and with great concern for safety. Congress should do the same.
EXCERPTS: WASHINGTON (Reuters) - The U.S. Department of Justice on Friday pledged to prosecute protesters who damage oil pipelines and other energy infrastructure, a move that could escalate tensions between climate activists and the administration of President Donald Trump. The DOJ said it was committed to vigorously prosecuting those who damage "critical energy infrastructure in violation of federal law."...
• "Should Iowa's Dakota Access pipeline protesters face terrorism charges?", by Kevin Hardy, Des Moines Public Register (Iowa), 840 words, 25 October 2017.
The DOJ did not say whether it would investigate or prosecute the protesters who broke fences in four states last year and twisted shut valves on several pipelines importing crude oil from Canada that carry the equivalent of as much as 15 percent of U.S. daily oil consumption.... Five of the protesters, who say they only turned off valves on the pipelines, responded to Buck this week in a letter saying that their actions were nonviolent and were the "last resort in a desperate and necessary effort to avert catastrophic climate change." States brought charges against the protesters....
But Ward said the Justice Department was going after the wrong parties. "In a sane world, the DOJ would be using its discretion to prosecute pipeline and fossil fuel companies for causing irreparable harm to the planet," he said....
Dozens of members of Congress want U.S. Attorney General Jeff Sessions to consider domestic terrorism charges for protesters who oppose pipeline construction projects, like those who rallied against the Dakota Access pipeline in Iowa.
• RESPONSE POSTED BY CLIMATE DISOBEDIENCE CENTER: "Fossil Fuel Congress Asks Jeff Sessions To Label Climate Action 'Terrorism'", 25 October 2017
In a letter to Sessions this week, 84 members of Congress said that "maintaining safe and reliable energy infrastructure is a matter of national security." They alluded to the national protests sparked by the four-state Dakota Access pipeline, which crosses 18 Iowa counties. While members of both parties signed the letter, no signatures from Iowa's Congressional delegation were included.
In addition to nonviolent demonstrations across the nation most notably in North Dakota near the Standing Rock Sioux reservation opposition to Dakota Access included physical vandalism and trespassing on construction sites. In Iowa alone, hundreds were arrested for protesting on work sites.
"While we are strong advocates for the First Amendment, violence toward individuals and destruction of property are both illegal and potentially fatal," the letter stated.
Changes in legal posturing may come too late for those who broke the law fighting the Dakota Access pipeline, which went into operation this summer.
But law enforcement and elected officials have publicly warned about the long-lasting impacts of the nationwide protests, which have since snowballed into opposition of oil and gas pipeline projects from Florida to Oregon. Across the border in Nebraska, protesters are opposing the revived plan to build the Keystone XL pipeline. Nebraska regulators are expected to decide the fate of that project by November.
In addition to exploring possible terrorism charges, the Congressional correspondence asks if existing laws adequately arm the Department of Justice to "prosecute criminal activity against energy infrastructure at the federal level." It also specifically asks whether Sessions will charge those involved in a multi state effort to shut down pipelines in October 2016.
The GAIN coalition short for Grow America's Infrastructure Now applauded the Congressional effort. That group lobbied hard on behalf of Dakota Access pipeline builder Energy Transfer Partners, arguing that the pipeline would provide jobs and inexpensively and safely move energy across the country.
But pipeline opponents object to such characterizations. "Terrorism is a really heated word and a very specific word in the American conscience right now," said Ed Fallon, a vocal pipeline opponent. "To apply that to folks who even if their tactics might be questionable folks who are concerned about protecting the planet, that's going way too far."
Fallon, a leader of Bold Iowa, kept close watch over the arrests of pipeline protesters in Iowa: He estimates law enforcement across the state made some 400 arrests. Most of the trespassing charges resulted in fines of about $275, he said.
Most of those arrested were protesting peacefully, he said. But some were not: In July, two activists confessed to repeatedly damaging Dakota Access pipeline equipment, including burning at least five pieces of heavy equipment on the pipeline route in northwest Iowa's Buena Vista County.
Fallon disavows such tactics. But he fears that a hard line from federal prosecutors is an overreach that could end up stifling the First Amendment rights of nonviolent protesters. "I think that's the risk that we run here if this pursuit is allowed to run its course," Fallon said....
...The GAIN Coalition formerly known as the MAIN Coalition includes unions, chambers of commerce, manufacturing groups and oil and gas interests. The Iowa Association of Business and Industry is a member.
ABI President Mike Ralston said pipeline protests are one thing, but vandalism is just plain illegal. "We always think the law should be followed," he said.
Still, he said he wouldn't necessarily label pipeline foes as terrorists. "I had not thought of that characterization when I think of what happened," he said. "I do think it's wrong. Not only is it illegal, it's wrong. (But) I guess I hadn't thought about characterizing it as terrorism."
Ralston said he didn't see a big need in Iowa to change how law enforcement responded to anti-pipeline activists. "To the best of my knowledge, every case was handled well," he said. "There were legal ramifications for those who disobeyed the law. So yeah, I'm very satisfied with what happened in Iowa."
EXCERPTS: On October 23rd, 2017, 84 members of congress submitted a letter to Attorney General Sessions regarding nonviolent direct action on crude oil pipelines. The letter, backed by American Petroleum Institute, Association of Oil Pipe Lines, and the Interstate Natural Gas Association of America, is a dishonest effort to smear the climate movement, and fabricate a threat in order to legitimate further criminalization of dissent against one of Congress's largest clients: the fossil fuel industry. Rather than doing their job and protecting current and future generations from civilizational collapse caused by run-away climate change, members of Congress are working to protect their funders at the risk their constituents.
The letter begins the official process of expanding the Patriot Act and domestic terrorism laws to target those who resist fossil fuel infrastructure. The accusation of terrorism hinges on violence to human beings, which has never been even a fringe element of the climate movement. The only violent reference which this Congressional letter could find was Tucker Carlson's creative interpretation of a letter to the editor of a local newspaper in Boulder, Colorado. On that single thread hangs this attempt to defame a mass movement in order to repress dissent and free speech.
Unlike every right wing movement, the climate movement has never engaged in violence against human beings in pursuit of political aims. From colorful marches with hundreds of thousands of people to actions disrupting fossil fuel infrastructure construction and blockades of coal trains and ships, the climate movement has been disciplined and intentional about protecting life. Citizens placing themselves in the path of destruction, placing themselves at risk in order to avert climate catastrophe, cannot be equated with violence.
In order to make their case, these fossil fuel industry supported Representatives make blatantly false statements regarding anti-pipeline activists and their actions. No one has burned holes in active pipelines. Pipeline pump stations have never been tampered with.
Instead of protecting the public from climate change, the largest threat to human well-being in the 21st century, these 84 members of Congress are doing the bidding of those perpetrating the unfolding disaster for short term profit. Representative Ken Buck (R-CO) initiated this letter. "Oil and gas" was the number one industry contributing to his 2016 re-election campaign to the tune of $62,950 (including $10,000 from Koch Industries).
If this attempt to expand domestic terrorism laws is allowed to succeed, activists who resist fossil fuels would spend the rest of their lives in prison. Under "terrorist enhancement" labels, activists would be locked up in facilities that are more repressive than maximum security prisons, such as Communication Management Units. These conditions are torture. The essential message of this Congressional letter is that citizens who stand in the way of the profits of the fossil fuel industry should be tortured. This legislative agenda of increased persecution of activism should be resisted in the strongest possible manner not only by social movements, but also by any legislators who still value the basic freedom of dissent....
That these Congressional Representatives believe it is more important to prosecute citizens attempting to raise the alarm of climate cataclysm among the American people than to prosecute fossil fuel corporations whose products are leading us toward disaster serves only to illustrate the subservience of our government to fossil fuel interests and the necessity of citizens taking action to stop the harm.
Any realistic hope of averting climate cataclysm must take this corruption into consideration, and build a genuine power base outside of the normal legislative advocacy process in order to recapture government by and for the people. In the United States, nonviolent direct action has historically been the most effective force in building such movements and outside pressures. With reasonable access to the legislature and executive functions of government gone, many climate activists hope that the judiciary, with a mandate to operate by fact, may play an important role in bringing about the change needed for a just and livable future.
• "Iron Eyes to claim necessity defense in DAPL case", by Jack Dura, Bismarck Tribune, 24 October 2017.
EXCERPTS: A prominent figure in months-long protests in southern Morton County claims the perceived threat of the Dakota Access Pipeline forced him to commit his alleged crimes. Attorney Chase Iron Eyes, also a Standing Rock Sioux tribal member and North Dakota's 2016 Democratic House candidate, is charged with felony inciting a riot and misdemeanor criminal trespass. He has pleaded innocent. His necessity defense is to be heard Nov. 3 when defense attorney Daniel Sheehan will make the case to Judge David Nelson that the pipeline's impact to Iron Eyes' community forced him to resist the project as he did.
"Given the Dakota Access Pipeline's imminent threat to my tribe's and my family's only water supply, I ultimately had no choice but to resist on the front lines," Iron Eyes said...
Necessity defenses have recently been invoked in other pipeline cases, including Michael Foster, who was convicted this month of crimes related to his shutdown of the Keystone pipeline near Walhalla last year. A judge denied his necessity defense, which claimed the threat of climate change forced him to shut off the tar sands oil pipeline. Meanwhile, a Minnesota judge allowed the same defense for two other "valve turners," who also targeted pipelines last year.
•** Activist on trial wants more time for 'necessity' defense, by Blake Nicoholson, Associated Press, 3 November 2017.
EXCERPTS: ... Iron Eye's one-day trial scheduled for Feb. 8 is likely to be delayed until next summer and likely lengthened to several days. Nelson called Iron Eyes "one of the premier cases" of the 761 arrests made during six months of protests last year and earlier this year. "I'm not going to try to rush this through," the judge said. "We want to make sure this gets done right."
•** Second pipeline opponent will argue for necessity defense, Bismarck Tribune, 16 November 2017. EXCERPT: "HolyElk Lafferty, 38, a Cheyenne River Sioux and Lakota activist, is charged with misdemeanor counts of criminal trespass and engaging in a riot from activities on Feb. 1, the same day as attorney and Standing Rock Sioux tribal member Chase Iron Eyes' arrest...."
Nelson eventually will decide whether Iron Eyes can use a necessity defense. In recent months, judges in Washington state and Minnesota have allowed climate change protesters to use a necessity defense at trial. But judges in recent pipeline protest trials in North Dakota, Montana and Washington have rejected the defense.
•** "Oil pipeline opponent uses 'necessity defense' What is it?, Associated Press story by Blake Nicholson and Steve Karnowski, in Washington Post, 24 October 2017. Also published in Chicago Tribune, L.A. Times, New York Times, ABC News, and more.
EXCERPTS: IS IT RECOGNIZED BY THE COURTS? The U.S. Supreme Court has said it's an "open question" whether federal courts have authority to recognize a necessity defense not provided by law, according to North Dakota District Court Judge Laurie Fontaine. Whether the defense is permitted by law in state courts varies, according to University of Mississippi law professor Michael Hoffheimer. The main argument against the defense is that it gives people who don't like a particular law the chance to break it and then argue it was excusable. The main argument for it is that there might be special circumstances in which there is a justifiable reason for breaking a law....
Defense attorneys also have tried the necessity defense when people Illegally use marijuana because they argued that it was needed to treat a health problem. A 1976 District of Columbia court decision in favor of a person suffering from glaucoma was the first in the country to recognize the defense in a marijuana case, according to the National Organization for the Reform of Marijuana Laws.
The defense also has been used through the years by abortion clinic protesters. In a high-profile case in 2009, a judge ruled against its use in the trial of Scott Roeder, who confessed to killing an abortion-providing doctor in Kansas because he said it was necessary to save unborn children.
It was first used in a U.S. environmental case in 2009 when a climate change activist cited necessity in Utah. Alice Cherry, co-founder of the Climate Defense Project, said it has been used in similar cases in Washington state, New York, Montana, North Dakota and Minnesota. The Climate Defense Project even offers an educational guide on using the defense and says this area of the law is "developing rapidly."...
WHAT MUST BE PROVEN? Legal experts agree the necessity defense is a long shot. To succeed, people generally have to persuade the judge or jury they had no legal alternative to breaking the law. They also must prove they were trying to prevent some imminent harm, and there must be a direct connection between their breaking the law and preventing the harm. Finally, they must prove that breaking the law is less harmful than what would have happened.
HAS IT SUCCEEDED IN ENVIRONMENTAL CASES? Not often. In a Minnesota case, Judge Robert Tiffany is allowing four pipeline protesters to use the defense, but he also said they must clear a high legal bar. Tiffany said the defense applies "only in emergency situations where the peril is instant, overwhelming, and leaves no alternative but the conduct in question." That case is still pending.
A judge in Spokane, Washington, is allowing a 77-year-old Lutheran pastor to use a necessity defense in his upcoming trial stemming from a climate change protest last year. The Rev. George Taylor stood on railroad tracks to protest coal and oil trains that pass through Spokane and their contribution to climate change.
Judges in recent pipeline protest trials in North Dakota, Montana and Washington state have rejected the defense. The Montana judge said he didn't want to put U.S. energy policy on trial, and the North Dakota judge said a reasonable person couldn't conclude a direct cause and effect between the defendant's pipeline protest and climate change.
The Montana case is pending. In both the Washington and North Dakota cases, the protester on trial was allowed to tell jurors of his "state of mind" during the offense, but protesters in both cases were still convicted. In the Washington case, the protester received probation and said he was "heartened, knowing that we are bringing these arguments into the jury system."
• "PUC says Enbridge must disclose Line 3 oil spill projections", Post Bulletin (daily newspaper Rochester, MN), 26 October 2017.
EXCERPTS: ST. PAUL, Minn. (AP) - Enbridge Energy must publicly disclose its projections for potential oil spills from its proposed Line 3 replacement pipeline across northern Minnesota, regulators decided Thursday. The modeling data set includes the probability of large spills at seven water crossings. Enbridge submitted it to the Minnesota Department of Commerce for the project's environmental impact statement but had the agency redact the data from the public version of the document, citing trade secrets and security reasons. Enbridge said the data could be used by "bad actors" intent on damaging the pipeline, thus threatening the nearby environment.
But the Public Utilities Commission voted 3 to 0, with two commissioners absent, to release the spill information. The commissioners agreed with an administrative law judge who determined that the data should be public and that the information is not likely to cause a security threat...
The PUC canceled two public hearings that had been scheduled for Thursday in St. Cloud, citing "logistical and safety issues" after protesters cut short a hearing on the project in Duluth last week. And a judge in Clearwater County this month took the unusual step of allowing four climate change protesters involved in closing valves on two Enbridge pipelines near Clearbrook last year to use a "necessity defense" in their upcoming trials.
•** "Activist on trial wants more time for 'necessity' defense", by Blake Nicholson, Associated Press, in ABC News, 3 November 2017
EXCERPTS: Trial likely will be delayed for an American Indian activist accused of inciting a riot during protests in North Dakota against the Dakota Access oil pipeline, as his attorneys gather more evidence to present a "necessity" defense. Chase Iron Eyes is seeking a judge's permission to use the defense in which a suspect argues a crime was justified because it prevented a greater harm.
Pipeline protesters who have recently tried the necessity defense in other cases in North Dakota and other states have argued that the greater harm they're trying to prevent is climate change due to fossil fuels. Iron Eyes also has said he wants to "stop global climate chaos," but his necessity argument goes further.
Iron Eyes hopes to show that civil disobedience was his only option to resist a pipeline's incursion on his ancestral lands and prevent a threat to the tribe's water supply. He also wants to argue that he was trying to prevent a "civil rights conspiracy" to portray pipeline opponents as terrorists and result in them being treated as such.
Iron Eyes and 73 others were arrested on Feb. 1 after erecting teepees on land that authorities said is owned by pipeline developer Energy Transfer Partners. Protesters maintained they were peacefully assembling on land they believe rightfully belongs to American Indians under old treaties.
Iron Eyes hasn't disputed his involvement, but the Standing Rock Sioux tribal member has pleaded not guilty to felony inciting a riot and misdemeanor criminal trespassing. He could face up to five years in prison if convicted of the more serious charge.
Defense attorney Alexander Reichert during a Friday hearing received permission from Judge David Nelson to request more material from the prosecution, including video taken the day of Iron Eyes' arrest and documents that might give more insight into the efforts of law enforcement and pipeline private security. "They labeled Chase as a terrorist and a jihadist," Reichert said. "Obviously, that came from somewhere."...
Iron Eye's one-day trial scheduled for Feb. 8 is likely to be delayed until next summer and likely lengthened to several days. Nelson called Iron Eyes "one of the premier cases" of the 761 arrests made during six months of protests last year and earlier this year. "I'm not going to try to rush this through," the judge said. "We want to make sure this gets done right."
Nelson eventually will decide whether Iron Eyes can use a necessity defense. In recent months, judges in Washington state and Minnesota have allowed climate change protesters to use a necessity defense at trial. But judges in recent pipeline protest trials in North Dakota, Montana and Washington have rejected the defense.
•** "Congress Works with Big Oil on Letter Suggesting Anti-Pipeline Activists Face Terrorism Charges", by Steve Horn, DeSmog, 3 November 2017, 1350 WORDS.
EXCERPTS: On October 23, 84 Congressional representatives made a splash when they published a letter to U.S. Attorney General Jeff Sessions asking if those engaged in activism disrupting or damaging pipeline operations should face criminal prosecution as an act of terrorism under the USA PATRIOT ACT.
Spearheaded by U.S. Rep. Ken Buck (R-CO) and co-signed by dozens of other, primarily Republican, representatives, the letter pays homage to the First Amendment, while also noting that "violence toward individuals and destruction of property are both illegal and potentially fatal." The letter, covered by severalmedia outlets, was championed by the industry lobbying and trade association, the American Petroleum Institute (API), which said it "welcomed" the letter.
But according to a DeSmog review, API and other industry groups were a key part of bolstering the letter itself. API, along with the Association of Oil Pipe Lines (AOPL) and the Interstate Natural Gas Association of America (INGAA), is listed as among the "supporting groups" on the website DearColleague.us, which tracks congressional letters and their backers....
This letter's publishing comes in the aftermath of last year's major uprising against the Dakota Access pipeline at the Standing Rock Indian Reservation in North Dakota.
Emails and memoranda previously obtained and reported on by DeSmog show that law enforcement and contract public relations professionals described those who participated in the Standing Rock protests as potential "terrorists." Greenpeace USA and activists the organization collaborated with at Standing Rock are likewise being described as partaking in "eco-terrorist" activities in a recent lawsuit filed against the organization for alleged "racketeering" as defined by the Racketeering Influenced Corrupt Organizations Act (RICO).
Importantly, it also follows other anti-pipeline actions by the "valve turners", or those who participated in acts of non-violent civil disobedience to shut down the flow of Canadian tar sands into the U.S. at several pipeline pump stations. The activists affiliated with the Climate Disobedience Center, in those cases, have used the "necessity defense" to say that their activism was the last line of defense they had to halt runaway climate change which could ensue from the combustion of oil and gas flowing through pipelines.
In May, API published its own letter on the issue to the Department of Justice, which addresses the "valve turners" head-on and has a footnote on their activism.
"Investigations and law enforcement actions are a critical element to preventing criminality as well as potential environmental damage," reads the letter, which like the recent congressional letter, pays homage to First Amendment rights. "While we respect individuals' rights to free speech and peaceful protest, robust investigations into whether laws protecting critical energy infrastructure and the environment were broken is a responsible next step in certain situations."...
Gosztola also noticed that the letter in many ways mirrors an article written by the law firm Hunton & Williams in 2016 for its clients, a post which came after the "valve turner" incidents.
"In addition to being subject to common law claims such as trespass, nuisance, burglary, and criminal mischief/sabotage any person who knowingly and willfully damages or even attempts or conspires to damage or destroy an oil or gas pipeline or component may be subject to criminal prosecution under the federal Pipeline Safety Act," reads the law firm's brief. "Beyond civil and criminal liability, individuals damaging pipeline facilities could be investigated and/or prosecuted under other statutes depending on the circumstances, such as the Patriot Act or the Homeland Security Act for domestic acts of terrorism."
Both API and INGAA have, in the past, been clients of Hunton & Williams. The firm also represented many of the country's largest coal companies in their lawsuits against the Obama administration's implementation of the Clean Power Plan, which would have regulated greenhouse gas emissions from coal-fired power plants.
Just two days after the congressional letter was published, the Energy Equipment and Infrastructure Alliance's (EEIA) new "Energy Builders" initiative announced the creation of an "Energy Infrastructure Incident Reporting Center." EEIA is a "community of thousands of locally-based contractor, equipment, materials, and service businesses that support shale gas and oil operations," according to its website. The initiative was also launched as a reaction to pipeline protests which have popped up nationwide. The new database describes its purpose as "tracking and exposing attacks on critical energy infrastructure."
"Incidents of eco-terrorism, sabotage, arson, vandalism, and violence are on the rise as severe actions have become a regular feature of pipeline protests, endangering public safety, the environment, jobs, and leaving taxpayers on the hook for millions of dollars," the database's website explains. "If you observe or hear about an incident of violence, sabotage, illegal trespass, or other opposition misconduct, please describe it briefly here and we'll consider it for inclusion in the database."
Annie Leonard, executive director for Greenpeace USA, decried the creation of the database in comments conveyed to the Associated Press. "Corporations and their governmental enablers are desperate to silence dissent every way they can," Leonard told AP. Leonard also called the new database "more fear-mongering by corporate bullies hoping to see what they can get away with in Trump's America."
'We should be on the offensive' James Hansen calls for a wave of climate lawsuits, by Jonathan Watts, The Guardian, 17 November 2017. Lengthy article describes Hansen's advocacy for a second wave of lawsuits, beyond the 'intergenerational injustice' suits against federal and state governments, and now aiming to "litigate to mitigate" by suing the fossil fuel companies, "the carbon majors."|
EXCERPT pertaining to the Valve Turners: Hansen is a believer in direct action. "I've been arrested five times. The idea was to draw attention to injustice," he says. He has also testified on behalf of others who have lost their liberty during climate campaigns. In January, he will speak in defence of an activist who turned off the tar sands pipeline in North Dakota.
•** "My freedom is on the line to fight climate change, more will follow, by Ken Ward, opinion contributor, The Hill, 17 November 2017.
EXCERPTS: It's fashionable to cast the civic conversation around climate change, such as it is, as a polarized debate between "climate deniers" and "climate believers." That tidy distinction is on display at the Bonn climate talks, where the Trump administration will promote coal, natural gas and nuclear energy as an answer to climate change from the official U.S. office, while a "shadow delegation" of U.S. municipal and state leaders, housed in tents, declare their continuing commitment to the Paris climate agreement. It's a neat, black-and-white story, peopled with stock characters, useful to both sides, and fundamentally untrue.... Even at this late date, there is no credible leadership proposing any plan of climate action appropriate to the scale and speed of the problem. Instead of stark contrast between climate denial and action, what's really on display in Bonn is 50 shades of climate denial....
The crackdown on citizens who stand up to something about climate change continues apace: Earlier this month, U.S. Justice Department responded to a letter spearheaded by Rep. Ken Buck (R-Colo.) and signed by 83 other members of Congress, asking DoJ pointedly why it hasn't prosecuted climate activists, like me, as domestic terrorists. In reply, DoJ pledged to vigorously prosecute those who damage "critical energy infrastructure in violation of federal law."
That could have potential personal ramifications for me. I was one of the five "valve-turners" who, in a coordinated Oct. 11, 2016, action singled out in the Buck letter, closed the emergency valves on all five pipelines carrying Canadian tar sands oil into the U.S. Though Buck and his colleagues would like to brand us as domestic terrorists, we acted responsibly, with great care and concern for safety, to combat the climate change emergency by stopping the flow of the dirtiest, most carbon-intensive form of oil. We have sought to make this case at our trials, via the "climate necessity defense," which argues that our actions were justified by the greater climate harms we're seeking to avoid. In a precedent-setting decision, a judge in Clearwater County, Minn., granted my fellow valve-turners Emily Johnston and Annette Klapstein the right to mount a necessity defense in their upcoming trial
MONTANA TRIAL OF LEONARD HIGGINS
reports begin 16 November 2017
• 'Valve Turner' Trial Starts Tuesday, by Bennett Hall, Corvallis Gazette-Times (Oregon), 16 November 2017. Lengthy article with background details and new quotations by Leonard Higgins, who shut down the tar sands pipeline in Montana.
EXCERPTS: ...Higgins faces a misdemeanor charge of criminal trespass and a felony charge of criminal mischief for closing an emergency shutoff valve on the Spectra Energy (now Enbridge Corp.) Express Pipeline in a remote part of Chouteau County, Montana. A conviction on the more serious offense could bring a penalty of up to 10 years in the state prison at Deer Lodge. None of the valve turners attempted to leave the scene or avoid prosecution for their actions. Instead, each waited patiently to be arrested and then requested a jury trial as a platform to air their views on climate change.
• Protecting us all from climate change is not a crime, Letter to the Editor, by Eileen Beddall, Bozeman Daily Chronicle, 18 November 2017. (Short statement in support of Leonard Higgins' climate action and mention of his Nov 21 trial.)
"The whole action was focused on communicating the emergency that we're in and the failure of government and business to respond," Higgins said, "and the fact that even though we're beginning to turn the tide, it's woefully inadequate to protect ourselves, and certainly our children, from climate change...."
Higgins had hoped to be able to use the necessity defense in his Montana trial, which would have allowed him to argue that his illegal acts were necessary to prevent greater harm from climate change, but the judge in his case refused to allow it. On Saturday, however, he'll get the chance to present that argument in a mock trial on the University of Montana campus in Missoula. Expert witnesses he had hoped to call in his defense, including Tom Hastings from Portland State University and the University of Montana's Steve Running, will speak at the event, where the audience will be asked to act as the jury.
Higgins was recently convicted of trespassing in another case stemming from a climate change protest last year in Anacortes, Washington, where he was fined $250 and ordered to perform eight hours of community service. Despite the outcome, he considers that case a victory for his activism. "What was remarkable was that the judge complimented and praised our efforts in regard to climate change," Higgins said. "I think we changed some people's minds."
•** "Climate Mock Trial: Valve Turner Leonard Higgins Argues the Climate Necessity Defense", announcement of Nov 18 "mock trial", by ClimateDirectAction, to be held at University of Montana, Missoula.
EVENT DESCRIPTION: Three days before he is tried by the State of Montana, Leonard Higgins will stand for a Mock Trial at the University of Montana, Missoula. Denied by the state the opportunity to present the necessity defense, Leonard Higgins will present his climate change case to the Court of Public Opinion....
The defense is prepared to call, for the defense of the planet, the following expert witnesses: University of Montana climate scientist Professor Steve Running, civil disobedience expert Tom Hastings, and climate change and US security expert Andrew Holland. With presiding judge Bob Gentry, defense attorney Arnold Schroder, prosecutor Summer Nelson, and additional support roles by Jeff Smith (350 Montana) and valve turners Michael Foster and Ken Ward.
• VIDEO of Higgins mock trial testimony
• PDF of partial transcript
"... After retirement, as I looked at climate change, I, frankly, was shocked and scared. As I looked at what the scientists were saying, and I looked at how we were responding how the federal government was responding, how state governments were responding, and the political and public discourse about climate change I realized that I couldn't just mind my own business and expect other people to mind theirs. I had to do something myself, if I expected my kids and grandkids to have a future. So, out of that came a move toward activism."
ABOVE: Leonard Higgins during his 6.5 minute testimony at his Climate Necessity Defense Mock Trial at the University of Montana.
VIDEO: 10-minute excerpts of Mock Trial - produced by 350 Montana|
00:23 - Necessity Defense definition
00:34 - Prosecutor (Summer Nelson) poses Q to prosecution witness
00:42 - Response by pipeline executive (Michael Foster)
01:25 - Defense attorney (Arnold Schroder) poses Q to defense witness
01:37 - Response by climate scientist Steve Running (himself)
02:42 - Defense witness, U.S. security expert Andrew Holland
04:05 - Defense attorney poses Q to defense witness
04:14 - Response by civil disobedience expert Tom Hastings (himself)
05:04 - Defense witness professional environmentalist Ken Ward (himself)
05:54 - Statement by defendant, Leonard Higgins
07:25 - Defense closing statement - 4 criteria for necessity defense
• 350 Montana: "Leonard Higgins Mock Trial Held" at University Theater in Missoula
A mock trial of Leonard Higgins, Valve Turner, was held at the University Theater in Missoula last Saturday. The cast included Leonard and two of the other Valve Turners, three expert witnesses of different professions, and professional lawyers. (See list below.)
- Leonard Higgins appeared as himself
- Michael Foster, a Valve Turner, played a pipeline executive
- Ken Ward, a Valve Turner and 40 year activist, appeared as himself
- Steve Running, U Montana ecology professor, was an expert witness
- Andrew Holland, climate and US security expert, was an expert witness
- Tom Hastings, civil disobedience expert, was an expert witness
- Bob Gentry, environmental lawyer, was the judge
- Summer Nelson, Missoula attorney, was the prosecutor
- Arnold Schroder, Rising Tide activist, was the defense attorney
- Jeff Smith, 350Montana co-chair, was the clerk
Photos left: Schroder, Foster, and Gentry. Ken Ward.
• VIDEO of Ken Ward mock trial testimony
Speaking as himself (his decades of service as a professional environmentalist), Ken Ward (Washington state valve turner) speaks about the futility of expecting environmental activism to achieve climate results, absent more direct action climate disobedience.
Note: Ward's testimony begins 3 minutes into this video and continues for a total of 12 minutes.
•** Climate activist goes on trial for Montana pipeline shutdown, by Matthew Brown, Associated Press, in Chicago Tribune, 20 November 2017. Also published in
U.S. News & World Report,
Bozeman Daily Chronicle,
San Francisco Chronicle
EXCERPTS: An Oregon man goes on trial in Montana on Tuesday in the latest criminal prosecution against activists who sought to call attention to climate change by shutting down pipelines carrying crude from Canada's oil sands region to the United States.
Leonard Higgins, 65, of Portland is charged with trespassing and felony criminal mischief for breaking into a fenced site near Big Sandy, Montana, to turn off a valve on a Spectra Energy pipeline in October 2016. Activists simultaneously targeted other lines in Washington state, North Dakota and Minnesota. Higgins, a retired technology worker for the state of Oregon, wants to tell jurors that his act of civil disobedience was necessary because climate change is an emergency that can't be ignored, he told The Associated Press.
But District Judge Daniel Boucher (boo-SHAY) has indicated that he won't allow the trial to be used as a vehicle for political protest. Boucher said in an April order that testimony on climate change would be irrelevant to the charges faced by Higgins. "The energy policy of the United States is not on trial, nor will this court allow Higgins to attempt to put it on trial," Boucher wrote in the order. "Mr. Higgins is on trial for his voluntary acts."
In a parallel case in Minnesota, two activists last month convinced a state judge to let them present evidence in their upcoming trial that the imminence of climate change justifies extreme action. That's a legal tactic known as a "necessity defense."
"The important thing about a jury trial is a chance to argue about the climate emergency," said Higgins, a former information technology worker for the Oregon state government. "We chose tar sands oil and consider it along with coal to be the dirtiest carbon emitters. They're the ones we should reduce." ...
The protesters called pipeline company officials ahead of time to warn them about their actions, and workers shut down four of the targeted sites before protesters reached the valves. The pipeline targeted in Washington state wasn't operating at the time of the attempted shutdown...
• VIDEO: Report of Trial Day 1 afternoon: Prosecution ends, Defense begins
Reported by Portland Rising Tide organizer Arnold Schroder with short statement by Leonard Higgins:
"... I need fellow parents and grandparents, fellow community members, to take action. I need them to care that their kids' lives are threatened."
21 November 2017 • 4 minutes
(livestreamed to Shut It Down Today, Facebook)
• Montana Day 1 Narrative, by Nicky Bradford (valve turner support), post on Shut-It-Down-Today blog, 22 November, 2017.
EXCERPTS: ... The prosecution is solely focused on proving that Leonard personally caused Spectra (now Enbridge) over $1,500 in damages, which would satisfy the threshold for the felony charge of criminal mischief. While they don't deny Leonard's trespass, the defense argues that without any avenue to argue the necessity of his actions, or to defend them in the context of climate catastrophe, there isn't much left to say. Arguments against Leonard are presented with the cadence of someone reading an itemized receipt: Employee X drove 75 miles. Employee Y drove 75 more. Their numbers are plugged into unambitious equations and presented to the court as self-evident.
Despite the clear intent of the prosecution to keep the notion of ethical protest far from the proceedings, the prosecution's own witnesses tell the tender story of Leonard's action, admitting to his clearly stated intent of nonviolent protest. They even describe the autumn leaves he'd woven into the chain. And the prosecution rests.
Herman Watson had reserved his opening remarks at the beginning of the trial so he could deliver them at the start of Leonard's defense case. And his remarks are profoundly felt in the courtroom. The opening witness is Anthony Ingraffia from Cornell, an expert in fracture mechanics applied to energy resource and transport. "Halting the flow of a pipeline, in the manner it occurred during Leonard's actions, happens during standard procedure and is not an unusual operational event." He also says, that "If a person was diligent and rigorous in reading readily available technical journals on pipeline maintenance, it would be relatively straight forward for someone to learn to safely shut down a pipeline."
• 'Valve turner' trial begins: Case hinges on amount of damage caused by Corvallis activist, by Bennett Hall, Corvallis Gazette-Times (Oregon), 21 November 2017.
EXCERPTS: FORT BENTON, Montana - Leonard Higgins admits he broke into a remote Montana control facility in October 2016 and turned an emergency shutoff valve on the Spectra Express pipeline. But exactly how much harm did he do? That was the central question during the opening day of his trial on trespassing and criminal mischief charges, which began Tuesday in Chouteau County District Court in Fort Benton, Montana.
The 65-year-old former Corvallis resident was one of five "valve turners" who took part in a coordinated action last year to close down oil pipelines in four states to dramatize what they call a climate change emergency.
If Higgins is convicted of trespassing which he admits to doing he could face up to a year in jail. The criminal mischief charge, however, is a felony count that could earn him a much longer sentence up to a decade in the Montana State Prison. But under Montana law, the state must prove Higgins caused more than $1,500 in damage to get a felony conviction...
Defense attorney Herman Watson IV, who reserved his opening statement until after Graham's testimony, assailed the state's evidence in his initial remarks to the jury.... Watson added that Higgins was trying to make a point, not wreck the pipeline, and that he took precautions to ensure no oil was spilled and no one was endangered by his actions. "It was Mr. Higgins' intention to symbolically turn that valve to raise attention for climate change, and that is why we're here today," he told the jury. "I just want you to hear what he has to say."
More than 40 of Higgins' friends, family members, and fellow activists from Oregon, Washington, Montana and elsewhere were in the courtroom on Tuesday to show their support. Also on hand were three of his fellow valve turners Ken Ward, Michael Foster and Emily Johnston and Steven Liptay, a codefendant in Johnston's case...
PHOTO ABOVE: Defense attorney Herman Watson IV (left) with Leonard Higgins. (photo by Bennett Hall, Corvallis Gazette-Times)
• How much oil pipeline damage did Montana protester cause? Attorneys disagree, by Karl Puckett, Great Falls Tribune (Montana), 21 November 2017 (1,000 words)
EXCERPTS: FORT BENTON - A Corvallis, Ore. climate activist who turned off an oil pipeline valve near Coal Banks Landing and Virgelle last year as part of a four-state effort to raise awareness about climate change went on trial here Tuesday. Leonard Higgins, 65, is charged with trespassing and criminal mischief. He's pleaded not guilty. To him, the case is about climate change, too.
"I just ask you to listen to him and I hope I ask the right questions," Herman Watson IV, one of Higgins' three attorneys, told jurors.
In turning off the valve, Higgins did not intend to cause an explosion or major damage to the Express Pipeline, Watson said in his opening statement. The company was notified about 15 minutes in advance that individuals with Climate Direct Action planned to enter the valve area inside a locked fenced area.
Higgins knew the company would shut down the pipeline, said Watson, adding Higgins researched pipeline protocol extensively. It was a symbolic gesture to raise awareness about climate change, Watson said....
District Judge Daniel Boucher ruled that there was sufficient evidence for criminal mischief for the charge to be considered by the jury.
The defense called Anthony Ingraffea, a professor of civil and environmental engineering at Cornell University in New York, to talk about pipeline safety protocol. If someone turned a valve on a modern pipeline, what would be the result? he was asked. "In today's day and age, inconsequential," Ingraffea said. Pipelines are automated and equipped with sensors that immediately recognize if there is a change in pressure, he said.
What about the pipeline company having to shut down the section of pipeline after being notified activists planned to turn off the valve? "Turning off and turning on pipeline flow is not an unusual event," Ingraffea said....
During a break in the trial Tuesday, Higgins, who is retired from working for the state of Oregon, said the objective of turning the valves on the pipelines was not shutting them down but rather calling attention to climate change during the subsequent trials because "rank and file folks don't really know the threat we face. It's my obligation to my kids," he said.
Higgins said his attorneys filed a motion asking the judge to allow a "lesser harm defense" in which he would admit the trespassing, a lesser harm, to address the greater harm of climate change. That motion was denied, Higgins said.
Prospective jurors were quizzed about their thoughts on trespassing, the environment, whether they know parties involved in the case and other topics. One juror said she supported Higgins. "Well ma'am, do you think you've made a decision about this case already?" Boucher asked. Yes, she said. "My feelings are very deep in how I feel in my support."...
• VIDEO: Report of Trial Day 2 dawn: After morning prayer
Reported by North Dakota valve turner Michael Foster:
"... I wish you could have been at the church with us, singing and sharing time and readings. Leonard is just beaming!"
22 November 2017 • 1.5 minutes
(livestreamed to Shut It Down Today, Facebook)
• VIDEO: Report of Trial Day 2 morning: Leonard takes the stand
Reported by North Dakota Valve Turner Michael Foster with 350Seattle operations coordinator Valerie Costa
Michael Foster says: "My favorite answer of his was when the judge was trying to determine if Leonard believed that he was himself in immediate danger when he turned off that pipeline. And Leonard said, 'My wellbeing is intimately connected to the wellbeing of my least happy child.'"
22 November 2017 • 7 minutes
(livestreamed to Shut It Down Today, Facebook)
• VIDEO: Day 2 afternoon: Jury deliberation begins
Defense attorney Lauren Regan (with Ken Ward) reflects on the judge and prosecution questioning of Leonard.
Lauren Regan says: "Of all the valve turner trials so far, the state and court limited Leonard's testimony the most." (Discussion of judge's resistance to necessity defense.) "The other unusual thing was that the state began a colloquy of questioning Leonard for what seemed like a conspiracy case."
22 November 2017 • 4 minutes
(livestreamed to Shut It Down Today, Facebook)
• VIDEO: Day 2 afternoon: Juror interviewed post trial
Kelsey Skaggs, an attorney for the defense (Climate Defense Project), conducts a friendly interview with a juror. Her aim: to learn which aspects of trial testimony were most important during jury deliberations.
00:00 Juror speaks informally
01:41 Interview begins
04:03 Kelsey Skaggs reflects on jury verdict
22 November 2017 • 5 minutes
(livestreamed to Shut It Down Today, Facebook)
• VIDEO: Day 2 afternoon: Leonard Higgins reflects post trial
"... I was surprised that I didn't get to talk about climate change at all, because it was important to show what my intent was in what I did and what my state of mind was.
Any time I came even close to talking about the climate change science that scares me more than the verdict that was delivered today, I was stopped from speaking."
22 November 2017 • 5 minutes
(livestreamed to Shut It Down Today, Facebook)
More excerpts of Leonard's reflections:
Civil disobedience, I think, is just one of the tools that we have in the toolbox. But I think right now it's the most important one. It's really clear from the science that we need to start reducing carbon emissions now...
"... We tend to not realize how dangerous and how immediate the threat of climate change is.... We're in the middle of an emergency, and there are two reasons that we have to act right away. One is that the carbon that's already in the atmosphere will take about forty years before we feel the full impact. We're already about 1 degree centigrade rise in average temperatures globally. The other is just the immensity of the problem. I managed very large IT projects as many as a hundred employees and contractors, and I know even at that smaller scale that very small scale by comparison there's like a 75 percent failure rate on those projects. They're either not done on time or they cost more than was planned, or they don't deliver what was promised. And this is so much more complicated. We need to get started on it.
Dr. James Hansen laid out a plan that if we only had started some time ago would have been such an easier transition for all of us: If we would have reduced emissions, I think at that time it was something around 6 percent per year. We can do that. We already have the science in terms of alternative energy, and sun and wind, And we know how to change things in terms of transportation and agriculture and forestry. We have the answers. We're just being blocked in implementing the solutions.
Question: Would you do it again, know the outcome?
My only regret is that I didn't start working on this problem sooner. As I spoke in my testimony, when I neared retirement I looked back at how I'd spent my time. I worked long hours and was interested in having a nice house, nice cars, and I wish I would have spent more time with family and I wish that I would have known about this problem sooner and joined in with others in working for solutions.
Question: What would you say to my children?
To your children and my children, I'd say, I've done everything I can.
• Trial Day 2: Conviction, by Arnold Schroder (valve turner support), post on Shut-It-Down-Today blog, 25 November 2017.
EXCERPTS: ...As in Washington, but unlike in North Dakota, the jurors seemed generally sympathetic, but fastidious in what they perceive as a duty to convict. A juror interviewed after the trial said these two things: that he "has a lot of respect" for people like Leonard, and that "the law is the law."...
Time and again, as we struggle against this crisis which is undoing the world, we find that the one thing this struggle accomplishes with absolute certainty is bringing us together. People focus on personal contentment and find themselves miserable and alone with considerable irony, we accept struggle and sacrifice and find ourselves happy and together. Many of us are staying in Ft. Benton for Thanksgiving, this most confusing of holidays when Americans actually stop and think about the tremendous abundance at their disposal while also lauding colonization. We are preparing food for tomorrow, editing each others' writing, going bowling, going running, having heartfelt talks, occasionally crying, laughing more often, marveling at the enormous cottonwoods on the Missouri, marveling at the magpies in the gray sky and making friends all over.
Leonard has been convicted of a felony, we can't know the impact of his action, and there's nowhere in the world we'd rather be.
• Jury convicts 'valve turner' Leonard Higgins on both counts, by Bennett Hall, Corvallis Gazette-Times, 22 November 2017 (900 words)
EXCERPTS: FORT BENTON, MONTANA - A Montana jury took just one hour to find climate activist Leonard Higgins guilty of misdemeanor trespassing and felony criminal mischief on Wednesday for his role in the "valve turner" protest that briefly shut down the flow of Canadian crude through pipelines in four U.S. states last year.
The 65-year-old former Corvallis resident is scheduled to be sentenced Jan. 2 by Judge Daniel Boucher in Chouteau County District Court. He faces a potential maximum penalty of 10 years in prison on the criminal mischief count.
The 12-person jury could have found Higgins guilty of a lesser charge but determined that his actions caused more than $1,500 in damage to the pipeline's owner, Spectra Energy (now Enbridge Corp.), making the criminal mischief a felony offense.
Higgins' lead defense attorney, Herman Watson IV of Bozeman, said his client intends to appeal the verdict to the Montana Supreme Court.
"That's always been the plan, and we already have the appeal written," Watson said.
Like his four fellow valve turners, Higgins had hoped to employ a necessity defense, which would have allowed him to argue that his crimes were justified by the imminent danger to humanity of climate change caused by burning fossil fuels. Boucher denied that motion, saying that "the energy policy of the United States is not on trial."...
Watson tried to portray his client as a principled man who felt compelled to take action against climate change, which he views as an emergency that threatens current and future generations. Taking the stand in his own defense Wednesday morning, Higgins responded to questions from Watson about his motivation by saying, "I felt responsible to stand up for what's right and sometimes what's right isn't necessarily what's legal."
But when the questions turned to Higgins' beliefs about the causes of climate change and the need to stop burning greenhouse gas-producing fossil fuels, his testimony was shut down by a flurry of objections from Chouteau County Attorney Steven Gannon. Boucher backed him up, ruling those issues were "beyond the scope of this case."
Gannon made that point again during his closing arguments. "This is not about what (Higgins) believes," he told the jury. "It's about what he did about it." He hammered on the uproar caused by Higgins' act of protest, arguing it cost the pipeline company thousands of dollars' worth of lost productivity. "The bottom line is they are in the business of moving oil," Gannon said. "When the pipeline isn't working, they're not making money."
In his own closing statement, Watson did his best to cast doubt on that claim. He argued that Higgins was an activist, not a vandal, and that the actual damage he caused was not enough to justify a felony charge. In the end, the jury sided with the prosecution, returning a unanimous verdict after an hour of deliberation.
When court was adjourned, Higgins turned to embrace his eldest daughter, Sarah Robertson of Portland, and his partner, Angela van Patten of Portland, who watched the trial from the front row. He was also greeted by about 40 fellow climate activists, many of whom had traveled from Oregon, Washington and elsewhere to show their support.
Higgins remains free on bail pending sentencing. His co-defendant Reed Ingalls, who videotaped and live-streamed Higgins' efforts to shut down the Spectra Express pipeline, also faces trial in Chouteau County on trespassing and criminal mischief charges.
Also on hand were three of his fellow valve turners: Michael Foster, Emily Johnston and Ken Ward [photo left]. Despite the outcome of Higgins' trial, the group was upbeat afterwards, singing songs, exchanging hugs and making plans to share a Thanksgiving dinner in Montana before returning to their respective homes.
Foster who is awaiting sentencing on two felonies and a misdemeanor after his conviction last month in a North Dakota court said there's no reason to feel down because each trial advances the cause of combating climate change. "We win even when we lose because we get stronger," Foster said. "What did Gandhi say? First they ignore you, then they laugh at you, then they fight you. And then you win."
• Portland man found guilty of damaging pipeline, by Karl Puckett, Great Falls Tribune, 22 November 2017 (1,400 words)
EXCERPTS: FORT BENTON - Leonard Higgins, charged with tampering with an oil pipeline in Montana last year following a four-state climate change demonstration, was found guilty Wednesday by a Chouteau County jury of trespassing and criminal mischief. The jury, which got the case at 11:15 a.m., returned an hour later with the verdict, which also included the conclusion that Higgins caused more than $1,500 in damage. District Judge Daniel Boucher set sentencing for January 2.
Following the verdict, Higgins, of Portland, said he was disappointed Boucher did not allow his defense team to present a so-called "necessity" defense in which he would have argued he committed a lesser harm because of an imminent greater harm, in this case climate change. Had that climate change defense been allowed, Higgins said, the outcome may have been different. "It was really frustrating not to be able to talk about climate in the courthouse," Higgins said....
"This is not about climate change," Chouteau County Attorney Steven Gannon told jurors during closing arguments. During cross examination, Gannon also questioned the relevance of Higgins' testimony about his Oregon childhood, work life, family, church involvement and how he got involved in the issue of climate change to the charges of trespassing and criminal mischief case in Montana. His objections were sustained by Boucher. Herman Watson IV, Higgins' attorney, said the background was important to explain Higgins' intent.
Higgins, 65, dressed in a sports coat and collared shirt, looked more like a college professor or grandpa than an "eco-terrorist," as one oil and gas group called him following the Oct. 11, 2016 incident. When he testified Wednesday morning, he still managed to discuss climate change in between objections. He described himself as a church-going family man whose roots are in agriculture and he recalled picking beans growing up in Oregon. Later in life, he got sucked into pursuing the American Dream, he said.
Then, after soul-searching following his mother's death and retirement in 2010, he began to consider more serious issues, including climate change. It is his responsibility to stand up and do what is right, he said. "Sometimes what's right isn't necessarily what's legal," Higgins said. "It was a really hard conclusion to come to."
He read a report by a climate scientist that spurred him to action. "In short it explains both why we have global warning, what the science is behind that and what will happen to not so much me but my kids and grandkids if we don't do something about it," Higgins said. He got involved with a group at his church that worked on climate change. Members of a church group decided to elevate their efforts after community outreach had little influence on public policy. "In our country we have a tradition of civil disobedience," Higgins said. "Our founders left power in our hands as citizens."
The group researched how they could conduct civil disobedience on large enough scale to make a difference. They turned their focus to oil pipelines transporting heavy crude from the oil sands in Canada, and decided to act during the presidential election by attempting to briefly stop all "tar sands oil" coming into the United States....
Two calls were made to companies operating the pipelines before the activists turned up to turn the valves, he said. A person on each scene also live-streamed the activity so the companies could see they were on the locations, Higgins said. By the time Higgins arrived at the Montana site near Coal Banks Landing north of the Missouri River, the flow of oil had been shut off, Higgins said. He also put a chain on the main valve with leaves and flowers in it to represent the group's goal of transitioning to alternative energy.
The entire act was symbolic to try to bring attention to climate change, Higgins said. He was prepared to get arrested, and wanted to use the attention to talk about climate change, he said. The five people involved in the four states were older professionals, he said. They thought their willingness to risk their freedom would more clearly demonstrate the severity of the problem climate change poses more than just presenting facts, Higgins said....
The judge and Higgins' attorneys disagreed on the relevance of climate change and the use of the "lesser harm," or necessity defense, and whether climate change is an imminent threat to Higgins. Addressing Higgins, Boucher said, I think your testimony was you did this not for you but for your children and grandchildren Higgins said that was correct. So at what point did Higgins feel he himself was threatened by Enbridge, the pipeline owner? the judge asked. Higgins replied that his well-being depends on the well-being of his children.
The judge said he denied the motion to allow the necessity defense because Higgins said he took the action at the pipeline for his kids and grandchildren. Case law is clear, he said, that there has to be a threat of injury or death to the defendant to use that defense. He found no imminent harm or threat of death to Higgins, he said.
Lauren Regan, another attorney for Higgins, said the immediate harm is catastrophic climate change in the form of rising temperatures and sea levels, which are occurring now. "That's the imminent harm," Regan said.
During his closing argument, Gannon, the county attorney, said the case isn't about Higgins being a nice guy. "It's about what he did that day," he said.... Gannon, who got the last word, said the incident wasn't a voluntary shutdown by the company as described but rather a forced, emergency shutdown. "It was Mr. Higgins who did it," Gannon said.
All of the cases in the four states have now been resolved except in Minnesota, Higgins said. As he spoke, a few dozen of his supporters from Oregon and Washington sang spiritual songs in the same courtroom where attorneys had been arguing moments before. "I love all of you," Higgins said, "and thank you for coming."
• Climate activist convicted after pipeline protest in Montana, by The Associated Press, in New York Times, 22 November 2017 (460 words). Also reported in
San Francisco Chronicle,
Los Angeles Times,
US News & World Report,
Fox 23 News,
NBC Montana, and others
PHOTO LEFT: Leonard Higgins (center) with defense attorneys Lauren Regan, Kelsey Scaggs, and Herman Watson.
FULL TEXT: FORT BENTON, Mont. - An activist who was trying to call attention to climate change was found guilty of criminal charges on Wednesday for closing a valve last year on a pipeline carrying crude oil from Canada to the United States. A Montana jury found Leonard Higgins of Portland, Oregon, guilty of criminal mischief and trespassing. Higgins could face up to 10 years in prison and a $50,000 fine on the felony criminal mischief charge. Trespassing is a misdemeanor with a penalty of up to six months in county jail and a $500 fine. A sentencing hearing is scheduled for Jan. 2. Court officials initially said Higgins would be sentenced Wednesday.
In a written statement, Higgins said he planned to appeal.
Higgins entered a fenced site near Big Sandy, Montana, in October 2016 and closed a valve on pipeline operated by Spectra Energy. The pipeline carries oil from Canada's tar sands region. Activists simultaneously targeted other pipelines in Washington state, North Dakota and Minnesota. The protesters called pipeline companies ahead of time to warn about their actions, and workers shut down four of the sites before protesters reached the valves. The pipeline targeted in Washington state was not operating at the time.
"I was disappointed and surprised by the verdict, but even more disappointed that I was not allowed a 'necessity defense,' and that I wasn't allowed to talk about climate change as it related to my state of mind," Higgins said Wednesday.
A Minnesota judge will allow two activists to use the necessity defense when they go on trial on Dec. 11 for a similar protest. Emily Johnston and Annette Klapstein are charged with felony counts of criminal damage to critical public service facilities and other counts after closing valves on two pipelines in northwestern Minnesota. Both are from the Seattle area.
Michael Foster of Seattle was convicted of criminal mischief, conspiracy to commit criminal mischief and trespass on Oct. 6 after closing the valve on the Keystone pipeline in North Dakota. His judge barred him from using a necessity defense. Foster could face up to 21 years in prison at his Jan. 18 sentencing.
• Pipeline protester found guilty in Fort Benton, by Rachel Crowspreadingwings, ABC Fox Montana News, KFBB Missoula News, 22 November 2017.
VIDEO and text. EXCERPTS: Fort Benton: Jurors have found Leonard Higgins guilty of criminal mischief and trespassing. When the verdict came down the air in this courtroom was vibrating with anticipation. Moments after the judgment was read ... the crowd showed their support of Higgins by forming an honor line....
He said in the months leading up to the incident a huge amount of planning was done to make sure that when he did turn the valve off, no one would get hurt. That included informing Spectra Energy of the plan so they had time to turn off the flow of oil in that pipeline, which they did. "We worked really hard to have the action harm neither people nor property," said Higgins.
• Pipeline protester found guilty in Fort Benton, by Alex Sakariassen, Missoula Independent, 22 November 2017.
EXCERPTS: "I was surprised I didn't get to talk about climate change at all, because it was important to show what my intent was in what I did, and what my state of mind was," Higgins said. "Any time I came even close to talking about the climate change science that scares me more than the verdict that was delivered today, I was stopped from speaking." ...
Higgins appeared fairly collected while issuing his statements, despite the jail time and fines he could be facing. He spoke of civil disobedience as "the most important" tool in the contemporary activist toolbox, and of the need to reduce carbon emissions to combat the global effects of climate change. Asked if, in hindsight, he still would have turned the Enbridge valve, Higgins didn't hesitate, saying, "My only regret is I didn't start working on this problem sooner."
Higgins' demeanor shifted as the questioner asked a follow-up: What would he tell her children? Higgins began to cry. "To your children, and my children, I'd say I'm doing everything I can."
• Oregon climate activist found guilty of turning off pipeline valve in Chouteau County, by David Sherman, MTN News, KTVQ Billings News, 22 November 2017.
VIDEO Part 1 (00:57 minutes) - tv reporters
VIDEO Part 2 (01:07 minutes) - quotations by Prosecutor Steven Gannon and Defendant Leonard Higgins
EXCERPTS of accompanying news article: ... Higgins did not deny what he did, but argued that the "imperative to prevent climate harms justified his action," according to a press release.
"I'm happy for the opportunity to share why I had to shut down this pipeline, and I really appreciate the time and dedication of the jury and the judge," Higgins said. "I was disappointed and surprised by the verdict, but even more disappointed that I was not allowed a 'necessity defense,' and that I wasn't allowed to talk about climate change as it related to my state of mind. When I tried to talk about why I did what I did I was silenced. I'm looking forward to an appeal."
"We're disappointed that Mr Higgins was denied the opportunity to present a full defense and explain to the jury why he took his courageous action," said Kelsey Skaggs, executive director of the Climate Defense Project and member of Higgins' legal team. "Because of the fossil fuel industry's enormous influence, activists fighting for the future are being convicted while the real climate criminals walk free."
The jury was barred from hearing evidence about what Higgins claimed were "the climate harms" that motivated him. Higgins was prevented from discussing climate change or explaining that he was motivated by the need to prevent climate harms. Whenever he used the word "climate" in his testimony, the prosecutor objected and the judge sustained the objection, according to a press release.
After the verdict, Higgins said, "That scares me more than the verdict that was delivered today that I was stopped from speaking."
Stephen Gannon, the county attorney, said, "It's good that the jury sent the message that you need to take responsibility for your actions, and found him guilty. The representative from the company gave enough information for the jury to find the damages were in excess of $1,500, and the jury found that that was the case."...
• 'Activist Who Shut Down Pipeline on Trial: "Act of Desperation" to Save Planet, by Eric Tegethoff, Public News Service - MT, 22 November 2017
EXCERPTS: ... Higgins, who turned the valve in Coal Banks Landing, began his trial in Fort Benton this week. His calm demeanor betrays the fact that he faces up 10 years in prison on felony charges of criminal trespass and mischief.
Above all else, what's clear is Higgins' dedication to stopping climate change. "For myself, this is an act of desperation," he states. "I'm not the kind of person that you would have ever thought would take civil disobedient, direct action. I'd never had any trouble with the law or courts. I worked for the state of Oregon for 31 years."...
Higgins stresses the importance of reducing carbon dioxide emitted into the atmosphere. He wants people to be as active and passionate about this issue as they would be if their "child had cancer," because he wants his children and grandchildren to enjoy this planet. He hopes the valve turners' actions will drive change. "Like other civil disobedient acts in the past around abolition or around women's suffrage, civil rights, might have some chance to move this issue into the public discussion, change public opinion, and move public policy as quickly as it needs to happen," he states.
Despite his feeling that the public is not directly engaged enough on this issue, Higgins is encouraged by efforts to modernize the power grid and agriculture and thinks the country is ready to move in a new and cleaner direction. "I'm inspired by all of the work that's being done to make the changes that we need to," he says. "Obviously, our technology in terms of wind energy and solar energy have moved at the same rate that the advancements in computers did."
• 'Valve-turners' putting lives on the line for our climate emergency, Guest opinion by Leonard Higgins, The Oregonian, 22 November 2017
EXCERPTS: In October 2016, while President Barack Obama was still in office, five climate change activists, including me, cut chains and closed emergency shutoff valves on five tar sands oil pipelines in four states. In one morning, we briefly stopped the flow of all Canadian tar sands oil into the United States.
We did it because continued failure to reduce carbon emissions threatens our children's lives. Federal and state government have known about the threat for decades. We must begin reductions immediately or miss our chance to prevent outright climate catastrophe.
We videotaped and livestreamed our actions, and called the pipeline companies so they could safely shut down the pipelines. We closed the valves and waited on the scene for the police. We were arrested and charged with severe felonies.
In addition to being prosecuted in state courts, we are also the target of a recent letter signed by 84 members of Congress to the Justice Department, asking why the agency hadn't also prosecuted us under federal law, and whether our actions meet the definition of domestic terrorism under the Patriot Act.
That's preposterous, and likely an attempt at intimidation. But we're undaunted. We are pleading "not guilty" in court and arguing before our juries that the climate emergency necessitated our closing of the emergency valves. The U.S. must quickly transition to alternative energy sources, and the dirtiest fuels like tar sands must be the first to go. Our actions were the equivalent to breaking into a burning house to save children trapped inside.
The legal name for that argument is "necessity defense." It contends that our actions were warranted by the need to prevent worse harms. And, it allows defendants to put expert witnesses and testimony about those climate harms before the jury. In valve-turner trials in North Dakota and Washington state, and in my own trial this week in Montana, the judges threw out necessity defense, so our juries were prevented from hearing testimony about climate change. But in a pending valve-turner trial in Minnesota, the judge granted it, which could be a far-reaching precedent....
Our lives are at stake. But people won't understand that until some of us demonstrate we're indeed fighting for our lives. The courageous, prayerful, nonviolent example set at Standing Rock exhibited the same powerful vulnerability as the march on Selma. That's the blueprint. If we're serious about protecting our loved ones, we have to put ourselves on the line.
• Anti-Pipeline Activist Found Guilty After Being Barred From Mentioning Climate Change, by Dominique Mosbergen, Huffington Post, 23 November 2017
EXCERPTS (quotations unique to this report): ... In a statement sent to HuffPost, Steve Kent, a spokesman for Climate Direct Action, explained that Higgins had hoped to present a "necessity defense," which would have allowed him to argue before the jury that "his action was necessary in order to prevent climate harms much more severe than the consequences of trespassing and turning the pipeline emergency valve."
However, Judge Daniel Boucher denied this motion without a hearing, saying that "the energy policy of the United States is not on trial." That meant Higgins could not discuss or provide evidence of climate change in court. As Kent noted, a Minnesota judge recently allowed a similar climate necessity defense in the trial of some of Higgins' fellow valve turners.
"I think it's a sensible ruling that will allow the jurors to take into consideration all of the information that they really need to rule on this case properly," Marla Marcum, director of the Climate Disobedience Center, told Inside Climate News in reaction to the Minnesota judge's decision.
After his conviction on Wednesday, Higgins, who is free on bail pending his sentencing, said he was "disappointed and surprised" by the verdict and that he intends to appeal. "I'm happy for the opportunity to share why I had to shut down this pipeline, and I really appreciate the time and dedication of the jury and the judge," Higgins said outside the courthouse. "I was disappointed and surprised by the verdict, but even more disappointed that I was not allowed a 'necessity defense,' and that I wasn't allowed to talk about climate change as it related to my state of mind. When I tried to talk about why I did what I did, I was silenced."...
According to Greenpeace, Alberta's tar sands industry produces some of the world's "dirtiest" oil with each barrel resulting in three to four times as much greenhouse gas emissions as regular crude oil. A 2013 report by Ecofys concluded that Canada's tar sands ranked fifth among the world's 14 largest carbon intensive projects.
• VIDEO: Higgins' Defense Team Response, Bozeman Gazette-Times, 25 November 2017 (1 minute). Also on youtube.
Leonard Higgins' defense team Kelsey Skaggs of the Climate Defense Project, Herman Watson IV of the Watson Law Office, and Lauren Regan of the Civil Liberties Defense Center.
Watson says, "...It's our position that he didn't commit a felony; he committed a misdemeanor. And a misdemeanor is what's called 'a lesser included offense' to that felony. So, Mr. Higgins isn't denying that he damaged property; he cut three chains. But those three chains were less than $1,500 worth of damage. And that's our position."
• PRESS RELEASE: Barred from discussing climate change in court, climate activist Leonard Higgins gets felony conviction for shutting off a tar sands pipeline, by Stephen Kent, Shut It Down Today: Climate Direct Action, 23 November 2017 (1,000 words)
EXCERPTS: In a remarkably short tria/ in Montana's Chouteau County District Court lasting just a day and a half, the jury found Leonard Higgins, a retired Oregon state worker turned climate activist who shut off a tar sands pipeline to fight climate change, guilty of felony criminal mischief and misdemeanor criminal trespass....
In addition to being prosecuted in state court, Higgins and his fellow "valve turners" were recently the target of a letter signed by 84 members of Congress to the Justice Department, asking pointedly why it hadn't also prosecuted them under federal law, and whether their actions met the definition of domestic terrorism under the Patriot Act. Earlier this month Reuters reported the letter and the Justice Department's response "could escalate tensions between climate activists and the [Trump] administration."
But Higgins, a mild-mannered 65-year-old who says he acted out of conscience to help prevent climate harms for the sake of his children and grandchildren, was the opposite of confrontational. He expressed gratitude for his day in court and the chance to share his story and spend Thanksgiving with friends and supporters who attended the trial, "in such a beautiful place." He pleaded guilty to misdemeanor trespass and doesn't dispute the facts of what he did, but argues that the imperative to prevent climate harms justified his action. He was not permitted to make that argument in court, however....
But Judge Daniel Boucher, who presided in the trial, denied without a hearing Higgins' requests for a necessity defense, calling them a "mistaken attempt" "to place U.S. energy policy on trial." That ruling meant Higgins' jury was barred from hearing or considering evidence about the climate harms that motivated him....
So without using the word "climate," Higgins sought to convey that his action was a matter of conscience, answering a call he felt to do something effective to prevent the harms tar sands cause. "I began to reactivate in my church, and thought about what I could do to atone, frankly, for just paying attention to my own comfort and success," he said. When asked by the prosecutor what he expected to be the repercussions of turning off the pipeline, Higgins responded, "Two things: to face the consequences, and to use this chance to talk about the problem."
By "the problem," Higgins meant the problem of accelerating climate change amid continued exploitation of carbon-intensive fossil fuels. In the wake of Standing Rock, more pipeline protests have sprung up nationwide, including against the Line 3 pipeline expansion in Minnesota, the Bayou Bridge Pipeline in Louisiana, the Trans-Pecos Pipeline in West Texas, the Diamond Pipeline in Memphis, the Sabal Trail Pipeline in Florida, and others. At the same time, the crackdown on the protests is intensifying. So far this year, several states have passed laws that would criminalize and toughen penalties for peaceful protest and non-violent direct action. Another 20 states are considering such measures.
That makes the trials of Higgins and his fellow climate activists important precedents. More such trials are coming, with more serious charges and penalties at stake. "As [more people] see examples of people putting aside the comforts and the complacency," said Higgins, "they'll feel the same compulsion, the same duty to take action, to do what's right."
Additional press information available at Climate Direct Action MEDIA page.
• I shut down an oil pipeline because climate change is a ticking bomb, Guest opinion by Emily Johnston, The Guardian, 24 November 2017 (730 words)
Emily Johnston, 11 October 2016, Clearbrook Minnesota
FULL TEXT: A little over a year ago, four friends and I shut down all five pipelines carrying tar sands crude oil into the United States by using emergency shut-off valves. As recent months have made clear, climate change is not only an imminent threat; it is an existing catastrophe. It's going to get worse, and tar sands oil the dirtiest oil on Earth is one of the reasons.
We did this very, very carefully after talking to pipeline engineers, and doing our own research. Before we touched a thing, we called the pipeline companies twice to warn them, and let them turn off the pipelines themselves if they thought that was better; all of them did so.
We knew we were at risk for years in prison. But the nation needs to wake up now to what's coming our way if we don't reduce emissions boldly and fast; business as usual is now genocidal.
In shutting off the pipelines, we hoped to be part of that wake-up, to put ourselves in legal jeopardy in order to state dramatically and unambiguously that normal methods of political action and protest are simply not working with anywhere near the speed that we need them to.
One major hope of ours was to set legal precedent by using the "necessity defense" and bringing in expert witnesses to testify that because of the egregious nature of tar sands crude and the urgency of the climate crisis, we'd actually been acting in accordance with higher laws. The classic example of a legitimate use of the necessity defense is when someone is arrested for breaking and entering after they hear a baby crying in a burning building, and rush in to save her.
Because it requires a high bar of proof you must have tried everything else, the danger must be imminent, the action must be likely to be effective courts seldom even allow this defense to be argued, or expert witnesses to be brought; their only concern, generally, is did you break and enter? Not why.
Three of our trials (which are in four states) had already rejected the use of the necessity defense. In North Dakota, the judge said essentially "I'm not going to let you put US energy policy on trial". But recently, I and the other Minnesota defendants were finally granted it. I have little doubt that the awful weather events of the last couple of months played some role in this it's not just scientists seeing the truth anymore: the building is indeed burning, and all the world's babies are in it.
I was struck by the North Dakota judge's implicit understanding that letting science be spoken in her courtroom would have had the effect of putting energy policy on trial of reversing, in effect, who was the defendant, and who the prosecutor. We had no demagogues lined up; we had the nation's pre-eminent climate scientist ready, as well as two people who were to speak on the effectiveness of actions such as ours (often referred to as nonviolent resistance). How far awry must a system go, before the laws of physics are forbidden in a court of law?
Yet it is indeed a dangerous thing to speak the truth sometimes dangerous in particular to those who have been lying to us for decades, and who have gotten very, very rich by doing so. Those who are also, at the moment, running our country.
So I find myself feeling peculiarly exposed now. When I first heard the news, elated, I called and texted and emailed family and friends. I deeply regretted that my mother who died in June didn't live long enough to see us do our best to change legal history. I wish she had known that a judge had been persuaded by the legitimacy of our argument (if not yet of its rightness) a judge, no less, in a county where the pipeline company, Enbridge, is the single largest property tax payer.
I'm heartened by the way the law can be supple not a thing that, once set, holds that exact shape forever (or we'd still have slavery, and I couldn't vote or marry), but a thing that responds slowly to our evolving understanding of what is just and true. When it comes to climate change, there's little enough to feel heartened by, so I'll take it.
• AUDIO: Joint SERMON by Michael Foster (pt. 1) and Rev. Beth Chronister (pt. 2) at University Unitarian Church of Seattle, 26 November 2017
Pt. 1 by MICHAEL FOSTER - mp3 Audio (16 minutes) and transcript in pdf (1,731 words)
EXCERPTS: ... What can one person do to save the world? A heck of a lot more than I ever imagined. It's not enough not yet. But I didn't act alone. I was only able to do what I did because of communities like this one. And when we act together, in civil disobedience, we become a force to change the laws. In an emergency, the law to follow the only law is to preserve life.
Pt. 2 by REV. BETH CHRONISTER - mp3 Audio (14 minutes)
... I'm on a short timeline now kind of like our planet, kind of like our home. And now I kind of know what it feels like to be hanging by a thread. So speaking with you really matters. I'm counting on you. Your response determines what happens after my sentencing.
... Someday what we're doing will be illegal, but not soon enough for our kids. Burning fossil fuels today is deadly, genocidal, child abuse. We are addicts, hopelessly unable to stop ourselves from poisoning and destroying everything we love.
EXCERPTS: 10:27 - ... When Michael and the others turned those valves, they were participating in a greater turning a greater turning that cannot be stopped, not by the legal system nor denial nor greed, a turning that says to all of us with ears to hear, "we need you." Life is in peril. We need the strength and the commitment of millions of individuals and thousands of communities to continue to turn the valves, to practice living in ways that do less harm, and to come together to build our collective power...
12:09 - Timothy DeChristopher said, "What one person can do is plant the seeds of love and outrage in the hearts of a movement. And if those hearts are fertile ground, those seeds of love and outrage will grow into a revolution." Note: DeChristopher's talk at this church in 2016 is on youtube: "The Power of Civil Disobedience"
• 107 Law Professors File Amicus Brief in Minnesota v. Johnston et al., posted by Climate Defense Project, 4 December 2017
One hundred seven law professors, along with the Society of American Law Teachers, filed an amicus brief in the Minnesota v. Johnston et al. case today. The brief was submitted as part of an appeal of the trial court's order granting the defendants permission to present the necessity defense at trial.
Covering topics including the First Amendment, the historical use of the necessity defense, the right to trial by jury, and emerging constitutional theories in climate law, the brief argued that the trial court's order allowing the necessity defense should be affirmed.
Note: The entire brief can be accessed in pdf via the link above.
Footnote 1 in brief: Alice M. Cherry, of Climate Defense Project, contributed to the writing of this brief. No party or
counsel for any party authored this brief in whole or in part, and no person or entity made a monetary contribution to the preparation or submission of this brief. Minn. R. Civ. App. P. 129.03.
EXCERPTS: ... The four individuals named in this case accepted serious legal risks for the sake of catalyzing action on a public policy problem of outsized proportions and thereby to preserve the possibility of an Earth habitable for future generations. Their actions were undertaken with great care and were supported by overwhelming scientific consensus as to the state of climate tipping points and the gravity of global harm presented by climate disruption. They now seek to explain and justify their actions to a jury of their peers.
Nonviolent civil disobedience is part of the American democratic tradition. The four individuals named above stand in the shoes of the American freedom fighters, the abolitionists, the suffragettes, the civil rights campaigners of the 1960s, and the antiwar protesters that followed. Criminal trials in which protesters have explained and argued their views are an integral part of that tradition.
The use of the necessity defense in this case is not only doctrinally appropriate but strengthens the constitutional bedrock on which our legal system 28 rests. That bedrock includes the right to trial by jury, freedom of expression and debate, and a natural environment capable of providing for human needs.
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