A group of environmental activists who chained themselves to Enbridge Line 9 equipment left a Sarnia courtroom Friday without criminal convictions in what's being billed as a precedent-setting victory for pipeline demonstrators across Ontario.
Vanessa Gray, 24, of Sarnia, along with Guelph residents Sarah Scanlon, 30, and Stone Stewart, 29, had been facing charges of mischief endangering lives and mischief over $5,000 after they occupied an Enbridge site on Mandaumin Road and allegedly manually shut down a valve there on Dec. 21, 2015.
But after a year-long legal battle including a series of meetings between the Crown and the defence to arrive at a resolution all charges were withdrawn against the women Friday after they agreed to an 18-month court order to stay away from Enbridge property.
On Tuesday, October 11, Deia Schlosberg, producer of the 2016 documentary "How to Let Go of the World and Love All the Things Climate Can't Change" was taken into custody at a TransCanada Corp's Keystone Pipeline site in Pembina County, North Dakota. Along with activists Samuel Jessup and Michael Foster, Schlosberg was charged with three counts of conspiracy, charges which carry a maximum penalty of 45 years in prison. "When I was arrested, I was doing my job," Schlosberg said in a statement released today. "I was reporting. I was documenting. Journalism needs to be passionately and ethically pursued and defended if we are to remain a free democratic country. Freedom of the press, guaranteed by the First Amendment, is absolutely critical to maintaining an informed citizenry, without which, democracy is impossible."...
Excerpts: Cutting the chain took about eight minutes. As he struggled with the bolt cutters, Leonard Higgins worried the cops might arrive before he could finish his job. Once inside the Spectra Energy Express Pipeline's valve station, Higgins turned the small wheel that would stop the flow of bituminous oil. Bulky winter clothes made it clumsy work. Then he waited. It got cold. An hour and a half later, the Chouteau County Sheriff's deputies arrived...Thirty-plus people had turned up for the 350 Missoula-sponsored presentation, and not one of them passed up an opportunity to laud Higgins for his activism. 350 Missoula chair Jeff Smith introduced Higgins not as a hero or an anti-hero, but "an everyman." The 64-year-old Oregon native had spent the previous day in a Fort Benton courtroom being arraigned. He didn't act like a man facing up to 10 years in Deer Lodge.
...Their plan, carefully researched, crafted and practiced over the course of several months, was to manually shut down the flow of oil from the Alberta tar sands through five different pipelines within the same hour. Everything was done in part as a show of solidarity with the pipeline protesters on North Dakota's Standing Rock Sioux Reservation. Videographers livestreamed the goings-on on Facebook. Support staff called each pipeline company minutes before the valve-turning commenced to alert them to what was happening. The activists had spent the preceding weeks debating specifics, Higgins says, and leapt into action only when they felt confident they'd minimized risks to themselves, the public and the environment. "If we had not been able to satisfy ourselves that there was only a small chance of any leakage," Higgins says, "we wouldn't have gone forward."
Recorded December 13, posted December 14 (72 minutes)
The intros and Q&A begin around timecode 11:00
Editor's note: This is a superb way to get to know the hearts and minds of the 5 Valve Turners plus the 2 members of the support team who (then) were facing felony charges, too: Sam Jessup and Reed Ingalls (Web moderator is Jay O'Hara; Kathleen Dean Moore poses the questions.)
The link goes to the Shut It Down Today Facebook page; scroll down to January 31 entries and look for the picture of Emily and Jay in order to watch the video along with a dozen more Ken Ward Trial videos posted on the Facebook page.
• February 5, 2017 - "Here's How Eco-Activists Can Fight Trump", by Ted Hamilton, The Daily Beast. (Editor's note: Ted Hamilton is a co-founder of the Climate Defense Project, supporting the Valve Turners. This lengthy article is a superb place to learn the history of the "necessity defense" in civil disobedience causes and the nuances of its application in climate direct action resistance. Then go to the CLIMATE DEFENSE PROJECT website: a tremendous education is available there.)
EXCERPTS: On Wednesday, the trial of climate activist Ken Ward who faced felony charges of burglary and sabotage after shutting off a tar sands pipeline between Canada and the United States ended in a hung jury in Skagit County Superior Court in Washington state. This neutral-sounding result was in fact a stunning victory for an activist who admitted that he'd broken the letter of the law to protect the climate, and who was barred from calling witnesses on his own behalf to establish a defense of necessity. It was also a possible harbinger of things to come for a new generation of activists desperate for strategies outside the mainstream.
Prior to trial, the judge ruled that Ward would be barred from presenting any evidence related to necessity. Labeling the existence and causes of climate change matters of "tremendous controversy" a statement that flies in the face of years of scientific consensus the judge left Ward no option but to testify on his own behalf about his beliefs and motivations.
That testimony, bare bones as it was, apparently did the trick. With at least one juror refusing to convict Ward, the case ended in a mistrial, meaning that the prosecution has the option of trying the charges again or adding new ones. For now, though, Ward walks free, his justification having won the day.
The jury's refusal to convict Ward ratified the basic premise of civil disobedience: When the government fails to protect the planet, defend rights, or check corporate power, individuals must take matters into their own hands. It's no crime to conscientiously break the letter of the law to serve to the public good. ...
This model of political action is radical in two senses. It's radical because it challenges the assumptions that our institutions are representative and that our laws serve the public good. Action must be taken outside the system to realize the system's democratic pretensions. It's radical, too, because it's a strategy that's been used in this country since before the Revolution. When juries refused to convict newspaper editors who had criticized colonial governors and abolitionists who harbored fugitive slaves, they ratified risky political action in defiance of established power. The same holds true for juries that acquit pipeline protesters or people sheltering immigrants. And by emphasizing a mismatch between the law and the will of the people, such campaigns often force reform of the challenged policy or institution.
This song was written for the water protectors, the valve turners, and all for those who put their bodies on the line to fight the continued extraction and transportation of tar sands and other extreme fossil fuels. The words were inspired by the testimonies and interviews with the 5 valve turners that in October 2016 shut down all tar sands entering the United States via pipeline, with the help of their support crew. They now face federal charges and massive legal fees.
00:02 Title, guest speakers, 12 February (2 min)
00:16 Welcome by Drew Carter & bio of Rev. Dowd (2 min)
02:20 "Hieroglyphic Stairway" poem by Drew Dellinger (3 min)
05:00 Message for All Ages - Michael Dowd (3.5 min)
08:27VIDEO:"Shut It Down Today" & intro by Michael Dowd (8 min)
16:47 Reading: Quote by Terry Tempest Williams (1 min)
17:49 SERMON pt 1 - Michael DOWD (6 min)
24:00 SERMON pt 2 - Michael FOSTER (15 min)
39:40 SERMON pt 3 - Michael DOWD (10 min)
49:52Michael Foster - Closing words (2 min)
52:18 Michael Dowd - Closing words & Benediction (1 min)
53:20 Musical Postlude - "We Hold These Truths" - music & lyrics by church members Carrie Topliffe & John Douglas (4 min)
Editor's note: The journalist begins with five paragraphs of background, and then a long Q&A with two of the Valve Turners, presented by this tagline: "Ken Ward and Emily Johnston are willing to spend decades in prison for shutting down tar-sands oil pipelines. They want you to understand why."
TEXT EXCERPTS: "SanDiego350, the local affiliate of the national grassroots group 350.org, hosted four of the Valve Turners on Monday night in a free event to facilitate a conversation about the value of such protests. Annette Klapstein, Emily Johnston, Leonard Higgins and Michael Foster spoke to a crowd of local activists."
Editor's note: The VIDEO includes interviews of the 2 women who shut down tar-sands pipelines in Minnesota: Annette Klapstein and Emily Johnston, plus documentary footage of the action, and comments by a SanDiego350 leader.
"The crowd stood and applauded when the six took the podium, cheered loudly at several points during the presentation and gave the speakers a standing ovation at the end of the two-hour event."
"I think now is the time when direct action and civil disobedience is particularly needed," Leonard Higgins said. "We do need to change the concept of what's politically possible." ... "If you're an older white person, this is your job," Annette Klapstein said. "It's up to us to take these risks."
Editor's note: This is a superb article for accessing quotations by each of the Valve Turners. Kathleen Dean Moore served as moderator. The event attracted an audience of 150 at the Unitarian Universalist Fellowship in Corvallis.
Annette: "If you're and older person, this is your job" • Michael: "I still can't believe it; this hand shut off the Keystone 1 pipeline!" • Emily: "We really have no choice; we have to stop it and we can stop it, because those pipelines come through our communities."
EXCERPTS: The Valve Turners are asking to present what is called a necessity defense. Though not widely known, this defense is well established in Anglo-American common law; as early as 1550, an English merchant who dumped passengers' cargo overboard was acquitted on the grounds that his action was necessary to prevent their ship from capsizing. While judges very often resist such necessity claims, since the 1970s hundreds of people who have committed civil disobedience in service of the public good have been acquitted on the grounds that their actions were taken to prevent a greater harm.
To make a necessity defense, the accused must prove that they believed their act was necessary to avoid or minimize a harm; that the harm was greater than the harm resulting from the violation of the law; and that there were no reasonable legal alternatives. As the state of Washington Supreme Court put it, the necessity doctrine provides that an act is justified "if it by necessity is taken in a reasonable belief that the harm or evil to be prevented by the act is greater than the harm caused by violating the criminal statute."
So first of all, the Valve Turners will have to prove to the court that the harm of climate change is greater than that of shutting a pipeline. They will seek to call expert witnesses who will have no difficulty laying out the catastrophic current and future effects of fossil fuel emissions. They can point out that in a recent federal court case the U.S. government acknowledged that climate change poses "a monumental threat to Americans' health and welfare" by "driving long-lasting changes in our climate," leading to an array of "severe negative effects, which will worsen over time." As Ken Ward has put it, "In this context and with these terrible imperatives, my actions of walking across a field and cutting a fence chain are inconsequential and excusable compared to the ghastly effect of continuing to burn tar sands oil."
Many of the Valve Turners have had direct experience with the effectiveness of such actions. In 2013 Ken Ward blocked coal shipments to the Brayton Point power plant in Massachusetts. Shortly thereafter the new owners of the plant announced its closing. Annette Klapstein participated in a in the Shell No! civil disobedience campaign against arctic drilling, including blockading the Port of Seattle for a day, which contributed to Shell Oil's decision to cease operations in the Arctic.
In a case brought by Our Children's Trust on behalf of 21 young people against the federal government, Judge Aiken ruled that if "governmental action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shorten human lifespans, result in widespread damage to property, threaten human food sources, and dramatically alter the planet's ecosystem," then those affected have a claim for protection of their life and liberty under the fifth amendment. "To hold otherwise would be to say that the Constitution affords no protection against a government's knowing decision to poison the air its citizens breathe or the water its citizens drink." Judge Aiken also ruled that if the government was knowingly destroying the earth's climate, it was in violation of the public trust doctrine, which requires governments to act as trustees for essential natural resources. She quoted a judicial opinion that that the right of future generations to a "balanced and healthful ecology" is so basic that it "need not even be written in the Constitution" for it is "assumed to exist from the inception of humankind."..."We don't all have to do the same thing," [Emily Johnston] emphasizes, "nor should we." But "we all have to do something." Because otherwise, "we're passively consenting to the devastation of most life on earth."
Excerpt: "By our action we hope to serve as a pivot point on which the course of history turns, but those odds seem long. Given the choice, however, none of us would act differently. This is our expression of love for all living things, for our children, for all peoples, for our enemies, and for life."
The Unitarian Universalist Congregation in Des Moines, WA (Saltwater Church) invited Foster to present a guest sermon on Sunday morning. The 19-minute sermon video (with added images) became available on youtube April 25, as linked above.
EXCERPTS: ... The months since Higgins, Ward and their cohorts broke into remote pipeline valve stations with bolt cutters have been packed with shifting trial dates, court hearings and, in Ward's case, a hung jury. Higgins is currently scheduled for a pretrial hearing in Fort Benton in May, with a tentative trial date of July 18. According to 350 Montana chair Jeff Smith, whose nonprofit hosted an event with Higgins late last year, Higgins plans to return to Missoula May 13 and 14 for speaking appearances that will double as a pitch for support in his legal battle. He's facing charges of misdemeanor criminal trespass and felony criminal mischief for breaking into a Spectra Express Pipeline station several miles south of Big Sandy and manually closing the shut-off valve.
There's no debating the facts of what Higgins did. All the valve turners' actions were livestreamed on social media, and Higgins has talked openly about the months of planning and preparation that went into the shutdown. Higgins doesn't plan to refute any of this in court. Instead, he plans to enter a so-called necessity defense, arguing that given the responsibility to protect innocent people from the ravages of climate change, he had no choice but to take illegal action.
The strategy is not without precedent. Six Greenpeace activists used it in 2008 after they shut down a coal-fired power plant in Kent, England, by scaling its 200-meter smokestack. All six were cleared by a jury, prompting international news outlets to speculate that the tactic would catch fire in the environmental community. In 2014, Ward and another climate activist employed a necessity defense to fight criminal charges over their use of a lobster boat to block delivery of a 40,000-ton coal shipment to a power station in Somerset, Mass. That case never made it to trial. Bristol County District Attorney Sam Sutter dropped the charges and took the opportunity to proclaim climate change "one of the gravest crises our planet has ever faced." "When activists take these actions, they mean it," says Jay O'Hara, Ward's partner in the coal blockade and a founding member of the nonprofit Civil Disobedience Center, which is now supporting the valve turners with legal and financial assistance. "So how do you say, 'I meant it?' [The necessity defense] is less about publicity and more about embodying the convictions of, 'This is the right thing to do. I'm not going to evade responsibility.'"
"Montana is as good a place as any to have that conversation [on climate change]," he says, "and this is exactly where these conversations should be happening. It shouldn't be a liberal elitist conversation. It's a conversation we need to have in the heart of America with average, everyday citizens."
April 17, 2017 -"Last May, thousands of people flocked to Anacortes to stage a massive, three-day climate protest at the site of the two largest oil refineries in Washington state. Hundreds pledged to commit civil disobedience there, and sure enough, 52 were arrested in the wee hours of the final morning for refusing to leave the oil-train tracks they'd occupied for 36 hours.
Most of the 52 were ultimately charged with second-degree criminal trespass, a misdemeanor that carries a light penalty: A $250 fine and an eight-hour community service requirement. This spring, as their Skagit County trials began (there will be seven in total), jury after jury served each set of defendants their small convictions, regardless of any climate-crisis or legal arguments they or their lawyers made. But on Friday, during the fifth trial, two jurors refused to do so despite what Joldersma [far left in photo] describes as an unsympathetic judge and aggressive prosecutor. "The presumption of guilt was palpable" in the courtroom, he says. From his point of view, "The judge clearly thought we were guilty. To me, it seemed like she felt like she was going through the motions."
The facts of the case were never in question; all defendants claimed they were sitting on those train tracks at that time. They just said they did so because the climate crisis demands it. And two of the jurors, including Skagit County resident Karen Swan, believed them. "I want to thank you from the bottom of my heart for your stand and your risk, I'm honored to have been a juror in your case," Swan said, in a statement to the defendants. "I can very much relate to you in regards to the emotional pain I feel about our world and the destruction of people and the environment."
April 17, 2017 - Two Valve Turners, along with the documentarian facing charges for filming the action in North Dakota (Steve Liptay), spoke at a college-wide seminar for the Earth Week theme of Climate Direct Action. The event took place at Highline College (Des Moines, Washington on the south side of Seattle).
This reworked video is just the 9-minute segment of responses given by Leonard Higgins and Michael Foster on the issue of acknowledging one's despair, working through the process, and then initiating action.
The full 37-minute video recorded by the college can be accessed here.
EXCERPT: A certain kind of anxious question comes almost every time we give a talk as the Valve-Turners: Why would you take such a risk? What brought you to this? ... The root of all of these questions is: you're risking jail time, and I'm worried about climate change too, but I'm afraid to do something like that: how are you different from me? And the discomfort I want to offer you is, I'm not. I've just gotten here a little sooner, that's all.
... Once we're honest enough to see the darkness threatening all that we love, we'll be unstoppable. At that point, I promise, we valve-turners won't be the only ones shutting off pipelines. At that point, the tar sands workers themselves will be doing so. Their CEO's may be blinded by ideology and the drive to profit, but they, like us, are just regular people balancing daily needs and future hopes. They're not willing to give up their kids' futures altogether, so the minute there's broad understanding that that's what we're doing, the jig is up. That's why the fossil fuel industry has been fighting that understanding so hard for decades but it's a losing battle now, and will be ever more so... So what brought us to a place of being willing to risk jail time? The same thing that always makes people willing to sacrifice: love. I'm guessing you love someone or something too. It's why I think you're not far behind us.
Editor's note - This lengthy news article is perhaps the most in-depth article presenting not only Leonard Higgins' background and perspective but also the details of the shut-down pipeline actions of all five of the 'valve turners', including safety considerations (and oppositional arguments).
EXCERPTS: Leonard Higgins is a foot soldier in the fight against global warming.
In late 2012 he helped launch 350 Corvallis, the local chapter of an international organization that pressures governments to take action on climate change. The following year he was one of about 40,000 people who took part in the Forward on Climate rally in Washington, D.C., and that fall he helped lead a demonstration against the Keystone XL oil pipeline at the Corvallis office of the Environmental Protection Agency.
He signed petitions, attended legislative hearings, toted protest signs and reduced his personal carbon footprint. He shackled himself to an 18-wheeler at the Port of Umatilla to halt a drilling equipment "megaload" destined for the Canadian oilfields, fought against the Jordan Cove liquefied natural gas terminal in Coos Bay and blockaded railroad tracks in Anacortes, Washington, to prevent oil shipments from reaching refineries there.
None of it worked...."Despite what Obama was saying, we weren't taking the aggressive action that was needed, and we weren't taking a leadership role in the world," he said. "It was obvious that something more needed to be done."
EXCERPTS cont: After closing the valves, the activists locked the wheels in the off position and placed flowers or leaves as a token of respect for the environment, then waited for the authorities while supporters outside the enclosure live-streamed their actions on social media and independent filmmakers videotaped the events. None of them tried to leave the scene. "We didn't want to do that and just run away, like fugitives," Higgins said. "We wanted to demonstrate what we believe is the responsibility of all good citizens, what patriotism looks like now."
FULL TEXT: Leonard Higgins is preparing to go to prison. The wind dishevels his white hair as he talks about swinging by Deer Lodge between speaking engagements in Missoula and Bozeman this month, just to scope things out. He's already spoken with his partner back home in Corvallis, Ore., about how they'll stay in touch if he's incarcerated, about how often she'll be able to visit.
"I think the odds are against me," says Higgins, 65, "so I'm preparing for being convicted and serving whatever sentence the judge decrees." Even so, this soft-spoken activist, who until last year balked at the thought of public speaking, isn't exactly giving up. Higgins committed to the possibility of jail time well before he broke into a Spectra Express Pipeline station south of Big Sandy last October and shut down the flow of oil. His actions aren't disputed in the case now headed to trial in Fort Benton on July 18, and he says he isn't shirking responsibility for his civil disobedience. "There couldn't be anything further from the truth. I'm asking people and the court to step up alongside me to take responsibility for what's happening."
That's not how Judge Daniel Boucher viewed the situation in Chouteau County last month. On April 12, Boucher issued an order denying Higgins' request to present a necessity defense an argument that Higgins' actions were necessitated by the immediate danger that climate change poses to his family, his friends, and every other human on earth. Boucher asserted that in attempting to enter such a defense, Higgins "cringes from the individual responsibility that historically accompanies protest and social change." And Boucher didn't stop there. "It is clear from his memorandum that Higgins expects to attract publicity through his trial," Boucher wrote, "and in turn, to place U.S. energy policy on trial."
Higgins has already attracted a significant amount of publicity. He and several fellow valve-turners have spoken at universities and Unitarian fellowships along the West Coast, and are beginning an East Coast tour in early June. Higgins Skyped into a house party in Montreal in April, recently attended a direct action workshop in Bozeman, and has upcoming appearances in Whitefish and Missoula (the latter hosted by 350 Montana on May 13). "I'm hoping to impart a sense of emergency, a sense of personal responsibility to respond," Higgins says.
Higgins and his legal team are also busy crafting an appeal to the Montana Supreme Court, in the hopes that the justices will disagree with Boucher's assessment and allow his necessity defense to proceed. Without it, Higgins says, he's unsure how much latitude he'll have to explain the motivations for his actions. "It's an act of desperation," he says. "I don't think that there's a direct cause and effect that my taking this action will carry the day, but it contributes, just as in other acts of civil resistance in other movements in the past."
(posted) May 11, 2017 - Dec 2016 Emily Johnston and Annette Klapstein joined with the three other 'valve turners' in speaking to an enthusiastic audience in Seattle two months after the group had shut down all five pipelines carrying Canadian tar sands in the USA. The two women worked together in shutting down two tar sands pipelines in a remote location in northern Minnesota. Here they speak about the underlying imperative.
Note: This short video contains excerpts from an hour-long video filmed by Ed Mays at the Seattle event, and then posted on his youtube channel here: https://youtu.be/00twEWG1T2w
EXCERPT: In the landmark case of Ken Ward, one of several climate activist facing severe felony charges for shutting the emergency valves on pipelines carrying oil sands, Judge Michael E. Rickert of Skagit County Superior Court in Washington state yesterday for a second time denied the request for a "necessity defense." Note: 13 paragraphs follow.
• May 18, 2017 - "Canadian Prime Minister Wrapping Up Seattle Visit" - KUOW FM Radio, Seattle. In this 1-minute audio (with text transcription), valve turner Michael Foster, supplies the quotation representing the group of Seattle residents protesting Trudeau's support for development and foreign sale of Canadian tar sands oil. "We're here to pray, and to sing, and to make noise, and let Prime Minister Trudeau know that these pipelines must not be approved and will be stopped by the people," Foster said.
(posted) May 14, 2017 - Dec 2016 Leonard Higgins joined with the four other 'valve turners' in speaking to an enthusiastic audience in Seattle just two months after the group simultaneously shut down all five pipelines carrying Canadian tar sands in the USA.
Higgins shut down the tar sands pipeline in a remote location in Montana. Here he talks about why; given the severe climate crisis, he felt "called" to do so. He explains that climate activists who undertake direct action are fulfilling a public necessity and thereby defending the right of future generations to a livable planet.
Note: This short video contains excerpts from an hour-long video filmed by Ed Mays at the Seattle event, and then posted on his youtube channel here: https://youtu.be/00twEWG1T2w
(posted) May 31, 2017 - On May 21, Emily Johnston presented an invited sermon at Northlake Unitarian Universalist Church in Kirkland, WA.
Ms. Johnston's sermon text is available in full online. The youtube caption excerpts her conclusion, which begins on the video at timecode 19:27
Her last paragraph: "We face a profoundly uncertain future, but all we really need for the road ahead is our moral compass and our deep and abiding love. I am asking you I am begging you to think about what that means to you, and what you can do rise to the challenge. My life, and your life, and all the life around us they're worth fighting for."
EXCERPTS: "...The value of the Paris Agreement is in its aspirational goal of limiting temperature increase to 1.5 degrees Celsius, not in its implementation mechanisms, which are voluntary, insufficient, and impossible to monitor. But that modest goal will be breached shortly, which makes the agreement a kind of fig leaf, offering political cover to those who would soft-pedal the runaway climate crisis a while longer... In fact, since the agreement lacks teeth, breaking it won't have any effect on the climate in the short term. But in the longer term, the shock and rethinking it will cause in some circles just might precipitate political and cultural changes we need to stave off climate cataclysm.
"...I welcome pulling out of the Paris agreement because it will disrupt our complacency and strengthen the most vigorous avenues of climate action left to us, which are through the courts and direct citizen action. It lends much more credence to the Our Children's Trust legal argument that the federal government has utterly failed in its responsibility to consider the long-term impact of carbon emissions. It advances the arguments of the Community Environmental Legal Defense Fund in their federal lawsuit for the right to a livable climate. And it strengthens the case for climate activists attempting to raise the 'necessity defense' as a justification for citizen climate action, as I and my fellow 'valve turners' are doing as we face criminal charges for shutting off emergency valves on oil sands pipelines..."
EXCERPTS:"October 11 of last year was a crisp, clear day in Skagit County, Washington. I left my motel room an hour before sunrise and drove a couple of miles to a TransCanada pipeline maintenance site in Burlington. Carrying bolt cutters and a bundle of sunflowers, I walked across an open field just as the sun rose. Reaching a chain link fence surrounding the site, I cut a chain securing a gate, entered the facility, cut another chain on an emergency block valve, and then manually closed the valve, stopping the flow of oil through the TransCanada pipeline, which runs from Alberta, Canada to refineries in Anacortes and outside Bellingham.
"... I went to trial in January on two felony charges of burglary and sabotage. The court refused to permit a necessity defense. That defense would have allowed me to argue that I broke the law in response to an emergency, in this case, climate change, and to present expert witnesses to testify to the gravity of the climate crisis, as well as evidence of the efficacy of nonviolent direct action in addressing precisely this kind of socio-political problem.
"... Denied a necessity defense, I was allowed some small leeway to introduce a barest minimum of climate science in my direct testimony, as it related to my state of mind. That was sufficient for at least one juror to refuse to convict, and the trial ended in a hung jury. My four fellow 'valveturners' also face felony charges, along with three supporters, who took no direct part in the actions, and one videographer.
"... Since the action, I've been asked a number of personal questions: How did you feel? Do you have regrets? Would you do it again? And, as a parent who still has kids at home: How do you balance the risk of incarceration against your parental responsibilities?..."
EXCERPTS: An Oregon man is set to be tried Monday in a Western Washington courtroom after for turning off a pipeline that brings Canadian oil into the U.S. It's his second trial for the shut-off; the first trial, in January, ended in a hung jury... "We are trying to create a public ruckus around the reality of what's happening to our earth," said Ward, a resident of Corbett.... "Nonviolent climate direct action is the last thing that's available," he said.
Ward wanted to bring climate scientists before the court to argue that climate change is imminent and turning off the pipeline was therefore necessary, but the judge denied him that defense. So Ward says, if he's found guilty, he'll appeal.
EXCERPTS: On Wednesday, a Skagit County jury found climate activist Ken Ward guilty of one of the charges brought against him for closing an emergency shutoff valve on a tar sands pipeline near Anacortes last October. While the jury deadlocked on the question of 'sabotage,' they ultimately determined that Ward was guilty of second-degree burglary, a charge that carries up to a decade in prison, and/or up to $20,000 in fines.
...It was Ward's second trial. In January, a different jury was unable to reach any verdict at all a surprising, temporary win for the defense team. In both trials, Ward's attorneys were not allowed to use the 'necessity defense,' a legal principle that says a crime can be necessary if it's done to prevent greater harm (in this case, the greater harm of climate change). Jurors were instructed only to see the facts of the case and to hear Ward's arguments about his own motivation, which stems from decades of working on climate policy via legal means..."My expectation going into this all along," Ward says, "was that unless we were able to include the necessity defense, it was highly unlikely for a jury to find me anything other than guilty." ...A former deputy executive director for Greenpeace USA and former president of the National Environmental Law Center, Ward says breaking the law for the climate now is "a result of everything else failing."
He feels optimistic about an appeal, too, because when he spoke with some of the jurors after the verdict, "what was quite clear [was] if we'd had any opportunity to offer a necessity defense, I think they would have found me innocent, or at least a hung jury. They describe the whole group as being quite convinced by even the small amount of climate information that I was able to get across..."
EXCERPTS: Today a jury reached a split decision in the landmark trial of "valve turner" Ken Ward on charges of second-degree burglary and sabotage...There is no dispute about the facts in the case. Ward freely admits he closed an emergency valve on a tar sands pipeline to prevent harm to the climate, as part of a coordinated action in four states taken in solidarity with the water protectors at Standing Rock. In fact, Ward's supporters called the company in advance to allay any safety concerns over closing the valve, Ward livestreamed his action, and waited for the police to come and arrest him.
What is disputed is whether it is just or legal to convict Ward of felony crimes for acting peacefully and responsibly to prevent greater harm to the climate. In both trials, Ward was denied the right to a "necessity defense," which means he was barred from calling expert witnesses and submitting expert testimony on the severity and urgency of the climate emergency that prompted him to act.
..."It was illuminating to talk to the jurors after the trial," said Ward, "because they made clear that if we had been able to offer necessity defense and give them a legal basis not to convict we would have had a hung jury for both charges, not just for sabotage. The jurors found the conversation about where we are with climate change compelling and convincing. I'm leaving this trial heartened, knowing that we are bringing these arguments into the jury system, and I look forward to arguing before a higher court that necessity defense should be allowed for citizen climate action. That will make all the difference."
"We thank the jury for their service; they did the best they could with what the court provided them," said Lauren C. Regan, attorney and Founder/Executive Director of the The Civil Liberties Defense Center. "We recognize their ability to judge the case was limited by the court's denial of the necessity defense. We will appeal and we hope to try the case again." ..."Especially in a situation like this, where Mr. Ward took courageous action in the public interest, the jury must be allowed to hear both sides of the story not just the government's biased view of what acceptable activism looks like," said Kelsey Skaggs, a staff attorney at the Climate Defense Project and a member of Mr. Ward's defense team. "Even though Mr. Ward's constitutional right to defend himself was violated which we will address on appeal the prosecution failed twice to convict Mr. Ward of sabotage, which is a big win against the criminalization of protest."
Recently, Judge Daniel Boucher of Montana's Twelfth Judicial District Court similarly denied a necessity defense to Leonard Higgins, another "valve turner" who acted simultaneously with Ward. Higgins faces charges of criminal trespass and criminal mischief (a felony), carrying up to 10 years in jail and fines of up to 50,000, for shutting the emergency valve on the Spectra Energy Express oil sands pipeline in Coal Banks Landing, Montana. Like Ward, Higgins notified the company in advance, documented his action and waited for law enforcement. As in Ward's case, the judge also ruled testimony about climate change and civil disobedience "irrelevant" in Higgins' case. Higgins trial is currently scheduled to start July 18.
But the necessity defense has been deemed relevant and used successfully by climate activists before, and some legal scholars say the case for applying it to climate action is getting stronger all the time as climate change becomes more obvious and scientific evidence mounts, while US government doubles down on subsidizing and deregulating the fossil fuel industry, defunding climate programs and research, and withdrawing from the Paris climate agreement. Increasingly, citizen climate action looks like the only effective kind, and more and more "necessary." ..."The actions of Ken and many others aren't some aberration of disobedience," wrote Anthony Rogers-Wright, US coordinator of The Leap, "but a concerted strategy at this late hour to save what chance we have left for a livable future."
EXCERPTS: Providence native Ken Ward continues to skirt harsh penalties for committing unlawful acts in the name of climate change. In the so-called 'valve-turner' trail that concluded June 7, Ward was found guilty of second-degree burglary. The jury, however, was unable to reach a verdict on the more serious charge of sabotage. The district attorney in Skagit County District Court in Mount Vernon, Wash., hasn't said if Ward will be tried a third time.
The trial is a second attempt to convict Ward for cutting the lock on a valve station in Burlington, Wash., and closing a valve on the Kinder Morgan-owned Trans Mountain Pipeline...The sentencing for the burglary charge is scheduled for June 22. Ward, however, is appealing the conviction on grounds that the judge refused his necessity defense. The legal reasoning posits that Ward's crimes were done out of a moral obligation to combat climate change. By blocking the argument, the judge denied testimony from climate-change experts and research showing its impact on the environment. "I relish the opportunity to return to Mount Vernon and retry the case with a full necessity defense when we win on appeal," Ward said after the trial. "These trials, rather than being an obscure legal argument, are an opportunity to open the floodgates on a nonviolent movement of climate disobedience," wrote Jay O' Hara, who co-founded the Climate Disobedience Center with Ward, Tim Dechristopher and Marla Marcum. O'Hara said that jurors he spoke to after the valve-turner trail were looking for a legal path to acquit Ward.
EXCERPTS: This month a group of climate activists were convicted in district courts in Mount Vernon, Washington, and Wawayanda, New York, for committing acts of civil disobedience against fossil fuel infrastructure. Each defendant (one in Washington and six in New York) had attempted to present a 'climate necessity defense,' arguing that their nominally illegal actions were justified by the threat of climate catastrophe in other words, that the real crime is continuing to pollute the atmosphere, not interfering with corporate property. The courts weren't having it: The activists were convicted on June 7 on charges of varying seriousness, although they anticipate appealing their rulings.
...The Washington trial began with an October 2016 protest in which Ken Ward a long-time environmental leader who pursued conventional climate policy avenues for decades before turning to civil disobedience in recent years entered a Kinder Morgan pipeline facility in Anacortes, Washington, and turned a valve to cut off the flow of tar sands oil entering from Canada. His action was coordinated with other "Shut It Down" activists in Montana, North Dakota and Minnesota, who were responding to a call for action from the Standing Rock encampment, and together succeeded in temporarily halting the flow of all tar sands oil into the United States. At the time of his protest (which was preceded by a warning call to pipeline operators), Ward called upon President Obama to make this interruption of tar sands oil permanent, citing the fuel's particularly carbon-intensive nature and the need for much more aggressive federal action to curb emissions. ...These trials are part of a growing wave of climate protest cases in which activists have taken their on-the-ground resistance into the courtroom. Climate necessity defendants have made the justification argument in Utah, Massachusetts, Michigan, Washington, New York and Oklahoma, taking as target both the physical infrastructure of the fossil fuel system pipelines and coal trains and its legal infrastructure industry-friendly environmental agencies and criminal laws that protect polluters. In nearly all cases, judges have decided prior to trial that the defendants have no right to present their necessity evidence to the jury, perhaps fearing that, as often happens, juries will accept political necessity arguments. Being blocked from presenting the necessity evidence then results in nearly unavoidable guilty verdicts for activists who have admitted to the charged conduct.
...The criminal prosecution of nonviolent climate activists which, in the case of the Ward trial, featured felony charges that are rarely, if ever, used against protesters is part of a broader criminalization of dissent that has accelerated since the election of President Trump. Many states have recently passed reactionary laws restricting the right to protest, including some that specifically target opponents of the fossil fuel industry, and prosecutors in Washington, DC, are seeking unprecedented sentences against participants in the peaceful protests on Inauguration Day. This shared exposure to government repression will likely strengthen the bonds of solidarity between climate activists and other social movements, and will underscore the point that climate change is as much a political issue as it is a scientific one.
...The idea that such a system should be challenged is actually relatively new for the climate movement, which for decades eschewed direct action and looked for salvation in mainstream policy solutions. By cribbing from the playbook of past social movements like the Vietnam War resistance and anti-nuclear power campaigns which used political necessity trials to educate the public and to ratify the idea that social progress required working outside of established channels climate necessity activists have pushed their cause away from wonky, inside-baseball environmentalism and toward grassroots, social justice insurgency.
...Bad policy and self-interested policymakers aren't the fundamental problem, though it's the conditions that create and coddle them. With that in mind, climate necessity activism challenges the idea that we'll be able to effectively address climate change through technical fixes within our existing political and legal frameworks. One important lesson from the dismal track record of institutional efforts to tackle global warming failed carbon tax legislation, inadequate regulations, non-binding treaties is that we need a fundamental reworking of the basic structures in which the fossil fuel status quo operates, and that modest policy reform is insufficient. By directly targeting harmful fossil fuel infrastructure and challenging the legal prohibitions against such action, activists like Ward call into question the institution of private property, which allows oil companies to recklessly pollute the atmosphere as a matter of right, as well as our system of political representation, which encourages politicians to serve moneyed interests and short-term goals over the long-term interests of the public. ...By flipping the script of who's acting illegally and seeking to reverse the targets of the law's protections and prohibitions, climate necessity activists are slowly steering the ship of the legal system away from the icebergs ahead and back toward calmer waters. (In this way, the climate necessity movement is linked to efforts to recognize an affirmative government duty to protect the climate and the push to ratify the rights of nature).
...Finally, climate necessity activism forces an official reckoning with climate science, which is sadly still necessary at this advanced stage of the climate crisis. Even as the head of the Environmental Protection Agency denies that CO2 significantly contributes to global warming, protester defendants can use rules of criminal discovery and evidence to force courts to recognize that the burning of fossil fuels does in fact cause climate change and its resulting harms, moving climate science from the contested realm of political contention to the domain of legal objectivity. Immediately following his guilty verdict, Ward noted that "beyond advancing necessity defenses and other specific precedents that we're trying to achieve, it's very useful for us at this point to try to take climate change into the courts, because for all the downsides it's a fact-based venue. And that's a very valuable thing when facts are in jeopardy in the broader political sphere ... Americans understand that serious matters get dealt with in courtrooms, and so it's very important for us to be in here and testing these things in a variety of ways."
...Climate necessity activism is a rejection of such complacency. It's a wedge in the armor of the fossil fuel state, as well as the state of institutional and ideological affairs that insulates climate criminals from accountability...
Click on above for June 23 video interview of valve turners Klapstein and Foster re the community-service sentencing of Ken Ward.
EXCERPTS: A climate activist from Oregon will not serve jail time for his part in an oil pipeline protest last fall. A Washington judge instead sentenced the so-called 'valve turner' to a month of community service and six months of probation.
..."It was pretty lenient sentence, given the possible range of outcomes. Especially given the prosecutor had asked for the maximum," Ward said. Ward faced up to 20 years in jail. Ward was part of a protest looking to hold up the delivery of fossil fuel, a primary driver of climate change. Ward says physically stopping the flow of oil was their only realistic option. "A lot of what we were putting before the court system, it seems to me, is a real struggle between the questions of what's law and what's justice," he said.
Ward plans to appeal his conviction because he feels the judge was wrong in not allowing his lawyers to make the 'necessity defense.' This line of defense says a criminal act can be justified if you have already tried other legal means to achieve an outcome. "We strongly believe if he had been given the opportunity to present that defense to the jury, he may have well have been acquitted," said Ward's attorney Lauren Regan of the Civil Liberties Defense Center.
Ken Ward: It's out of a sense of desperation. I am, for whatever reason, not constitutionally capable of saying, 'Oh well, I can't do anything about it.' I have to try. It wasn't a very happy decision. This isn't something I want to be doing.
Q:Why break the law? Couldn't you just write a blog or an Op-ed piece?
Ken Ward: I did all that stuff. I mean, I've been working on energy policy since 1977 and we have gone backward. It didn't work. I wouldn't be doing this if I didn't think we were facing a threat to the conditions that make civilization possible.
Q: Any advice for stopping climate change?
Ken Ward: It's incredibly complicated. The problem is not merely that we're burning fossil fuels. The problem is that (we're part of) a society that wants to own a lot of stuff. The very first thing we're trying to do is make a near-immediate switch from fossil fuels to renewable energy, but that's sort of obvious. Beyond that, we need to have almost a spiritual change that accepts the ecological limits that we have to operate within.
Q: What consequences do your foresee if the climate continues to warm?
Ken Ward: We're going to see desertification of the whole southern part of the country, and people will have to move north. (We're also seeing) the rapid collapse of the ice shelf in Antarctica, which is already happening. Sea-level rise is not something that civilization can easily handle. Too many people live too close to the ocean.
EXCERPTS: ...Climate activist Ken Ward, one of the 'valve turners' who shut off the flow of tar-sands oil to the U.S. from Canada in October 2016, walked free Friday without fines, restitution or jail time. Skagit County Superior Court Judge Michael Rickert imposed a 30-day sentence with credit for the two days already served by Ward when he was arrested after shutting off a valve on the TransMountain pipeline in Burlington. The judge suspended the rest of the sentence in lieu of 30 hours of community service to be served in Skagit County which Ward said he was looking forward to. Ward is the first of five defendants who shut off oil valves and face trial in various states. Juries deadlocked twice before Ward was convicted of a single, second-degree burglary charge, for cutting the lock and entering a fenced area to shut off the valve. Ward never denied his actions and indeed at the trial showed video of his action. His only defense was that the acts were necessary to defend the Earth because all other options to combat catastrophic climate change, including political action, had failed. ...Ward called the sentence fair, and said he will refrain from further direct action during a six-month period of probation also imposed by the judge. Beyond that, he wasn't certain. Ward had faced up to 90 days in jail.
Since his action, the flow of oil actually stopped for four hours not only was quickly resumed, but the TransMountain pipeline from Alberta to the coast has been approved by the Canadian federal government for doubled capacity, with a twin line planned for construction by Kinder Morgan. ..."I can only hope for vigorous, concerted action everywhere fossil-fuel projects are proposed," Ward said. "Not only for new projects but to question the validity of existing projects." Ward said he feels deep pessimism about the fate of the Earth, which he argued is hurtling toward catastrophic climate change because of fossil-fuel burning. "To feel anything else is another form of denial." It is the second time Ward has escaped a jail sentence for climate actions. The prosecution against him for using a lobster boat to blockade delivery of coal to a power plant in southeastern Massachusetts in 2013 was dropped after the district attorney declared the planet was at risk of climate change and announced he would join Ward at an upcoming climate march.
EXCERPTS: ...Judge Michael Rickert used the "First-Time Offender Waiver" and sentenced Ward to 32 days, including 2 days in custody (served when he was arrested) and 30 days (240 hours) community service in Skagit County, plus six months' community supervision. The state may still file for restitution. The judge dropped bail, and released Ward on his own Personal Recognizance. The State declined to re-file the sabotage charge.
"Given we weren't allowed allowed to offer the defense that makes any sense, i.e. that climate change necessitates citizen action like mine, this was a remarkable outcome in both trials," said Ward. "Juries considered these two charges twice, and three of the four deliberations ended in a hung jury. In the fourth, they gave me a minimalist conviction of burglary. But after the trial the jurors told us they were reluctant to hand it down, and that if they had been given more leeway by the judge they probably wouldn't have convicted me. The conviction is not final. We are appealing it with full confidence that we will win. I expect to be back in court trying these issues all over again."
"It was also interesting to listen to Judge Rickert, who found this a very difficult sentencing decision to make," Ward said.
In announcing the sentence, Judge Rickert, who retires in five days, said, "I've thought about this a lot since the first trial." He pointed out that "we abandoned the head-on-the-pike sentences hundreds of years ago," but said he believed there is validity to sending a message that might influence the actions of others. He noted that Kinder Morgan, though unpopular, "has to be protected too." But he said he viewed Ward's case as a rarity: "No monetary motive, no greed or addiction. If I was going to break into something I'd at least have a beer with me." During the sentencing hearing, Lauren Regan, Ward's attorney, reminded Judge Rickert that Ward's action was highly principled. It was planned months in advance, and Ward took painstaking safety precautions. She also pointed out that continuing to pump tar sands every day exacerbates climate change and endangers the community. Ward believed so strongly in that danger, Judge Rickert said, that "he was willing to throw the tea off the boat into the harbor....Will jail change his behavior? Will it change other people's behavior? No."...
Lengthy (6,000 word) profile of Michael Foster (with photos by Mike Kane).
Tagline: The Seattle climate activist who turned off the North Dakota Keystone Pipeline gave up his livelihood, his family, and quite possibly after the upcoming trial his next two decades of freedom. What drives someone to risk it all?
Via storytelling craft, senior writer Kathryn Robinson has produced an emotionally powerful literary masterpiece that tracks key moments in Foster's life that shaped his motivation to undertake the ultimate in climate activism and that molded him into a highly effective spokesperson capable of touching the hearts of his audiences young and old.
Ken Ward, as the first valve turner to face trial, is also featured and quoted toward the end of this article.
Leonard begins by summarizing the backgrounds (and 'valve turning' pipeline actions) of his 4 direct action colleagues (Emily Johnston, Annette Klapstein, Michael Foster, and Ken Ward). Then he speaks of his own background as "the least likely" of the 5 valve turners to have participated in this action. Age 65 when arrested, Leonard explains how "The Work That Reconnects" (initiated by Joanna Macy) was crucial in transitioning him out of climate despair and into real action action that he describes as surprisingly "blissful."
This is the third guest sermon that Michael Foster has delivered since his October 2016 action in North Dakota of shutting down a tar sands pipeline. The previous two were at UU churches in Goleta, CA and Des Moines WA.
Note: After church on June 25, Foster visited Hutt Park north of Seattle to explore how California's Coast Redwood trees are already capable of growing in Seattle's climate. See his short video segment with a redwood tree.
Annette Klapstein participated (with Michael Foster) in a Q&A session at Magnolia UCC Church, Seattle, on June 25, 2017. In this excerpt she tells the story of her social and climate activism, bridging from her career as an attorney with a tribal government in Washington state and culminating in her role as one of the five "valve turners" who shut down all 5 tar sands pipelines (in four northern states) on October 11, 2016. Klapstein has been instrumental in street activism with the Seattle Raging Grannies, including their focus on climate civil disobedience. (Klapstein was among those arrested in 2015 during protests against Shell's docking of a rig intended for drilling in the Arctic.)
The two Minnesota valve turners and support volunteer recap their statements and their sense of the judge's demeanor/experience at their pre-trial hearing re whether the jury will be allowed to hear their "necessity defense" at their upcoming trial. Each took the stand to testify to the necessity of their actions and to share their unique and moving journeys leading them to climate direct action. The video was posted on Facebook with a caption that includes:
Not a dry eye in the house after 4 defendants testified to the moral necessity of emergency action to protect our home... Valve turners detailed the various methods tried before coming to the conclusion that Climate Direct Action is the most powerful path available now that all incremental steps have failed to mitigate climate change. They spoke of the careful consideration, research, and safety measures taken prior to the action. Joldersma [photo left] testified that he acted because he wanted to be able to look his children square in the eye and say, "I did everything I could."
EXCERPTS: BAGLEY -- Four people accused of trespassing and tampering with Enbridge pipeline valves believed they had no choice but to disrupt the pipeline company's transportation of tar sands, according to testimony given Tuesday in state district court. Emily Johnston, 50, and Benjamin Joldersma, 39, of Seattle; Annette Klapstein, 64, of Bainbridge Island, Wash., and Steven Liptay, 37, of Brooklyn, N.Y., appeared in court to testify after their attorney filed a motion asking to present a jury with a necessity defense upon trial. A necessity defense is used to shield people who must break the law in order to prevent greater harm. The four were arrested Oct. 11 after Johnston and Klapstein used bolt cutters to cut padlocks and chains in order to access a pipeline facility near Leonard, Minn. Liptay, a documentarian and photojournalist, was documenting the act and Joldersma went along to help with safety precautions, according to their own testimony.
... In a 35-page memorandum filed in February, the attorney for all four activists wrote that "their actions were motivated by the need to mitigate catastrophic climate change and its effects on public health and the natural environment."
The group had taken lawful action to try to stop the transportation of tar sands, attorney Timothy Phillips wrote, but "The economic power of oil, gas, and coal companies, exacerbated by corruption and the evisceration of public participation in policymaking, have blocked government action on climate change, leaving no reasonable legal alternative for individuals seeking to avert its ongoing harms."
Clearwater County prosecutors objected to the potential necessity defense. In a different memorandum, former prosecutor Richard Mollin wrote that the group had not tampered with the valve in order to avoid immediate harm. "The necessity defense was never intended to excuse criminal activity by those who disagree with the decisions and policies of the lawmaking branches of government."
During Tuesday's hearing, Phillips questioned Johnston and Klapstein on previous acts of civil disobedience in Washington state, which the two women said had been successful and brought about change. This led them to believe similar actions in Minnesota would make a difference, they said. "If you're willing to take a personal, legal risk and make yourself vulnerable...people are willing to listen," Johnston testified, adding later on that she hoped her actions would resonate with others.
All four defendants also testified to their fears of climate change. Joldersma, who has three young children, teared up while answering questions from his attorney. "My kids are living in a world where forests are vanishing," Joldersma said. "I picture them asking, 'what did you do, dad?'"
Prosecutor David Louis Hanson asked each defendant the same three questions: whether they were a scientist, whether they saw an active oil spill at the valve site and whether they saw anyone in immediate danger there. Liptay has degrees in environmental studies and environmental policy and had worked with a biologist before he began a career as a documentarian. The other three did not consider themselves scientists. None of them saw an oil spill, or anyone in danger. The two attorneys must file briefs with any additional arguments by Sept. 15, after which the judge will decide whether to allow the four to go forward with a necessity defense.
Lengthy (3,000 word) interview of Michael Foster (and Leonard Higgins) in Cavalier, ND.
EXCERPTS: (focusing on valve turner quotes)
... For months, Foster feared that their little group of middle-aged men and women had somehow alerted authorities, and that their mission was doomed. "There were some messages that were sent, some calls that were made that made us go 'oops.' I had a pretty strong feeling that the sheriffs were going to be waiting for us, here in North Dakota and everywhere. Somebody, somewhere, we tripped some algorithm and they'll be waiting for us to show up."
... "We called the pipeline companies about 10 to 15 minutes before, to give them the opportunity to shut down remotely or do whatever they wanted to do," Foster said. "The point wasn't to do anything risky, the point was to do it procedurally, and respectfully, and stop the flow. Kind of the opposite of terrorism." ... "We were thinking that maybe they wouldn't believe it, and that's why we had people to live stream," Higgins said. Nothing did go wrong, however, except that nearly 2.3 million barrels of bitumen were stopped, for a time. All five pipes, two in Minnesota, one in Montana, one in North Dakota, and one in Washington, were shut down simultaneously.
..."When Transcanada called the sheriff, they called it a terrorist attack," Foster said. "But they did not shut off the valve remotely. If that was your pipeline carrying 590,000 barrels of bitumen at 150 degrees F across the continent and you thought there was a terroristic attack on your pipeline, you should shut it down."
... Some call him an eco terrorist, but the title doesn't faze him or Higgins. "Really, for me my case is about proving the crime that took place that day, October 11, was when the oil company came and cut the lock off the valve that I put there and turned that oil back on," Foster said. "That was a crime against humanity and nature." Higgins said, "The real terrorists are the people that are perpetrating this violence on the earth."
"If I can think of something that can be done, and I don't do it, I couldn't live with myself. Whatever inconvenience I might face is nothing compared to the suffering or the vibrancy of the living world to come. There's a world calling being made, there are voices, and creatures, and animals and plants, and people, I know they're coming, just as sure as we have ancestors we have never met, just as we will have descendants we will never meet. I cannot be an observer."
... The life of activism is full of dizzyingly short victories and long dry spells of defeats. When defeat hits home, Foster sleeps. "Really, I sleep," Foster said. "So what do I do about that? I just carry it with me, it fills my head. It distracts me. It keeps me awake. I try and write something; sometimes I manage something, sometimes I don't. Call somebody, just in conversation find some friends and allies, and see if I can help them see things my way, that's all I can do."
... Tension revolving around climate change issues is only worsening now with President Donald Trump in office. "More people are joining the fight," Higgins said. "That's the opposite side of the same coin."
"We're working on a lot of false solutions," Foster said. "And I'm having a tough time speaking out against it. A lot of people in the environmental movement put in a lot of time and hours into something that will be just a dead end. It's a dead end. But I'm pretty far out there as far as policies and solutions, because I really am focused on getting the planet back to a stable climate."
"I only wish I could have stopped more oil. This system is wrong, it's a crime, it has to stop, and I'm here to stop it."
At times, Foster's eyes water, his voice cracks not with sadness, but with conviction. "When they removed my padlock to reopen the flow of tar sands oil to heat the planet, they committed a crime against humanity and nature as deadly as any gas chamber," Foster said. "Every gallon of gasoline burned to drive our kids to school traps 40 million times more heat energy over the centuries. It's a crime with a distinct fingerprint."
..."Reopening that valve legally pulled the trigger on our kids 30 years from now." In states where the temperatures easily dip well below zero during the winter months, changing to alternative energy is not a simple matter, Foster said. "But if we can't live the solution, we really have no right to talk," he said.
"That's a question I want all of us to wrestle with every single day," Foster said. "If burning fossil fuels is a crime against humanity, why are we still doing this? Why should I be contributing to the demise of those I love in 2017? We need to resist this system."
..."What does it mean to be alive on a planet that is dead man walking?" Foster said. "I don't know how bad it has to get to force change. We need everybody doing everything all the time. It's criminal not to take action today."
..."One person cannot change the world." Foster's eyes twinkle. He folds his hands and leans closer. "But one person can change the world."
... Currently, Foster is involved with Climate Direct Action and Al Gore's initiative, the Climate Reality project. In the last five years, Foster has spoken to more than 13,000 people from behind pulpits to rallies about global warming issues. He is also a kayaktivist with the Mosquito Fleet Rapid Response Team, trying to delay oil rigs, ships, and pipelines, what he refers to as "monster death stars" for as long as possible.
EXCERPTS: ... As they awaited trial on these charges, the Valve Turners spoke openly about their reasons for acting. Last winter, I interviewed them in a broadcast webinar and then met them and interviewed them again when they spoke in my hometown of Corvallis, Oregon.
... What did I find when I listened closely to the Valve Turners? Woven together, their words created a new story about the characteristics we will need as we face the global emergencies: Sanity. Prudence. Courage. Good faith. Truth. Compassion. Hope. Integrity.
Steve Liptay (lead videographer of the "Shut It Down Today" original video and who will be tried this fall in Minnesota for onsite video work with the Minnesota valve turners) has produced another short masterpiece both of imagery and narrative.
The focus is on the North Dakota Valve Turner, Michael Foster, and key elements of Foster's story: the valve turning action, his exceptionally low-C lifestyle, and devotion to empowering local (Seattle) kids to plant trees.
Steve Liptay (lead videographer of the "Shut It Down Today" original video and who will be tried this fall in Minnesota for onsite video work with the Minnesota valve turners) has produced a 3-minute composite of Emily Johnston: her expression as a poet, her action as a valve turner, the depth and origins of her motivations to undertake climate activism.
She relates, "Naomi Klein's This Changes Everything was huge for me and helped me understand why I do what I do in terms of movement building."
Excerpts: There's a legal term known as the "necessity defense," a defense that permits a person to act in a criminal manner in an emergency situation not of the person's own creation to avoid greater harm from occurring. I feel like extraordinary times require extraordinary actions, and I am thankful to the water protectors who are standing up in Wisconsin ("Protesters lock down Superior site," Sept. 15)....Across the country, principled people are being charged for opposing pipelines. Take the case of 98-year-old Frances Crowe in Massachusetts. She explained in court, "I care a lot about my grandchildren and all grandchildren in the world. ... And I had exhausted my administrative remedies when I went to the pipeline to put my body there to say 'no.'"
In Minnesota, four individuals are charged with turning valves on Enbridge pipelines near Clearbrook. Facing felony charges, their attorney Timothy Phillips wrote, "Their actions were motivated by the need to mitigate catastrophic climate change and its effects on public health and the natural environment.... The economic power of oil, gas, and coal companies, exacerbated by corruption and the evisceration of public participation in policymaking, have blocked government action on climate change, leaving no reasonable legal alternative for individuals seeking to avert its ongoing harms."
So here we are, Minnesota, looking down the barrel of a pipeline, and history is being written. As wildfires burn to the West and South and as floods and hurricanes lay to waste entire countries, states, and islands, I am sure which side of history I am going to be on.
EXCERPTS: ... What we've been doing for over 20 years has failed, and failed badly, and people understandably want an alternative, but there is no comprehensive alternative to our mainstream U.S. climate strategy, and no means or infrastructure to advance one in these desperate times. This is because U.S. environmentalists with forethought and intention chose to invest in a deceitful, elitist and manifestly unworkable climate agenda that depended on the good will of the fossil fuel giants, the Democratic Party and tweaked capitalism, and ignored ecological principles, our own experience of environmental struggles and the principal historical lessons of social change.
For more than 20 years, our major organizations have offered a transactional climate strategy that demanded nothing of individuals beyond paying annual dues and special appeals. It promised to solve climate change (and a host of other eco-tragedies), with a minimum of fuss, Kennedy School gamed policies, and no bother.
We that is to say, U.S. environmentalist and most climate activists ignored the political and existential threat of the evangelical/alt-right and its fossil fuel financial and political base. We deliberately downplayed the ghastly future of climate impacts, stepping aside while climate scientists tried to take the lead role in communicating climate risk. We chose to accentuate the positive and assumed that elite forces acting behind the scenes would act decisively, and privately, in the global interest.
We did all these things against common sense and our own experience in large part, because it was in our organizational and personal interests to do so. We ceded our strategy to private funders, led by the Pew Trusts and Energy Foundation, and offered up comforting pablum to individual contributors who were quite happy to read an endless stream of upbeat e-news alerts about how solar rates have tripled in California, or the like.
... Almost everyone I know who is fully engaged in trying to craft a pragmatic climate strategy that is grounded in both geophysical and political realities, is prepared for, and driven by the climate change impacts we see unfolding around us, and aims for the truly transformational, does so on the cheap, sleeping on other people's couches, dependent on the kindness of friends for meals and to cover mobile phone charges. We have no offices, no IT department, no staff, no salaries and no paid vacations.
... Given the state of an impoverished movement, it rankles to be asked for a fully formed alternative climate strategy, easy to plug into, ready to go. I think we have a pretty good idea of what an alternative climate strategy looks like, and if we had a modicum of resources we almost certainly could flesh out the bare bones and put it into action. With our own effort and personal funds, we've been doing some of the work piecemeal, in actions like Shut It Down, and there are a number of scrappy organizations advancing important components...
EXCERPTS OF 839-WORD ARTICLE: BISMARCK, N.D. An environmental activist who targeted an oil pipeline in North Dakota a year ago as part of a broader four-state effort to draw attention to climate change is due to stand trial along with the man who filmed his deeds.
Michael Foster's trial starts Monday in Pembina County. He is among the first in that group of activists to go to trial, following a man in Washington state who was convicted of a burglary charge and served just two days in jail. Here's a look at Foster's case, an update on others and an examination of the defense Foster and other activists hope to use: that their lawbreaking was in the public's interest.
... There's no question about what Foster did. The mental health counselor from Seattle surrendered peacefully to authorities on the day of his protest and doesn't deny using a bolt cutter to get through a chain link fence so he could turn the pipeline's shutoff valve. He said he did it to make a more forceful statement. "Not just another parade or a hearing or a petition," he said. Still, Foster has pleaded not guilty, as has Jessup, of Burlington, Vermont.
If convicted, Foster could face more than 20 years in prison and could be fined more than $40,000. Jessup would face a maximum sentence of about half that.
Foster is hoping to use a legal tactic known as the necessity defense justifying a crime by arguing that it prevented a greater harm from happening. "I'm going into this to challenge the jury to use their conscience to consider my act of conscience," he said.
The necessity defense is popular among environmental activists. The Climate Defense Project even offers an educational guide on what it calls an area of the law that is "developing rapidly." However, whether the defense is permitted by law varies from state to state, and in some states including North Dakota it's unclear whether there's a statutory basis, according to University of Mississippi law professor Michael Hoffheimer.
"It's not the most common defense, but it gets raised in high-profile controversial cases where political activists are seeking to challenge the law," he said. "Activists in these cases really want to have an opportunity in the legal system to show the crime they're charged with is prohibiting conduct that's not as bad as the harm they're trying to avoid."
... A decision is pending on whether the necessity defense will be allowed in the Minnesota cases. In the Montana case, Judge Daniel Boucher denied the necessity defense, saying Higgins wanted to attract publicity and was trying to "place U.S. energy policy on trial." Assistant North Dakota Attorney General Jon Byers has asked state District Judge Laurie Fontaine not to allow the necessity defense in the Pembina County trial. "Although the defendants may testify what was going through their mind at the time they took the actions they did, the court should prohibit any other presentation of a climate necessity defense or the attempt to turn this into a trial on global warming," Byers wrote.
EXCERPTS: CAVALIER -- A trial is underway for two environmental activists accused of shutting down a pipeline that runs through Pembina County. Jury selection in the trial of Michael Eric Foster of Seattle and Samuel L. Jessup of Burlington, Vt., started Monday and wrapped up Tuesday. The two men were charged Oct. 13 in Pembina County District Court with multiple crimes after law enforcement said the pair interfered with emergency valves on the TransCanada's Keystone Pipeline near Walhalla....The trial is scheduled to run through Friday.
If you are one of the millions of Americans who has been impacted by a major hurricane, drought or forest fire this year, or even if you aren't, you are coping with the prospect that (another) one might hit you anytime.
On some level you know more climate disruptions are coming, with increasing force and frequency. That engenders a debilitating fear of the future, or what psychiatrist Lise Van Susteren, an advisor to Harvard's T. H. Chan School of Public Health, calls "Pre-Traumatic Stress Disorder."
It can leave people feeling paralyzed in the face of the anticipated trouble, and can stymie society's ability to grapple with looming threats like climate change, or to even talk about them openly. Yet it's critical we do so. Pre-TSD is exacerbated by feeling powerless, says Dr. Van Susteren, leaving stress hormones chronically bottled up with no outlet for the ramped-up vigilance, which causes illness. More importantly, it can leave us frozen like deer in the oncoming headlights of climate change.
Constructive action is the antidote, and I took some. A year ago, I and a handful of likeminded colleagues acted simultaneously in four states to shut off the flow of carbon-intensive tar sands from Canada into the US.... North Dakota, where I'm now being tried, is the epicenter of the crackdown against pipeline protesters. But America's courts are an essential place to discuss the imperative for citizens to act against climate change. As a matter of justice, it's fundamental to have that discussion, and cite evidence to support it, in front of a jury.
The prosecution disagrees. It moved to block me from presenting evidence of climate danger, the main reason I acted. Prosecutors argue jurors might be biased by hearing about climate change, or being shown evidence of how dirty fossil fuels like tar sands affect it, and what those impacts mean for North Dakotans and all of us.... Why the attempted gag order? After all, the prosecution argues, TransCanada is not on trial; the tar sands pipeline crossing our border is completely legal. So what are they afraid of? What sense does it make to ask my jury to vote their conscience about my act of conscience without hearing my motives or the evidence supporting them?
The prosecution's position is more than tactical. It reflects a larger societal trauma response, which tends to paralyze and silence us before climate threats. Not naming the climate elephant in the courtroom mirrors our larger discourse on extreme weather and other climate-related disruptions. What a strange way to address the beginning of the end of the world we love. It's the trauma talking. But we have a responsibility to shake it off and get to work. It's not just the pipeline companies and prosecutors, it's an internal struggle for all of us to break through and face up to human-caused climate harms. Life depends on it.
Across the US, criminal trials are pending for hundreds of citizens who acted against pipelines and fossil fuel infrastructure. Their jurors' own houses are also on fire, and those jurors face the same moral imperative to do something about climate change as the people they are judging.
We can't allow anxiety to cow us into silence and inaction as the window on climate recovery closes. We must begin talking about and grappling with the personal climate imperatives of our time. Our courts are the place to air the facts and jump-start the discussion.
5 October 2017
Dr. James Hansen arrives at Pembina County Courthouse but judge prohibits all expert testimony by defense
PHOTOS LEFT: (a) Michael Foster [blue coat], Sam Jessup, and supporters thank Dr. James Hansen for travelling to Pembina County courthouse; (b) Michael Foster, James Hansen, and Sam Jessup; (c) James Hansen interviewed by defense attorney Lauren Regan as to the testimony that Hansen was prepared to deliver in court.
following decision by North Dakota judge to disallow all expert witnesses presented by defense (9 mins), posted 5 October 2017 on Facebook
EXCERPTS OF INTERVIEW with timecodes:
02:38 HANSEN "It's ridiculous that we can't make this story clear to the jury because I think Michael is actually a hero, not a criminal."
04:29 HANSEN "The hope is that the judiciary is the one place where we do have a chance ... The judiciary is not as sensitive to money [as the other two branches of government], so hopefully we can use it to get at justice for young people."
05:41 HANSEN "I hate to see people sacrificing their lives if the system is just going to punish them."
07:14 HANSEN "There's enough carbon in conventional oil and gas to use up the remaining carbon budget that we can afford to burn. So there's no room for introducing these unconventional fossil fuels, which are very carbon intensive you get less energy per unit of carbon. So it makes no sense, from a strategic point of view, to be doing that. And so that's why we have governments to look at such issues. But what do our governments do? They're in the hip pocket of the fossil fuel industry."
07:51 REGAN: "For this jury and Pembina County, what do you think is the most important information for them to know about the climate crisis?"
08:05 HANSEN: "They need to understand the intergenerational aspect of it, because all people care about the future for their children and grandchildren. If they really understood this, then we could win the case."
EXCERPTS: How does it feel to be on the way to the trial of a really brave conscientious objector? Civil disobedience arrests are not new. I have been arrested five times myself. Good causes: draw attention to an issue, be taken away in handcuffs, pay a fine and get released. No real risk usually. Once, with Larry Gibson, protesting mountaintop removal, I refused to pay the fine and was threatened with one year in prison. One year was a period I was willing to risk for the sake of drawing attention to the situation in West Virginia, where elected officials and even (some of) the judiciary were crooked, bought off by the coal industry. Somehow, after years, West Virginia quietly dropped the case, so I escaped punishment.
...Cavalier, North Dakota: Michael Foster trial. Crime: turning valve of Keystone 1 pipeline near Canadian border, stopping flow of 590,000 barrels per day of tar sands oil. Potential sentence: up to 20 years. Foster is a model citizen who put in years doing everything he could think of to influence the government in ways allowed in our democracy, undertaking the pipeline action only when it was clear that the government would never act responsibly. He does not deserve prolonged jail time.
The trial is still underway, so I will get into details in a future communication. I have to wonder whether my words about the danger of unlocking unconventional fossil fuels (tar sands, fracking) didn't help spur his pipeline action. So I'm on my way to North Dakota, though it seems increasingly unlikely that the judge will allow my testimony on Foster's behalf.
One cannot attend a trial such as that of Michael without asking discomfitting questions: Who are the real criminals? This story is complicated, with calamity around the corner.How does it feel? Like a rollin' stone. Like a rollin' stone.
EXCERPTS: A district court judge in North Dakota has barred climate change scientist Dr. James Hansen and other experts from testifying in the landmark trial of Michael Foster, one of the 11 climate activists with the group Climate Direct Action who temporarily halted the flow of tar sands bitumen from Canada into the U.S. in a #ShutItDown action last October....They hit a roadblock on Wednesday, when the judge barred Hansen a former NASA scientist who has been called 'the father of modern climate change awareness' and other key climate witnesses from testifying. The judge, according to Foster's representatives, claimed "presentation of climate change testimony and evidence would confuse the jury and mislead them."
Hansen, who had prepared a written expert report outlining how North Dakotans and all Americans are in danger from climate change unless "meaningful action to confront the crisis" is taken, and Foster gave a press conference from North Dakota on Thursday afternoon.
"I am in the middle of being tried in front of a jury of 12 people, who will not, it turns out, be hearing from some wonderful expert witnesses," lamented Foster at the press conference. He said that Hansen and others were "ready to testify to different elements of the reasons why I had to do what I did why it was necessary and an emergency for me to shut down the Keystone 1 pipeline."
Asked to share what he would have said on the stand, Hansen said: "The basic thing is, we have a crisis, which is hard for the public to recognize, but that's why we have governments and we have a National Academy of Sciences. The science has been made clear to the government, but the government isn't doing its job, so people like you are trying to draw attention to the idiocy that we have in Washington."
"America's courts are an essential place to discuss the imperative for citizens act to against climate change," Foster wrote in Newsweek. "As a matter of justice, it's fundamental to have that discussion, and cite evidence to support it, in front of a jury. The prosecution disagrees." ...
ENTIRE ARTICLE (also vid): GRAND FORKS, ND (WDAZ) - Five environmentalists facing felonies are in Grand Forks tonight. The 'Valve Turners,' were arrested last fall for shutting off oil pipelines connected to the Dakota Access Pipeline. They will answer questions about their ongoing trial tonight at UND. We spoke to people who say they traveled across the country to North Dakota just to testify, but they say they weren't allowed. "All of us trust the jury, but not a jury that can't hear the facts. If they are given only some facts, what are they supposed to do? They have their integrity, and they have to live up to what the court gives them, and the court was not forthcoming in this case," said expert witness Tom Hastings. Hastings was among just one of the witnesses denied the ability to testify on defense of one of the Valve-turners' actions.
The event at UND's Memorial Union goes from 7-9 tonight.
EXCERPTS: CAVALIER - Friends call Michael Foster the valve turner a hero, the state is trying him as a criminal, and the Keystone Pipeline named him a terrorist for stopping their oil pipeline flow for eight hours in 2016. After a week of trial and a five-hour deliberation, a jury found Foster guilty on all counts, except reckless endangerment, leaving felony criminal mischief, felony conspiracy to commit criminal mischief, and criminal trespass, a misdemeanor. Foster's co-defendant, Sam Jessup, who filmed the action, was convicted of felony conspiracy to commit criminal mischief and misdemeanor conspiracy trespass, both sentences which could carry a maximum of 11 years imprisonment.
"I'm feeling so relieved and peaceful right now, because I've been wondering for a year how this would all play out, and now I don't have to wonder," Foster said. "I'm grateful to the jury for wrestling with this for several hours. There were some tearful faces in there, whether they were unsure, or whether they were simply feeling the weight of sending someone to prison, I think they were taking it as seriously as they could. I would not want to be on that jury."
Foster's trial brought activist groups, civil rights advocates, climate change analysts, reporters from Washington D.C. and New York, to the picturesque town of Cavalier, population barely 1,300, the seat of Pembina County...
Climate guru Dr. James Hansen, a former NASA researcher, was one of the expert witnesses planning to testify. "I'm the one who said tar sands are 'game over' for climate, and here [is Michael Foster] facing trial for trying to do something about it."...
Foster was disappointed with the court's ruling to disallow his necessity defense and the testimonies of expert witnesses. A sticking point with the prosecution was that he was untrained and put lives and property in danger, but the state failed to prove that, Foster said. Prior to him shutting down the pipeline in 2016, the pipeline had already been shut down five times. "People doing this without error, without accident; there's some basic procedures that were followed," Foster said....
Until late Thursday, Foster planned to take the stand. In the end, he was not allowed to. "I thought I am betraying myself, I will regret this for the rest of my life," Foster said. "The truth is if I'd taken the stand there would have been so many objections and fights, the jury would have had to leave the room. Without even getting on the stand, it's pretty obvious we knew what we were doing out there. North Dakota really wants to win something; they prosecuted very vigorously. The judge was very patient and kind. Everybody put a lot of time into doing this right."...
"It all goes back to the fact that you can't have it both ways," Hoffman [Foster's attorney] said. "You can't have your cake and eat it too; it is overcharging of these crimes against Michael Foster. His intent was to stop the flow of the oil as a change in the narrative of climate change, and this was a symbolic event, if anything. You do not have any evidence that any persons or property were in any danger, or that he was in a culpable mental state."
Kirschner argued for his client, Jessup, that the two did not conspire; Jessup was there to film, and he never entered the manual shut-off valve control area, known as Walhalla 8-2, as it is 8.2 miles from the Canadian border. "My client was there when a crime was being committed," Kirschner said. "My client was there to record and live-stream. Just being there doesn't make him a conspirator to criminal trespass. There is no evidence that he said or planned anything beforehand."...
The prosecution rested their case on Thursday, and defense gave short arguments on Friday morning, showing in full a video the prosecution had shown only 18 seconds of, and then turned the case over to the jury. Showing the video to the jury was considered a victory for Foster, who was unable to speak out on climate issues during the trial. Friday's proceedings were short but tense. Defendants Foster and Jessup, friends, family, and supporters, waited in the courtyard's lawn for hours while the jury deliberated. The jury gave its verdict around 7:30 p.m.
The expert witnesses barred from testifying included: Dr. James Hansen, Dr. Tom Hastings, an author and co-coordinator in conflict resolution at Portland State University, and Reverend Rebecca Voelkel, director of the Center for Sustainable Justice.
Foster, a former mental health counselor, has been living in North Dakota for the past month. He traveled partly by rail and by bicycle from Washington to the state to prepare for the trial.
"I can't get over some of the things I've seen and learned, and how different the world looks from this point of view," Foster said. "I'm kind of disgusted with myself and my coastal elitism. I can just imagine how I look and sound, some of my attitudes and there's a part of me that thinks I may relocate to a place like North Dakota to do some climate work. This is where it is at, this is where people are real and understand the truth, and I think we can learn a lot from getting out of our blue states and our bubbles, and just having decent conversations with people who care about the land and care about their kids."...
Editor's note: The video referenced in the above article is reposted below. The prosecution introduced this video as evidence, showing only the first 18 seconds. When the defendant recognized where that short clip came from, the defense moved to use that video in its entirety. Foster's appearance in the video was thus the only words that jurists heard from him during the trial.
EXCERPTS OF PRESS RELEASE: Cavalier, North Dakota - The landmark trial of Michael Foster, a mental health counselor in his 50s from Seattle, just ended in conviction on several felony charges for his action of shutting off the emergency valve on the Keystone 1 tar sands pipeline in North Dakota to fight climate change....
Foster and Jessup are out on bail awaiting sentencing, which is scheduled for January 18. The presiding judge, Laurie A. Fontaine, has ordered a pre-sentencing investigation on both defendants.
Reacting to the verdict, Foster said, "We're here to change everything the laws, whether it's legal to pump tar sands, whether we can defend our young. I've been here in North Dakota a month trying to listen and learn, and I know we have to start these conversations. But the courtroom is for combat, and couldn't allow us to make a defense that undermines the written codes, even in order to defend life. Unfortunately, we're out of time. Our kids can't wait any longer for us to shut this stuff down."
"I'm feeling so relieved and peaceful right now," Foster added. "I'm grateful to the jury for wrestling with this for several hours. There were some tearful faces in there, I think they were taking it as seriously as they could." "I still think that if the people of North Dakota were given the opportunity to consider the facts of the climate crisis with the same kind of rigor that lawyers use in a court of law to put evidence before a jury, that they would recognize the emergency," said co-defendant Sam Jessup. "Our government is not responding to this crisis... It's important to find ways for the American people to have the right to deliberate on the greatest crisis we've ever faced."
The trial made national news because it probed the question of whether Foster, Jessup and other climate activists whose trials are pending would be allowed to cite evidence and testimony about climate impacts of carbon-intensive fuels like tar sands to show their actions were motivated by the need to prevent climate damage.
Foster wrote in a Newsweek column this week: "The prosecution...moved to block me from presenting evidence of climate danger, the main reason I acted. Prosecutors argue jurors might be biased by hearing about climate change, or being shown evidence of how dirty fossil fuels like tar sands affect it, and what those impacts mean for North Dakotans and all of us.. ..As a matter of justice, it's fundamental to have that discussion, and cite evidence to support it, in front of a jury."
That discussion was disallowed by the judge. Dr. James Hansen, perhaps the leading authority on climate change in the US, travelled to North Dakota to testify, because, as he said, "I'm the one who said tar sands are 'game over' for climate, and here [is Michael Foster] facing trial for trying to do something about it." But Hansen and other climate change experts were barred by Judge Fontaine from testifying for the defense. Hansen also prepared written expert testimony, which is available on request. It finds that North Dakotans and all Americans are in serious danger from climate change, unless "meaningful action to confront the crisis" is taken now, especially on tar sands.
"I wonder what the jury would have said if Hansen and the other expert witnesses had been allowed to testify?" said Emily Johnston, a fellow valve-turner whose trial for shutting off the emergency valve on the Enbridge tar sands pipeline is pending in Minnesota. She and her co-defendant, retired attorney Annette Klapstein, each face charges of criminal damage and criminal trespass, and aiding and abetting both, carrying up to 22 years in jail and fines of up to $46,000.
Ken Ward, valve turner in Skagit County, Washington, was convicted of burglary at a June trial, after two trials in which the judge refused to allow a necessity defense. Leonard Higgins, a retired Oregon state government employee, faces felony charges carrying up to 10 years in jail and fines of up to $50,000 for shutting the emergency valve on the Spectra Energy Express oil sands pipeline in Montana. His trial is scheduled for late November.
EXCERPTS: CAVALIER, N.D. - Two men who shut down the Keystone Pipeline in Pembina County have been found guilty on criminal charges.The verdict came about 7:30 p.m. Friday, Oct. 6, 2017, for Michael Eric Foster of Seattle and Samuel L. Jessup of Winooski, Vt., who were both on trial this week in Pembina County District Court.
The trial began Monday, with jury selection carrying over into Tuesday. About 20 jurors were excused for cause before the arguments got underway Tuesday afternoon. The defense intended to use a necessity defense, which argues a person can commit a crime if there is no other way for that person to avoid risk or being harmed. In Foster's and Jessup's cases, they originally wanted to argue their actions were justified due to "the dangers of climate change," according to court documents.
Judge Laurie Fontaine ruled against that move, saying in court documents the defense failed to meet the burden of proof to use that tactic. Fontaine also ruled against the defense's move to present four expert witnesses and at least 55 exhibits during trial.
Three days before the trial, the defense sent an email to prosecutors indicating they intended to use the experts and exhibits, according to court documents. The defendants argued the Sixth Amendment allowed them to present a complete defense, adding the experts would "bolster the credibility of their client's belief," according to court documents.
Prosecutors argued the experts' testimonies would discuss climate change and was inadmissible based on the previous necessity defense ruling, according to court documents. The state also argued it had no time to prepare or raise objections in response to the late development.
Fontaine wrote in court documents that there was a chance the testimony and evidence would confuse or mislead the jury "into believing the legitimate concerns regarding climate change are an excuse or defense to the crimes charged," which would go against the ruling prohibiting the necessity defense.
"This court case should not become a forum on the issue of climate change for experts," she wrote. "The issues in this case are whether these defendants willfully and/or recklessly violated the law as the culpability relates to each charge."
Jessup was found guilty on conspiracy to commit criminal mischief, a Class B felony, and a misdemeanor criminal conspiracy charge. Two other charges have been dismissed. Foster also was found guilty on conspiracy to commit criminal mischief, as well as a Class B felony of criminal mischief and a misdemeanor charge of criminal trespass. He was acquitted on a misdemeanor reckless endangerment charge, and four other counts were dismissed.
Jessup faces up to 11 years in prison, while Foster could be sentenced to 21 years in prison. Sentencing has been set for Jan. 18.
EXCERPTS (both video and text online): PEMBINA COUNTY, N.D. - A climate activist is facing up to 21 years in jail for turning an emergency shut-off valve on a major pipeline in North Dakota. The convicted man, Michael Foster, awaits sentencing for what he says was effort to bring awareness to global warming.
Michael Foster committed two felonies last fall. "For a few minutes anyway, 15% of the nation's oil supply stopped moving. So a couple of million barrels of oil stopped going to market," said Foster, environmentalist. Foster, along with four others are the so-called Valve Turners....
Foster said, "There's no politician, no corporation doing the thing we need to do to protect our young, our home, our land, our water, so we took action."
Foster says he called the pipeline developer, Transcanada, beforehand to let them know what he was doing. He waited for Pembina County Sheriff's Deputies to arrest him.
On Friday, a jury of his peers convicted him. "I'm worried that some of the jurors might be feeling bad for convicting a nice guy and putting him in prison. That's a heavy burden for a good Christian person to bear," said Foster. Foster says he's not upset at jurors for the decision.
His lawyers originally wanted to argue their actions caused more good than harm, in the name of climate change, according to court documents. The judge ruled against the move and also refused to allow four expert witnesses and dozens of exhibits.
He says this is all part of civil disobedience, inspired by an icon. Foster said, "[Martin Luther] King said, when a person challenges an unjust law and is willing to face the punishment it arouses the conscience of the community and shows ultimate respect for that law."...
He's hoping jurors and the rest of Pembina County will take a second look at Climate Change. "What I did to keep our kids safe yours and mine was seen as a threat to our kids by my jurors who also want to keep their kids safe," said Foster.
it arouses the conscious of the community
With over two decades of his life on the line, he'll find out how much time he'll serve in January. Another valve turner, Samuel Jessup, is facing up to 11 years in prison as a result of his actions including conspiracy to commit criminal mischief.
There are seven total reports: One pre-trial, five during the trial itself, and one post trial and verdict.
EXCERPT (from the final report, post-trial): ... People are making their way back East and West by plane, train, and automobile. Sam heads back to his home and work and people in Vermont. Michael, Annette, and Mosey (Emily's dog) are riding with Emily in her newly built-out, plywood-fantasy, camper mini-van. Leonard's van broke down in Montana, but Ken is snug at home. If you're in the Seattle area, come this Wednesday to a big ol' celebration with Michael, Annette, and Emily (see below, we need you bad).
You've reached out with heavy thoughts and we want you to know that everyone is doing ok. This is the work that we entered into with open eyes. We went to North Dakota to withdraw our consent from a system that puts corporate profits over a stable climate, and also to normalize and move people to radical disobedience. If the mission is working, what are you willing to do?...
CAVALIER N.D. - A North Dakota jury has convicted an environmental activist who targeted an oil pipeline a year ago. The Pembina (PEM'-buh-nuh) County jury found Michael Foster of Seattle guilty Friday of conspiracy to commit criminal mischief, criminal mischief and trespass. Foster was acquitted of reckless endangerment.
Foster's actions were part of a broader four-state effort last October to draw attention to climate change. Foster did not deny using a bolt cutter to get through a chain link fence so he could turn the pipeline's shut-off valve. He contended his law-breaking was in the public's interest.
Samuel Jessup of Winooski, Vermont, who filmed Foster's protest, also stood trial and was convicted of conspiracy. Sentencing for both men is scheduled for Jan. 18. Their attorneys did not respond to requests for comment Sunday.
A lawyer for an environmental activist convicted of targeting an oil pipeline in North Dakota said he doesn't think a judge's decision disallowing the threat of global warming as a defense to justify the crime would be grounds for an appeal.
Defendant Michael Foster, of Seattle, said he has not decided whether to appeal his jury conviction to the North Dakota Supreme Court, and part of him wants "to honor the judge and the jury and their verdict."
Foster took part in effort on Oct. 11, 2016, to draw attention to climate change by turning off valves on five pipelines that bring Canadian oil south. Foster targeted the Keystone Pipeline in North Dakota. Other activists targeted pipelines in Minnesota, Montana and Washington state.
A jury in North Dakota's Pembina County on Friday convicted Foster after a weeklong trial of criminal mischief, criminal trespass and conspiracy. He faces up to 21 years in prison when he's sentenced Jan. 18. The man who filmed his protest action, Samuel Jessup of Winooski, Vermont, was convicted of conspiracy and faces up to 11 years.
Foster had hoped to use a legal tactic known as the climate necessity defense justifying a crime by arguing that it prevented a greater harm from happening. Prosecutors objected, saying they didn't want a trial on global warming.
Judge Laurie Fontaine sided with the state, saying in part that "a reasonable person could not conclude that (climate change) harms, however serious they might be, were imminent and certain to occur" had the pipeline not been temporarily shut off. She also disallowed four people Foster wanted to call as expert witnesses on his behalf, including former NASA scientist James Hansen, an advocate of climate change awareness.
Defense attorney Michael Hoffman said Tuesday that he doesn't think the judge's ruling on those two issues should be a part of any appeal, and that it's up to Foster whether to appeal at all. Foster said he'll decide once he learns his sentence.
Foster, who on Tuesday was headed to a coffee chain business in Seattle to urge use of a different cup to save trees, said his North Dakota protest a year ago was aimed at spreading his message of climate change awareness in a way that would get more notice than "standing on a corner handing out fliers." Even though he succeeded, he wonders about how much difference it will make.
"It's been a year, and pollution is worse today than the day I turned the Keystone valve shut," he said. "Based on that alone, I wonder how effective it was. If people don't respond quickly (to climate change), it won't matter."
Eleven activists were charged in the four-state effort. One was convicted of burglary in Washington in June and was sentenced to two days in jail and community service. Prosecutors dropped charges against two filmmakers in that state. Criminal cases are pending against two activists in Montana and four in Minnesota.
• Todd Hastings post-trial reflection. Note: Todd Hastings came to the North Dakota trial as one of 3 potential expert witnesses put forth by the defense. The judge denied expert testimony by all three. Blogpost "This Land is Your Land", 11 October 2017.
EXCERPTS: I spent the last few days traveling across the country to North Dakota to join others in supporting a gentleman who tried to help everyone. For that, he was convicted of several crimes and will be heading to a North Dakota prison. Michael Foster was born and raised in Texas, in an oil family. His crime in North Dakota was turning off the Keystone pipeline in a symbolic but real call to all of us to do what we can to stop global climate chaos.
... We see the buck-naked consequences of paying no attention to our oil consumption; Harvey drowns Houston, fires rip through the West, every hurricane is more intense than it otherwise would be, droughts last longer, lakes are drying up, the seas are rising and surging, and with fracking even earthquakes are no longer a pure act of God. Most previously natural disasters are now unnatural disasters, made worse by our hand more than the hand of God or Mother Nature.
I attended Michael's trial as much as possible, although I couldn't be in the room in the beginning because I was scheduled as an expert witness and we were sequestered until we testified or until the judge disallowed us which she did. Michael was facing 23 years in prison on four charges. Three of us were there to provide expert testimony in three topic areas to help the judge and jury understand why Michael should be acquitted. Two of us were there to speak to different aspects of nonviolence and one was on hand to speak about the urgency of a rapid change in our general habits but a specific exam of the dirty tar sands oil that flows through the Keystone pipeline. Climatologist James Hansen is 76 years old and is the one who announced that "global warming has arrived" in 1988 when he worked as a scientist at the Goddard Space Center. Every single prediction he made then has come to pass. He is arguably the world's top scientist in that area certainly the most famous.
...The contempt for anyone coming to North Dakota to "tell us how to live" (the prosecutor's attack on Michael, who is now from Seattle) was palpable....
Michael Foster (see "How Does It Feel") was convicted on 6 October on three of four counts, two felonies and one misdemeanor. He will be sentenced in January. Judge Fontaine ruled earlier that the "necessity" defense was not allowed. We hoped I would still be able to testify about the threat of climate change and urgency of fossil fuel phaseout, to make the jury aware of factors affecting Foster's state of mind and his action. However, this too was not allowed. I prefer taking the offensive, lawsuits against the real criminals, but let's consider the necessity defense and Foster's specific situation. The necessity defense requires showing that: (1) there is no legal alternative to violating the law; (2) the harm to be prevented is imminent; and (3) a direct, causal relationship exists between defendant's action and the avoidance of harm.
MICHAEL FOSTER:I can't imagine a more sympathetic figure than Foster. He reached the point of committing a supposed felony, turning off a tar sands pipeline, after decades of growing concern and increasing efforts to take helpful actions. He walked the naturist talk, minimized his and his family's carbon footprint, became a vegetarian, even raising backyard chickens, showed that it was possible to live an American life while treading lightly on the planet.
... continued below
As governments failed to take action on climate change, his concerns grew and his efforts to do something became almost superhuman. He started the website ClimateChangeforFamilies.com, founded Plant-for-the-Planet NorthWest, and co-founded 350 Seattle. He became a speaker for the Climate Reality Project, giving a slideshow to more than 13,000 people, but rather than just the standard slideshow, he included a pathway to a solution, as specified in our 2013 Plos One paper (emission reduction of several percent per year and 100 PgC carbon drawdown via improved agricultural and forestry practices). He became a parent coordinator for the Our Children's Trust (OCT) lawsuit against Washington State, to name just some of his activities.
These were the actions of a feeling adult with a masters of education in counseling psychology. In counseling adolescents and families he observed the increased anxiety and stress that today's youth face, a fact partially attributable to realization that young people face lesser prospects and difficult times because of climate change. As a practicing professional in the mental health area, he saw continuing governmental failure to address climate change as tantamount to child abuse. The historic "victory" in the OCT lawsuit against Washington State added to Foster's frustration. Washington supposedly must reduce emissions on a pathway that, if adopted globally, would return atmospheric CO2 to 350 ppm by 2100. In reality Washington's minimalist actions have little effect. Foster relates a "celebration" of Governor Inslee on stage with the kids, while his reality is "half-measures" and "soothing and baffling expedients" that promise young people only a "period of consequences," tantamount, indeed, to child abuse.
IMMINENT DANGER AND URGENCY OF ACTION: One cannot recognize the imminent danger without understanding the science. It is not difficult science. The urgency of action arises from the slow response of the climate system to changes of atmospheric composition. This slow response means that there is more global warming "in the pipeline" without further increase of greenhouse gases (GHGs). Delayed warming is due mainly to the large thermal inertia of the ocean. [9 paras of climate science follow]
... FOSTER'S DEFENSE: Michael Foster is a mental health professional deeply concerned about the well-being of young people and the global mess that we are leaving them. Michael Foster is not a scientist, but when I met him in North Dakota I was shocked at his quantitative knowledge of information in our papers such as "Young People's Burden", and he quoted several lines from my TED talk, including: "What would you do if you knew what I know?" We know what Foster did: he turned off a damned tar sands pipeline. It is a travesty that Foster should go to prison, while those guilty of child neglect and abuse sit lavishly in Washington and corporate headquarters. As for the necessity defense, the evidence is overwhelming, it seems to me, that the second and third requirements are satisfied, i.e., the harm to be prevented is imminent and there is a causal relation of the defendant's actions with avoidance of harm. The first requirement, proving that there is no legal alternative to violating the law, is harder to meet. That is the reason I prefer to go on the offense, use the legal system to go after the real criminals.
Michael Foster could have made an argument that the exceedingly slow pace of alternative approaches is inconsistent with the urgency of addressing the present climate emergency. Understanding the urgency of CO2 emission phasedown requires understanding the slow response of the climate system, the role of amplifying feedbacks, and the danger of passing a point of no return. Regrettably, these points are not yet matters of widespread knowledge and I was not allowed to inform the jury about them. Accordingly, I think the judge made an egregious error in prohibiting expert testimony relevant to Foster's state of mind in particular, the basis for Michael's understanding of the urgency of emission phasedown and government's failure to take meaningful action as I discussed in "How Does It Feel?" The jury should have heard about factors that affected Foster's state of mind before it determined his guilt as to charges carrying the potential for long prison time.
SUMMARY: This post-trial CBC radio interview can be either listened to in AUDIO or read in the published text TRANSCRIPT. The interview begins with an audio clip of the 7-minute Valve Turner video, starting with the music and then the full phone colloquy in which Jay O'Hara notifies the pipeline company ten minutes in advance of a valve turning shut-down.
The interview lasts a little over 15 minutes, followed by a minute in which the host reads the statement given her by Transcanada Pipeline. Then jump to the end (timecode 24:00) of the 25-minute radio session to listen to a book author, Chris Turner, reflect on the Foster case by mentioning that his jury trial took place in the fastest-growing oil patch state in the USA. • Excerpts from transcript are below.
EXCERPTS (unique to the CBC interview) of Foster's responses to CBC questions:
It was, I think, a very effective action in terms of drawing attention to the tar sands and in drawing attention to the existing consumption of fuel that we have to stop right now: we are in an emergency. We've been hearing about it for 30 years and we're running out of time.... I'm very grateful to be out on bond and able to tell this story until January.... we were actually copycats. We were not the originals. We have to give credit to some wonderful women in Canada who did this first and taught us kind of how it was done.
... I turned off the Keystone Pipeline, and I got to tell you: It felt so good. I grew up in Houston Texas across from Shell Oil and, gosh, 50 miles of oil refineries the oil capital of the world, along the Houston ship channel, the place that was flooded very recently with Hurricane Harvey and toxic chemicals and emissions were spewed into the air. I had friends on Facebook saying they were being ordered to shelter in place to avoid breathing outside air while poisonous water was seeping into their homes. So that's where I grew up and that's where the Keystone has a spur going really close to my old neighborhood. So it was it was a pleasure to be able to turn that valve and feel that 590 thousand barrels of bitumen stopped moving.
... I am one of those people who has tried everything. I've made the signs. I've signed the petitions. I've written letters. I've met with my leaders and officials. I've proposed plans and policies. I think what radicalized me the most: I work with kids who plant trees and I help organize them. They have a plan. These fourth, fifth, sixth-grade kids around the world are the United Nations 'tree counters'. They are trying to plant one trillion trees worldwide. That's one new tree for every three trees living today. This is an incredible thing; most people have never heard of it. So I volunteer and I helped them organize.
... Well we met with some lawyers from Our Children's Trust and we brought a lawsuit against the State of Washington. And these kids won this lawsuit and for the first time in U.S. history the courts recognized the constitutional human rights the inalienable rights to air and water in our state under our Constitution that these children will require to grow to adulthood safely. I'm not talking about future generations; I'm talking about young citizens of our state who are sitting in school and learning about this climate science and freaking out. They have a plan to get the CO2 back into the ground and they're working on it. And they brought this case. They won. The court directed the government to fix climate with a 'clean air rule' and then the government simply punted. They passed a rule here in the state which does nothing. It tied up the courts for a couple of years. [The state] appealed the rule. Even while the governor was celebrating these kids' historic landmark victory, quietly he was appealing that same victory.
... After watching the kids win from the plaintiff's side, I realized that the courts were not going to be able to respond quickly enough. Our leaders, our donors, the people who, you know, call ourselves progressives: We watch our footprint and we say all the right things and share all the right things on Facebook, [yet] we are the ones who are not demanding immediate science-based action in response to a very clear and well-defined emergency.
... Ultimately the judge has to decide, "Am I going to allow someone to present expert testimony and evidence at length in a way that might confuse the jury into thinking this guy's got a good excuse? You know, this guy doesn't sound like a criminal to me. He sounds like he was actually doing this for us like he was actually trying to protect my kids. He may be crazy, may be wrong, I may disagree with his politics or his science, but look at him. You know, look at these people who are here from around the country to testify for him." I also had Reverend Dr. Rebecca Voelkel, an expert on social justice and the religious imperative to take moral direct action. So you have these experts come and take the stand, and it would be hard for a jury to convict.
CONCLUDING STATEMENT: ... I would rather follow a higher law than betray my own children, an entire generation and, frankly, all life to come everything I know, everything I love on Earth. If we don't stop, we're like a junkie shooting a needle. If we don't stop, we can't correct or readjust or do anything. It will be too late for this generation.
EXCERPTS: Climate activists secured a significant victory on Friday when a Minnesota judge issued a written opinion allowing the presentation of the climate necessity defense at a jury trial. The case stems from a set of coordinated "Shut It Down" actions last October, when activists across four states succeeded in shutting off the flow of tar sands through pipelines entering the United States from Canada. Following the court's decision, the four Minnesota defendants Annette Klapstein, Emily Johnston, Steven Liptay, and Ben Joldersma will be able to present evidence that their actions were motivated by the necessity to address climate change. Only a few courts have allowed presentation of the climate necessity defense, and until Friday no judge in a jury trial in the United States had recognized the defense in writing.
Excerpts continue below.
In his opinion, Judge Robert Tiffany of the Ninth Judicial Court in Clearwater County noted that the necessity defense in Minnesota requires proof that the defendants avoided a significantly greater harm by breaking the law, there were no legal alternatives to breaking the law, that the defendant was in imminent danger of physical harm, and that there was a direct causal relationship between breaking the law and preventing the harm. The judge also noted that the defense requires an "emergency situation" and that the state's "standard for the necessity defense is high." The judge found that the defendants' argument that the climate crisis demands immediate action, that legal alternatives have failed, and that civil disobedience is capable of creating change satisfied this test.
Kelsey Skaggs of the Climate Defense Project, which is working with the defendants and provided pre-trial briefing, said, "This is a very important step forward in the legal side of the movement to stop unchecked fossil fuel extraction. By recognizing the strength of the defendants' arguments in favor of direct action, the court acknowledged both the scope of the climate crisis and the people's right to act when their leaders fail them. This decision will make it easier for other courts to follow suit."
At trial, the defendants plan to put experts on climate science, pipeline safety, and civil disobedience on the stand. Prior to the judge's decision, they submitted two lengthy briefs and affidavits from climate scientist Jim Hansen, activist and writer Bill McKibben, and Professors Tom Hastings of Portland State University and Martin Gilens of Princeton University. Attorney Tim Phillips and the Civil Liberties Defense Center are part of the activists' defense team.
... Other "Shut It Down" defendants have likewise tried to raise the defense, with less success. In June, Ken Ward was found guilty of burglary in Washington, after a first trial that ended in a hung jury and the judge blocked his necessity defense. Last week, after a judge prevented necessity evidence, Michael Foster and Sam Jessup were convicted of felonies in North Dakota. In Montana, Leonard Higgins has been barred from arguing necessity at his trial in November. Activists and attorneys hope that Friday's decision will be useful in any appeals of these decisions and in future climate necessity defenses.
EXCERPT: ... On May 11, 2017, prior to the contested omnibus hearing, Defendants submitted three affidavits from various experts in support of Defendants' necessity defense. At the contested omnibus hearing, all four Defendants testified in support of the necessity defense. The State did not present any witnesses. The Court allowed the parties to simultaneously file any additional briefs by September 15, 2017. Both parties timely filed additional briefs. On August 17, 2017, Defendants filed expert declarations. The Court took the matter under advisement on September 18, 2017...
ENTIRE TEXT: BAGLEY -- A judge will allow two women accused of trespassing and tampering with Enbridge pipeline valves to argue during their trial that they felt they had no choice but to disrupt the pipeline company's transportation of tar sands.
Judge Robert Tiffany ruled Wednesday that Annette Klapstein, 64, of Bainbridge Island, Wash., and Emily Johnston, 50, of Seattle, could present a necessity defense during their trial, set to begin in December. Tiffany's ruling came almost two months after the two women testified in a contested omnibus hearing that they believed they had to take action against Enbridge in order to slow or halt climate change.
Johnston and Klapstein, along with Benjamin Joldersma, 39, of Seattle and Steven Liptay, 37, of Brooklyn, N.Y., were arrested Oct. 11, 2016. Johnston and Klapstein allegedly used bolt cutters to cut padlocks and chains in order to access a pipeline facility near Leonard, Minn. Liptay, a documentarian and photojournalist, documented the act and Joldersma went along to help with safety precautions.
Klapstein, Johnston and Joldersma are all charged with felonies stemming from the incident. Liptay is charged with two gross misdemeanors.
Johnston and Klapstein's attorney Timothy Phillips notified the court of his intent to use the necessity defense in December of 2016. Prosecutors objected to the defense, which is used to shield people who must break the law in order to prevent a greater harm.
In a memorandum filed in February, Phillips wrote that the activists' actions "were motivated by the need to mitigate catastrophic climate change and its effects on public health and the natural environment."
The group had taken lawful action to try to stop the transportation of tar sands, attorney Timothy Phillips wrote, but "The economic power of oil, gas, and coal companies, exacerbated by corruption and the evisceration of public participation in policymaking, have blocked government action on climate change, leaving no reasonable legal alternative for individuals seeking to avert its ongoing harms."
Johnston and Klapstein, both charged with criminal damage to property of critical public service facilities, utilities and pipelines, aiding and abetting criminal damage to property of critical public service facilities, utilities and pipelines, trespassing on critical public service facilities, utilities and pipelines and aiding and abetting trespassing on critical public service facilities, utilities and pipelines are scheduled to go to trial Dec. 11.
TAGLINE: A Minnesota judge ruled that three activists charged with felonies can argue they had no legal alternative to protect citizens from climate change impacts.
Excerpts of this 960-word news report are below. In eight places the full article links to news articles on previous court cases and policy decisions so do access this full news report.
A judge in Minnesota has cleared the way for an unusual and potentially groundbreaking defense, allowing climate activists to use the "necessity" of confronting the climate crisis as justification for temporarily shutting down two crude oil pipelines last year.
Robert Tiffany, a district court judge in Clearwater County, Minnesota, ruled on Oct. 11 that three activists who were arrested and charged with felonies last year can argue that they violated the law in order to protect citizens from the impacts of global warming and that they had no legal alternative.
"It is extremely unusual for a court to allow presentation of the necessity defense by environmental protesters," said Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University. "It will be fascinating to see how this trial goes and how much evidence the court allows."
The ruling is only the third time a judge in the United States has allowed for such a defense in a climate case. The first case, in Massachusetts in 2014, did not go to trial after the prosecutor dropped the charges. A judge allowed the necessity defense in a Washington State case in 2016 but then instructed jurors they could not acquit on necessity. "Only a few courts have allowed presentation of the climate necessity defense, and until Friday, no judge in a jury trial in the United States had recognized the defense in writing," the Climate Defense Project, a legal nonprofit that provided pre-trial briefing and is part of the defendants' legal team, said in a statement.
...The defense tactic is widely seen as an attempt to focus attention on controversial government policies by forcing jurors to pass judgment on the morality of such policies and of individuals' resistance to them.
...Ken Ward, who shut down a pipeline in Washington state, was convicted of second-degree burglary in June and received 30 days of community service. Activists who shut down a pipeline in North Dakota were convicted on felony charges earlier this month and are awaiting sentencing. Activists in Montana are still awaiting trial for a similar act.
In his ruling, Judge Tiffany stated that Minnesota's standard for the necessity defense is high: "To successfully assert the defense, a criminal defendant must show that the harm that would have resulted from obeying the law would have significantly exceeded the harm actually caused by breaking the law, there was no legal alternative to breaking the law, the defendant was in danger of imminent physical harm, and there was a direct causal connection between breaking the law and preventing the harm."
Gerrard said the decision to allow a necessity defense may be part of a growing awareness in the courts of the risks of climate change, including recent rulings on coal leases and natural gas pipelines, that went in favor of closer scrutiny of environmental considerations. "What we are seeing in some courts is there is such frustration at the failure of the executive and legislative branches to act on climate change that some courts are becoming willing to step in," he said....
EXCERPTS: ... In North Dakota earlier this month, valve turner Michael Foster was convicted of two felonies and a misdemeanor, while Sam Jessup, who livestreamed Foster's protest, was convicted of one felony and one misdemeanor. Climate experts including Dr. James Hansen "the father of modern climate change awareness" traveled to North Dakota to appear in court but were barred from testifying.
This latest case in Minnesota involves valve turners Emily Johnston and Annette Klapstein as well as videographer Steve Liptay and support person Ben Joldersma, who will be tried separately but are also allowed to present a necessity defense.
"What we did is not in dispute," said Klapstein. "The only question before the jury will be whether our action was necessary to prevent imminent climate catastrophe. Now we'll be able to present evidence connecting the devastation we're seeing from hurricanes in the Caribbean to wildfires throughout western North America to an oil-soaked political system utterly failing to respond."
"Finally, we'll get to bring climate experts into a court of law, to describe the distance between our current reality and what physics demands of us if we hope to leave a stable planet for our kids," said Johnston. "Doing so means there's an outside chance we can bridge that distance and we need every chance we can get."
Hansen who told Common Dreams that he believes jurors would have found Foster and Jessup innocent if a necessity defense were allowed in that case is expected to testify in support of the Minnesota defendants.
"The whole planet will be inside a single courtroom the day this trial begins," said climate activist Bill McKibben, another potential expert witness. "It's a rare chance to explain precisely why we need to act, and act now."
EXCERPTS: MINNEAPOLIS (AP) - A Minnesota judge has taken the unusual step of allowing four protesters to use a "necessity defense," enabling them to present evidence that the threat of climate change from Canadian tar sands crude is so imminent that they were justified in trying to shut down two Enbridge Energy oil pipelines last year.
Emily Johnston and Annette Klapstein freely acknowledge they turned the emergency shut-off valves on two pipelines on Oct. 11, 2016, in Clearwater County in northwestern Minnesota. It was part of a coordinated action by Climate Direct Action activists to shut down five pipelines that carry tar sands crude from Canada to the U.S. in Minnesota, North Dakota, Montana and Washington state. A total of 11 activists were charged.
Johnston and Klapstein, who are from the Seattle area, said Tuesday that as far as their legal team knows, this is the first time that a judge has allowed a full necessity defense on a climate change issue. They cited recent hurricanes and Western wildfires as evidence that climate change is making natural disasters worse, and they say tar sands oil contributes disproportionately because it generates much more carbon dioxide than other oil.
... "It looks like we're going to be able to bring in all our experts and present our evidence of how dire climate change is, so we're pretty excited about that," [Klapstein] said.
Michael Foster, of Seattle, was convicted Oct. 6 of targeting the Keystone pipeline in North Dakota. His judge barred him from using a necessity defense. He now faces up to 21 years in prison when he's sentenced Jan. 18. A defendant who filmed him was convicted of conspiracy and faces up to 11 years.
Johnston and Klapstein are due to go on trial Dec. 11 on felony charges of criminal damage to critical public service facilities and other counts. The charges carry maximum terms of over 20 years in prison, though prosecutors have said the most likely penalty is up to a year in jail. Two defendants who filmed them will stand trial together later on lesser charges.
In an order Friday, Clearwater County District Judge Robert Tiffany said the four defendants must clear a high legal bar.
In Minnesota, Tiffany wrote, a defendant asserting a necessity defense "must show that the harm that would have resulted from obeying the law would have significantly exceeded the harm actually caused by breaking the law, there was no legal alternative to breaking the law, the defendant was in danger of imminent physical harm, and there was a direct causal connection between breaking the law and preventing the harm." The judge said it applies "only in emergency situations where the peril is instant, overwhelming, and leaves no alternative but the conduct in question."
The defense will have to persuade a jury in a sparsely populated county where Enbridge is a major employer and the largest property taxpayer. Enbridge condemned the Minnesota protest as "dangerous and reckless." The Calgary, Alberta-based company said it temporarily shut down the pipelines itself as a precaution.