On October 11, 2016, five brave climate activists closed valves on the four pipelines carrying tar sands oil into the United States from Canada. Tar sands oil is one of the dirtiest fossil fuels requiring intense environmental destruction, obscene amounts of fresh water, and undisclosed toxic chemicals to transport and refine it into a carbon-intense fuel. This direct action shut down 15% of US crude oil imports for nearly a day, thereby reducing carbon emissions—a display of the magnitude of the shifts that are necessary to avoid complete climate collapse.
In order to ensure that the pipelines would be safely shut down, a call was placed to each company’s emergency response and control number fifteen minutes before valve turners entered the sites, alerting them of the situation and giving them ample time to shut each pipeline down.
The valve turners filmed their actions to use their court cases to educate jurors and assert the climate necessity defense at their trials. The intent was to argue that their actions were not only necessary, but morally and legally justified, in order to avoid the catastrophic harm caused to humanity and all life on Earth by unprecedented climactic disruption.
THE LEGAL DEFENSE
Without question, CLDC stepped in to provide free legal representation for the Valve Turners, and became lead legal counsel in the cases of Ken Ward (WA), Leonard Higgins (MT), Emily Johnston and Annette Klapstein (and Ben Joldersma) (MN). One Valve Turner (Michael Foster (ND) was represented by other parties. We want to thank cooperating attorneys without whom we couldn’t have done it: Ralph Hurvitz (Seattle, WA), Herman Watson, IV (Bozeman, MT), Tim Phillips (Minneapolis, MN), and Alice Cherry and Kelsey Skaggs (San Francisco, CA).
The Valve Turners were charged with felonies including Sabotage, Burglary, Criminal Mischief, and other critical energy infrastructure crimes. All of their cases, aside from Ken’s, have made their way through the court system, by and large setting positive precedent for the necessity defense that can be used by activists for many years to come. In almost all of the Valve Turner trials, multiple jurors came up to us and our clients to thank us for educating them about climate change and for trying to do the right thing—although they also mentioned that they’d prefer we didn’t come back to their county next time…
“All in all, I think the Valve Turner cases were an excellent example of activists and lawyers working together to use the legal system and court rooms to advance climate advocacy, outreach, and education in rural areas where fossil fuel industries prevail and activists rarely set foot in. We kept activists out of jail (except for Michael); we prevented them from having to pay exorbitant restitution amounts to the pipeline companies; and we created statewide precedent in Washington and Minnesota. Pretty darn good for five activists,” Lauren Regan, lead attorney in the cases, said.
All of the Valve Turners attempted to make the case of the necessity defense for their actions. Traditionally, the necessity defense is used when the crime committed was necessary to prevent a greater harm. To apply this to climate actions is to change the way that mainstream society is currently viewing climate change. In support of the Valve Turner’s argument that our society is in danger, and that the legal channels are not creating sufficient change, so illegal action must be taken to prevent that harm, CLDC was lead attorney on the following cases:
MINNESOTA: The trial judge granted our demand to use the climate necessity defense, the State prosecutor appealed the decision, the Court of Appeals ruled in our favor, and they appealed again resulting in a July 2018 Minnesota Supreme Court ruling that the defendants and the climate crisis met the requirements — an “emergency situation , where peril is imminent and the defendant has no other option but to violate the law.” This ruling thus created state-wide binding precedent regarding the standards that must be applied when an activist asserts the necessity defense. At trial in October 2018, the trial judge acquitted all of them of multiple felonies after defense counsel made a motion for judgment of acquittal after the State rested its case. Although rarely granted, the trial Judge read from a pre-written document and granted the defense motion ruling that the State had not met their burden of proof as to the charges. Although an acquittal in a direct action case involving multiple felonies is always a major victory, the ruling forestalled our ability to put on our climate necessity defense including the expert testimony that had been prepared.
MONTANA: Although the trial judge denied Leonard Higgins the “compulsion defense” (Montana does not have a necessity defense per se), no fines or jail time were imposed, and only a fraction of the huge restitution money Enbridge had requested was awarded. The appellate court affirmed the trial court’s denial of the compulsion defense.
WASHINGTON: After the trial court denied the climate necessity defense for Valve Turner Ken Ward, we went to trial, which resulted in a hung jury (meaning not all jurors could agree to convict). The State prosecutor elected to re-prosecute Ken a second time. We again asserted the climate necessity defense, and again the trial judge denied it. We went to trial and again the jury could not convict on the sabotage charge, but did find him guilty of burglary. We appealed to the Washington Court of Appeals, and in April 2019 Ward’s conviction for burglary was reversed and remanded by the Appellate Court. The Court ruled that the trial judge had violated Ward’s Sixth Amendment rights by refusing to allow him to present evidence of the necessity of his actions to a jury of his peers, including expert testimony from climate scientists and civil disobedience experts. The State then sought further review by the Washington Supreme Court, but in September 2019 the Supreme Court denied the request, establishing Washington State precedent recognizing the necessity defense for direct action to prevent catastrophic climate change. Unbelievably, the Skagit County District Attorney has decided to use tax dollars to prosecute Ken a third time—this time with a full climate necessity defense allowed. We look forward to presenting this case whenever the global COVID 19 pandemic allows jury trials again—or when the District Attorney removes himself from the back pocket of Kinder Morgan (the tar sands oil pipeline corporation).
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