Valve Turners: Linked lists of news and videos
The Valve Turners (USA)
Linked Lists of News Articles and Videos

  

7-MINUTE VIDEO: Shut It Down Today

Original composite video of the FIVE VALVE TURNERS in action in FOUR STATES on October 11, 2016:

• Ken Ward - Washington • Leonard Higgins - Montana • Michael Foster - North Dakota • Emily Johnston - Minnesota • Annette Klapstein - Minnesota
Main Website: SHUT IT DOWN TODAY

News: Facebook "Climate Direct Action"

Also: Climate Disobedience Center
         Climate Defense Project


  
VIDEO + TRANSCRIPT (Democracy Now! TV)

Climate Direct Action:
Activists Halt Flow of Tar Sands Oil
By Shutting Off Valves of Five Pipelines

October 12, 2016    (12 minutes)



This archival news and video list is arranged chronologically. Internal links go to:   •  2015   •  2016   •  2017   •  2018

• WA valve turner Ken Ward:
    Arraignment  •  Pre-trial hearing  •  First trial  •  Pre-retrial hearing  •  Re-trial  •  Sentencing  •  Appeal

• MT valve turner Leonard Higgins with support Reed Ingalls:
    Arraignment  •  Pre-trial hearing  •  Trial  •  Sentencing

• ND valve turner Michael Foster with support Sam Jessup:
    Trial (and ruling against necessity defense)  •  Sentencing

• MN valve turners Emily Johnston & Annette Klapstein with Ben Joldersma & Steve Liptay
    Pre-trial hearing  •  Necessity defense granted  •  Necessity defense appeals court hearing
    Necessity defense upheld by Court of Appeals  •  MN Supreme Court nec-def victory  •  MN trial

• Church sermons by valve turners (videos):   Ken Ward (UCC)   •   Emily Johnston (UU)
    Michael Foster 1 (UU)   •   Michael Foster 2 (UU)   •   Michael Foster 3 (UCC)

• Climate Necessity Defense: To quickly access the most significant statements and court outcomes re this landmark aspect of defense, do an internal "find" for two asterisks:** As of 23 October 2017, following gains in use of the necessity defense in forthcoming jury trials for climate direct actions in 2016 in Minnesota and Washington state, 84 Congressional representatives petitioned the U.S. Department of Justice for clarification on whether federal laws could be applied. That petition and subsequent news articles can be accessed here: USA Dept. of Justice.

• Latest News: skip to most recent   •  or scroll down to see all posts




  
Canadian Valve Turners Did It First!
(2015)

January 13, 2017 - TEXT: "COURT: Enbridge 'disappointed' with outcome of case, says company spokesperson", by Sara Simpson and Neil Bowen, Sarnia Observer (CANADA)

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.
VIDEO: "Activists Shut Down Enbridge Line 9 in Canada Again! *The Indignants*"   (3 minutes)

For more news articles, GOOGLE these words: Vanessa Gray pipeline Sarnia.



2016 News • Valve Turners USA

   Jay O'Hara was offsite on October 11, serving the valve-turning actions by alerting pipeline companies by phone (photo far left) to the presence of climate activists onsite, so that the companies could choose to remotely shut down oil flow minutes before the actual valve turnings.

Just two days earlier...


• October 9, 2016 - Jay O'Hara was the keynote speaker (photo above) at a church gathering in Seattle of the Faith and Climate Action Conference. His talk can be accessed on youtube:
"The Moral Necessity of Climate Disobedience".

• October 11, 2016 - "Enbridge oil pipelines in Minnesota among five targeted by environmental activists", by John Myers, Duluth News Tribune

• October 12, 2016 - "Activists disrupt key Canada-U.S. oil pipelines", by Nia Williams, Reuters

• October 12, 2016 - "Documentary filmmaker arrested at Canada-U.S. pipeline protest", by Dan Whitcomb, Reuters

• October 12, 2016 - "Here's How Easy It Is to Sabotage America's Energy Grid", by Reuters, in Fortune

• October 13, 2016 - "Daring U.S. pipeline sabotage spawned by lobster boat coal protest", by Nia Williams and Laila Kearney, Reuters [unique article with many quotes from Climate Disobedience Center founders]

• October 13, 2016 - "Celebrities rally behind filmmaker arrested in pipeline protests", by Dan Whitcomb, Reuters

• October 18, 2016 - "A Disturbing Trend: Documentary Filmmakers Arrested for Doing Their Job", by Paula Bernstein, Filmmaker Magazine

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."...
• October 19, 2016 - "Q&A with Filmmaker Deia Schlosberg on Her Arrest While Filming an Activist Shutting Down a Tar Sands Pipeline", by Ashley Braun, Desmog.
EXCERPTS: In an exclusive interview with DeSmog, Schlosberg shares her experience, including what it's like being a reporter facing felony charges with a potential maximum sentence of 45 years, her reaction when Edward Snowden tweeted about her, and a message for other journalists covering climate change and the oil and gas industry. "I did not ever intend to be the story. It's safe on this side of the camera usually," Schlosberg told DeSmog...."I'd say make sure you're following the law and keep doing your job. Keep being brave and reporting on the important things that are happening. It's scary, but I think it's more important than ever that anything related to human rights and climate change is reported."
• October 20, 2016 - "Three arrested for oil pipeline 'sabotage' in Skagit County include two filmmakers", by Amy Radil, KUOW (audio + text)
EXCERPTS: Three people were arraigned in Skagit County Superior Court Thursday on charges related to Oct. 11 demonstrations against oil pipelines. A lawyer said two of those people are journalists who did nothing to warrant the criminal charges
     Ken Ward is an activist with the Climate Disobedience Center. As part of those demonstrations, he's accused of breaking through a fence and shutting down a valve in the Kinder Morgan Trans Mountain pipeline near Burlington. That pipeline brings Canadian oil from Alberta to refineries in Anacortes. Two other people were watching from outside the fence: Lindsey Grayzel and Carl Davis, who lawyers say are making a documentary about Ward.
     Ward posted his video in which a Skagit County deputy approaches the filmmakers, telling them, "You don't have permission to be on this property. So now's your chance to go back. If not, you will be arrested also." Court documents suggest they complied. But all three were arrested that day and charged with the same felonies: burglary, criminal sabotage and being part of an assembly of saboteurs.
     "These two latter crimes were adopted in the state of Washington early last century in an effort to combat the militant labor union, the Industrial Workers of the World," said Grayzel's attorney Neil Fox. He said it's fairly unprecedented for journalists to face those charges in Washington, but it resembles the rioting charge filed against "Democracy Now!" host Amy Goodman during similar protests in North Dakota. This week a judge there dismissed that charge...
• November 15, 2016 - "Anti-pipeline activists appear in MN court", by Grace Pastoor, The Globe (Worthington Minn.)

• November 15, 2016 - "Trump's Election Overshadows Energy Pipeline Protests Around The U.S", by Marie Cusick, NPR

EXCERPT: ... In a more brazen move last month, climate activists simultaneously disrupted the flow of millions of barrels of crude oil traveling from Canada into the U.S. on five pipelines. They turned off valves and live-streamed it all on Facebook.
     Seattle-based climate activist Emily Johnston targeted a pipeline in Minnesota and was among 11 people arrested in four states that day. "Personally, it's quite scary," she says. "But we went into this with our eyes wide open."
     Although Johnston could get more than 20 years in prison, she views the threat of global climate change as a more frightening prospect and believes fossil fuel companies have become increasingly reckless as they expand their infrastructure. "They are themselves in a state of existential crisis because of climate change," Johnston says. "It's making them do really crazy things. As people see that more and more, they fight it."
     She calls the election a "major blow" and says she's still processing the news. "But I fully intend to be back at it and be as strategic as I possibly can, with a lot of other smart people," she says...
• November 15, 2016 - "We Can No Longer Hope to Win This By Simply Voting or Speaking Out", by (valve turner) Emily Johnston, in Common Dreams.
EXCERPTS: ... We live-streamed everything, and waited over an hour for the sheriff to come and arrest us. We were aware of the potential consequences, and we accept the risks. I'll speak for myself alone. I dread the thought of going to prison — being away from my loved ones, and away from the natural world and the daily rhythms that sustain me. But far more, I dread the devastation to every life on this planet if we keep on going as we are. Between risking my access to what I love, and risking what I love, there is no comparison, and that was the only choice before me...
     I have worked with all my heart for years on climate change: turning people out to hearings, writing, organizing, engaging in a seemingly quixotic blockade of an Arctic drilling rig in my kayak. We've run out of time, and there is no law we could be lobbying for that would make the difference right now. The political landscape is simply wrong — so we have to engage in powerful, creative, and sustained peaceful resistance in order to change that landscape; such resistance is the only thing that has ever done so on a short time frame such as the one we have...
     Politicians must do their jobs, and respond with the utmost resolve to the threat that we are facing; until they do, business as usual is a dire threat to us all. Every life on earth depends on our collective willingness to do the right thing — right now. We are many, and together we are tireless. We do this work out of love, and we know that nothing has ever been more necessary.
• December 1, 2016 - "How 5 activists stopped the flow of Alberta Tar Sands oil into U.S.", by Emily Green, Street Roots News (Portland, OR)
   EXCERPTS (focusing on Higgins) - ... Higgins was living in Corvallis when he retired from state government in 2010. He had spent much of his career transferring burdensome government application processes, such as filling out unemployment applications and registering to vote, to online platforms. He said he always felt he was working toward the "greater good" but began to re-evaluate if he had made enough of an impact with his life's work after his father died. At the end of his life, his father "didn't have any sense of contribution," Higgins said. He didn't want to have that feeling on his own deathbed.
     In 2012, he founded the Corvallis chapter of 350.org and has been actively fighting climate change ever since. As the climate situation has worsened, his involvement in the movement has been increasingly brazen. In December 2013, he was arrested for blocking the transportation of tar sands extraction equipment through Umatilla when he and another activist locked themselves to trucks carrying the mega-load.
Their action was part of a larger protest and plea from tribes of the Umatilla, Yakama, Warm Springs and Nez Perce to keep the more than 900,000-pound caravan from moving across their tribal lands. At age 61, it was the first time in his life that he had been arrested.
     The following year, he traveled to New York for the People's Climate March, and later he moved to Coos Bay, where he would stay for four months to fight the proposed liquefied natural gas export terminal that was eventually rejected by federal regulators. In May of this year, he was arrested with 51 other protesters for blocking railroad tracks leading to oil refineries in Anacortes, Wash. When the opportunity arose to shut down a pipeline, he didn't think twice... Higgins said the last thing his group wanted to do was cause a spill, but "we felt that the risk we took doing this is so much less than the risk of doing nothing in the face of the emergency that confronts us." ... "In the Pacific Northwest, we've been whack-a-mole fighting the huge number of proposals for fossil fuel infrastructure, and one at a time, stopping them," Higgins said, "but that doesn't even start to get to the fact that we need to begin ramping back on emissions." ... "It's an emergency, and people are not acting as though it is an emergency, and so people don't believe that there is one," Higgins said.
     He and the Valve Turners hoped their actions would alert others to the urgent need to take action to roll back emissions. "We are already in climate catastrophe, and we are headed into much worse," said [Annette] Klapstein, one of the two Valve Turners deployed to Minnesota. "Our political system has proved itself unwilling and unable to deal with it. It's utterly unresponsive." As an activist who's been in the climate fight for some time as a member of the Seattle Raging Grannies, she said she feels she has run out of legal options. As an older retired person, she said it's her obligation to put herself and her body on the line:
"I don't have a job to worry about anymore; my kids are grown and independent," she said. "There is nothing more important to me than trying to ensure there is some level of habitability on this Earth for my children — all children and all future generations. If we don't turn it around now, there won't be future generations. We have gone so far down the road with climate change that civilization collapse is very nearly inevitable at this point, at some point in this century, and if we keep going down this road, I think human extinction becomes more and more probable. We will no longer exist as a species, and I find that beyond horrifying."
Note: The final part of this lengthy article details the substance and history of use of the "necessity defense."

• December 6, 2016 - "Leonard Higgins Arraigned", Statement of Leonard Higgins, posted on 350Montana.org

EXCERPTS: I'm Leonard Higgins. I'm here in front of the Chouteau County Court House in Fort Benton, Montana ... The valve closure was coordinated with the shut down of four other pipelines transporting tar sands from Alberta Canada to the United States. We acted in prayerful solidarity with the Standing Rock Sioux and out of love for our families and communities.
     I lived a law-abiding life of responsibility in the workforce for 40 years to support my family and succeed in a career. Now I see my children, grandchildren and other loved ones' lives threatened by runaway climate change. Our country has known for decades that a steady, job preserving shift away from fossil fuel energy sources to renewables was necessary. Instead political and business leaders allowed that opportunity for a steady, easy changeover to slip through our fingers. They are working together instead to prolong fossil fuel profits even though the pollution from extraction, shipment and burning of those fuels is literally killing us. Our increasing use of fossil fuels is doing irreversible damage to the ecosystems that support life. Gradual reductions are no longer enough to save life as we know it for our children and communities.
     I was compelled to take direct action because lives are already being lost to climate change and there is an imminent threat to the lives of our children and communities. Based on the science and continuing inadequate and harmful actions of government and business, it's reasonable to conclude all our lives will be damaged and many lives lost if I and we fail to act.
     We're out of time and we can see there is no hope that our leaders have the resolve and ability to immediately and dramatically reduce carbon emissions. My responsibility to community, to the rule of law, and to my children and grandchildren now requires me to break laws protecting corporate profits to prevent the greater harm of doing nothing...
• December 8, 2016 - "Oregon activist Leonard Higgins shares the story of how he shut down oil for a day, by Alex Sakkariassen, blog in Missoula Independent

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."
• December 14, 2016 - "Activists Who Closed the Emergency Shutoff Valves on Tar Sands Pipelines: 'This Is an Emergency'", by Sarah Bernard, Seattle Weekly


   VIDEO: Kathleen Dean Moore Face-Time Interview with Valve Turners

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.)


   VIDEO: "Tars Sands Valve Turners Direct Action"

Recorded 12/12/16 at the Sole Repair Shop event space in Seattle. All five Valve Turners spoke and responded to questions at this event.

Scroll through the list directly below for a time-coded table of contents. Then click directly on the embeded video left and move the red time cursor to match the time-code for what you want to watch

(58-minute video)


 


   VIDEO: Leonard Higgins (Montana Valve Turner) Speaks in Missoula

Recorded December 7, posted December 22
(four episodes at event hosted by 350 Montana)

Episode 1 (12 min) - timecode 08:37 speaks of upcoming jury trial & "necessity defense"

Episode 2 (24 min) - timecode 03:50 details on why chose this action & how did it safely, openly

Episode 3 (25 min) - timecode 09:54 on media, Standing Rock alliance, why existing pipelines

Episode 4 (21 min) - timecode 13:26 story of "Lobster Boat" action stops coal tanker, Boston

   VIDEO: Leonard Higgins, Valve Turner, Arraigned

Recorded December 6, posted December 14, 2016

00:03 - summary of action info and location
02:05 - Leonard's post-arraignment speech outside courthouse (incl why acted)

Full text of Leonard's arraignment speech



2017 News • Valve Turners USA

LISTED CHRONOLOGICALLY

 
Judicial Schedule for 2017

• KEN WARD - pre-trial hearing January 25; trial January 31 (hung jury); retrial pre-hearing May 12; retrial June 5 (split decision); sentencing June 23; trial on appeal of burglary conviction TBA 2018

• MICHAEL FOSTER - Trial October 3 (conviction); sentencing February 6, 2018

• LEONARD HIGGINS - Pre-trial hearing May 11; trial November 21 (conviction); Sentencing March 20, 2018

• EMILY JOHNSTON & ANNETTE KLAPSTEIN - Pre-trial hearing August 15; necessity defense granted October 11; trial TBA 2018



• January 18, 2017 - "Ken Ward Is Willing to Go to Jail for the Rest of His Life to Fight Climate Change. What About You?", by Leah Sottile, Willamette Week

   VIDEO: Ken Ward Records Thoughts 1 Day Before Action"

Recorded October 10, posted January 23    (2 minutes)

• January 25, 2017 - "Oregon Environmentalist Ken Ward Will Not Be Allowed a Necessity Defense in His Criminal Trial", by Leah Sottile, Willamette Week

• January 26, 2017 - "Why I risked jail time to shut down an oil pipeline", Opinion piece by Emily Johnston, Seattle Times

• January 28, 2017 - "Should Citizens Be Allowed to Protest Pipelines? There's a Major Fight in the Courts Brewing", by Annette Klapstein, AlterNet

• January 30, 2017 - "Facing Decades in Prison, Climate Activist Says We Have 'No Choice But Direct Action'", by Lauren McCauley, Common Dreams

• January 30, 2017 - "Trial opens for activist charged in pipeline disruption", by Dan Whitcomb, Reuters

• January 30, 2017 - "Anti-pipeline activists and film-makers face prison, raising fears for free press", by Sam Levin, The Guardian (U.K.)

• January 31, 2017 - "Judge in environmental activist's trial says climate change is matter of debate, by Sam Levin, The Guardian (U.K.)

• January 31, 2017 - "#ShutItDown Trials Begin: 'We must stop the fossil fuel industry in its tracks'", by Andy Rowell, Oil Change International

   VIDEO: "Emily Johnston and Jay O'Hara Summary of Ken Ward Trial" (prior to jury decision).

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.

January 31, 2017    (9 minutes)


KEN WARD TRIAL RESULT - February 1, 2017 - "Trial of Oregon Climate Change Activist Ends in Hung Jury: Ken Ward walks ... for now", by Leah Sottile, Willamette Week

   VIDEO KING 5 TV: "Jury Deadlocks in Oil Pipeline Activist Trial"

February 1, 2017    (2 minutes)

   VIDEO: Michael Foster and Abby Brockway comment on "hung jury" outcome of Ken Ward's trial

February 1, 2017    (15 minutes)


• February 2, 2017 - "Valve Turner Case a Mistrial, But Also a Warning for Direct Action Activists", by Valerie Schloredt, YES! Magazine

• February 3, 2017 - "Washington State Jury Refuses To Convict First Valve Turner in Four State Tar Sands Pipeline Action", anon, Free Speech Radio News

• February 3, 2017 - "Pipeline Valve-Turners Fight for Peaceful Disobedience", by KiMi Robinson, TruthDig


   VIDEO: "Michael Foster - Valve Turner who shut down a Tar Sands Pipeline in North Dakota"

February 3, 2017    (6 minutes)


•** 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.
• February 5, 2017 - "Jury Nullification Results in Hung Jury for Climate Activist", by Steve Hanley, CleanTechnica


SONG:"Act of Love" (February 2017)

   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.


VIDEOS: MICHAEL FOSTER guest sermon at UU Church, Goleta CA    (Recorded February 12, 2017)

While many churches have thus far served as local venues for climate activist groups to host events featuring the VALVE TURNERS in Washington, Oregon, and California, Live Oak Unitarian Universalist Congregation in Goleta CA stepped forward to be the first church to welcome a Valve Turner into the pulpit at a Sunday morning service. The entire 7-minute Valve Turner Video was played during the service, prior to the sermon; this set a crucial context for the speaker.


VIDEO Dowd & Foster (22 minutes)
AUDIO of Foster (15 minutes)
  
Video of 20-minute Q&A
VIDEOS using
CLOSE-IN CAMERA
featuring
FOSTER'S SEGMENTS
of the UU service.


   Full length VIDEO: Joint Sermon — Dowd and Foster

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)
08:27 VIDEO:"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)
49:52 Michael 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)

AUDIO of Foster (15 minutes)


• February 13, 2017 - "Without Consent: Tar Sands Valve Turners visit UC Berkeley", by Steve Masover, Daily Kos

• February 13, 2017 - "Climate Disobedience in the Time of Trump", by Wen Stephenson, The Nation

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."


   "VIDEO: 'Valve turners' discuss value of civil disobedience", reporting by Joshua Emerson Smith, San Diego Tribune online.
February 14, 2017.

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.


   NEWS: "'Valve Turners' Get Warm Welcome", reporting by Bennett Hall, Corvallis Gazette-Times, 27 February 2017.

"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.

Two videos of the Corvallis event were livestreamed onto Facebook: Video 11 minutes and Video 10 minutes. Key quotes:

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."


• March 6, 2017 - AUDIO: "Meet the Standing Rock Pipeline Protesting 'Valve Turners' Facing Criminal Charges", on The Leonard Lopate Show, WNYC. Valve Turner Ken Ward and documentarian Steve Liptay are interviewed on radio for 17 minutes.



Video 14 minutes
 
Video 17 minutes
 
Video 18 minutes
 
Richly illustrated
3-part VIDEO series
of MICHAEL FOSTER
at Seattle area
middle school

28 February 2017


•** March 10, 2017 - "As Their Trials Begin, Climate Protecting 'Valve Turners' Say 'Shut It Down' Is 'Necessity'", by Jeremy Brecher, Common Dreams (website). Lengthy background article (and supportive advocacy) focuses on the Necessity Defense and the history of how its practice has brought about pivotal changes in America (and is continuing to do so for re-stabilizing climate). Highly recommended for educational purposes in classrooms, churches, and activism meetings.

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."[1]
    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.[2] 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.[3]
    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."

   VIDEO: Guest sermon by Ken Ward at Northshore UCC
     Woodinville WA, delivered 19 March 2017

"Love in a Time of Cataclysm" is the sermon title.

Sermon text is available online.

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."


   VIDEO: Guest sermon by Michael Foster at Saltwater Church
     Des Moines WA, delivered 26 March 2017

Sermon title: "Spiritual Leadings for Direct Climate Action"

AUDIO of sermon

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.


•** March 23, 2017 - "Activists employ 'necessity' strategy in pipeline trials", by Alex Sakariassen, Missoula Independent.
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."


 

• March 30, 2017 - post by Emily Johnston (Minnesota valve turner) on the Shut-It-Down.Today website.


   FILM TRAILER: "The Reluctant Activist (on Ken Ward)

April 3, 2017 - Although the trailer has been released, filming will continue through Ken Ward's retrial in Skagit County WA in late May, with anticipated late summer opening of this documentary.

Click the link above to watch the 02:31 trailer and to read the film's synopsis, which centers on a short bio of Ward.


   "Skagit County Jury Refuses to Convict Six of Those Arrested During 'Break Free' Climate Protests", by Sara Bernard, Seattle Weekly.

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."


   VIDEO: Higgins & Foster - From Climate Despair to Direct Action

April 17, 2017 - Two Valve Turners, along with the documentarian facing charges for filming the action in North Dakota (Sam Jessup), 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.

   • The above video is featured (May 2017) on The Work that Reconnects Website


• April 24, 2017 - Guest Post: Emily Johnston on Climate Change, Interconnectedness, and Tolerating Personal Risk, on Climate Defense Project blog.

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.


• May 7, 2017 - "Spinning the Wheel: Corvallis 'valve turner' gambles climate protests will pay off", by Bennett Hall, Corvallis Gazette Times.

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."


•** May 11, 2017 - "Havre judge denies valve-turner Leonard Higgins' 'necessity defense'", by Alex Sakariassen, Missoula Independent.

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."


   VIDEO: Withdrawing Consent - Annette Klapstein and Emily Johnston on shutting down tar sands pipelines

(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


• May 12, 2017 - "In Landmark Climate Activist Trials, Judges Deny Defendants' Requests To Let Juries Hear Evidence About Climate Change", MenaFN.com, via Investorideas.com Newswire.

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.


   VIDEO: Leonard Higgins - What Can I Do About Climate Change?

(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


   VIDEO: Emily Johnston - Withdrawing Consent from Catastrophe
Also in AUDIO

(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."


• May 31, 2017 - Op-Ed by KEN WARD: "In praise of Trump pulling out of the Paris climate pact", The Hill.

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..."


•** Summer 2017 - Essay by KEN WARD: "No Regrets", Earth Island Journal.

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?..."


• June 2, 2017 - "'Valve Turner' from Oregon Faces Trial in Washington for Pipeline Protest", by Ellis O'Neal, KUOW RADIO, OPB FM.

   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.

•** June 7, 2017 - "Split Decision: Valve-Turner and Climate Activist Ken Ward Convicted On One Count", by Sara Bernard, Seattle Weekly.

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..."
•** June 8, 2017 - "Finding Arguments About Climate Change's Urgency Compelling, Jury Renders Split Decision In Criminal Trial of Climate Activist Ken Ward", (source: Shut It Down Today) MENAFN.com.
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."
•** June 12, 2017 - "Rhode Island Native Guilty on 1 Charge; Hung Jury on Sabotage", by Tim Faulkner, Eco Rhode Island News.
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.

•** June 22, 2017 - "Dissidents Ramp Up Direct Action Against Climate Destroyers. Who Will the Courts Defend?", Op-Ed by Ted Hamilton, co-founder of Climate Defense Project, Truthout. (Lengthy educational+advocacy Op-Ed published on the day of Ken Ward's sentencing and that puts the Valve Turner trials in context of other climate direct actions — and the overriding need of securing the 'Necessity Defense'.)

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...

• June 23, 2017 - "Valve-Turning Activist From Oregon Won't Serve Prison Time", by Jes Burns, OPB

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.

• June 23, 2017 - "Ken Ward: Corbett's judicious lawbreaker", Q&A with Ken Ward by Zane Sparling, The Outlook.

EXCERPTS: Q: What inspired you to act?

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.

• June 23, 2017 - "No added jail time for climate-change protester in Burlington pipeline case", by Lynda Mapes, Seattle Times

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.

• June 24, 2017 - "Sentence for "Valve-Turner" Climate Activist Ken Ward: No More Jail Time", by Climate Disobedience Center, in Common Dreams.

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."...


   PROFILE ARTICLE: "Michael Foster Is Defiant", by Kathryn Robinson, July 2017, Seattle Met.

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.


   VIDEO: "Leonard Higgins - 'Valve Turner' on Climate Trial (Montana, 2017)" (12 mins), posted 16 July 2017; filmed 15 June 2017. Filmed at "Bring Your Own Brain" symposium in Missoula, Montana, which was organized by students of Big Sky High School participating in Critical Thinking Communities.

AUDIO (of talk)

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."


Note: You can access on youtube
all speaker videos of this "Free Us from Climate Chaos" symposium. Begin with the 2-minute animated video that explains why critical thinking skills ground the symposium theme. Learn more about this student-led group via this article published on Resilience, 5 July 2017: Five Days that Shook My World, by John Foran.

EXCERPT: In her opening remarks on behalf of the group, Brianna Canning said: "... If Naomi Klein says this changes everything, how convenient for adults now that you have had your fun. Passing your climate debt onto my generation of youth across the planet is the epitome of unfairness. We grew up with adults telling us to pick up after ourselves, and here we are, picking up after you."


   VIDEO: "Michael Foster guest sermon: "What Would Jesus Do?" (33 mins), posted 20 July 2017; filmed 25 June 2017 at UCC Church of Magnolia (Seattle, WA). AUDIO (of sermon)

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.


   VIDEO: Annette Klapstein: From attorney to 'Raging Granny' to 'Valve Turner' (9 mins), posted 25 July 2017; filmed 25 June 2017 at UCC Church of Magnolia (Seattle, WA).

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.)


•** "Putting the Climate Necessity Defense in Front of Juries", by Ted Hamilton (of the Climate Disobedience Center), Earth Island Journal, 17 July 2017. Lengthy background on history and legal structure of the climate necessity defense (and its predecessors), from an advocacy stance, including details on the partial granting of the defense in the "Delta 5" trial and blockage of the defense in the trial of valve turner Ken Ward the prior month.

EXCERPTS RE DELTA 5: ...Last January, climate activists known as the "Delta 5" brought a climate necessity defense after blocking an oil train in Bellingham, Washington. They argued that their protest was necessary to prevent the safety risks associated with oil-by-rail and to inspire grassroots action against climate change, which government regulators had failed to adequately address. At trial, the activists called expert witnesses on rail safety and climate science and made a compelling argument that legal alternatives to civil disobedience had failed because of government intransigence and corruption.
     Even though evidence of necessity had already been presented, the Delta 5 jury would only be allowed to acquit by reason of necessity if the judge decided to include the necessity defense in his jury instructions (which typically describe the charged crimes and guide the jury on how to follow the law in their deliberations). It didn't seem a high bar to clear: in Washington, defendants must offer "substantial evidence" of necessity in order to have a jury instructed on the defense. As in other jurisdictions, this threshold test is simply designed to ensure that courts don't waste their time by asking juries to consider any and every justification that a defendant might come up with. A defense is barred only if no reasonable juror could possibly accept the evidence offered to support it.
     But in the Delta 5 case, the judge decided — after four days of testimony — that the defendants had failed to present sufficient evidence to merit a necessity instruction. Recognizing that the defense had amply described the realities of climate change, the judge nonetheless ruled that "[t]he evidence presented from the defendants fails to establish that there was no reasonable legal alternative to their acts."
     Maybe he was right. Maybe no reasonable juror could have believed that the protesters' actions were necessary, and it was okay for a judge to make that decision for the jury. Except — well, journalists and defendants spoke to jurors after the trial. And they confirmed what the judge had refused to believe. According to Earth Island Journal: "In the halls outside the courtroom, three members of the jury admitted they would have acquitted the defendants had they received a necessity instruction from the judge. They also thanked the defendants for giving them an education on climate change, agreed to support the Climate Disobedience Center [a climate activist group] in future cases, and signed up with defendant Abby Brockway to lobby the state on oil trains."
     Other sources likewise reported how the jurors agreed with the defendants and came to share their concern over climate change. Put simply, the judge's ruling was incorrect: reasonable jurors did believe that the defendants had no legal alternative to their protest, and they would have acquitted by reason of necessity. There was no reason to withhold the necessity instruction...

EXCERPTS RE VALVE TURNER KEN WARD: ... This sad story repeated itself this month in another Washington climate activist case. Ken Ward stood trial on felony charges of sabotage and burglary for entering a Kinder Morgan pipeline facility in Anacortes, Washington last October and turning a valve to cut off the flow of tar sands oil. He acted in coordination with other so-called "Shut It Down" protesters, who together succeeded in temporarily blocking all tar sands oil flowing into the United States from Canada, and whose trial will unfold over the course of the summer and fall. (Read more about Ward's decision to participate in the Shut It Down event in his essay for Earth Island Journal.)
     In January, Ward's judge ruled that evidence of climate necessity would be prohibited at trial, making the same call that no reasonable juror would buy Ward's argument. (At the same hearing, the judge also called into question the reality of climate change). Despite the severe limitation that this put on Ward's ability to defend himself, the jury in Ward's first trial was unable to reach a verdict on either charge, resulting in a mistrial. This should have been a clear signal that reasonable people might find Ward's argument compelling. Nonetheless, the judge refused to allow necessity evidence in a second trial, which ended last month with a conviction for burglary and another hung jury on the sabotage charge. (My organization assisted in Ward's defense.)
     Just as in the Delta 5 case, post-trial polling of the jurors in this case immediately revealed the error of the judge's rulings. Members of the jury told Ward that in deliberations they had sought, but failed to find, a legal way to acquit him — precisely the purpose of the necessity defense. Like the Delta 5 jurors, they had learned a great deal about climate change and intended to take action to address it — precisely the purpose of courtroom activism...


•** VIDEO: Annette Klapstein, Emily Johnston, and Ben Joldersma Reflect on Necessity Defense Hearing (5 mins), filmed 15 August 2017 at Bagley, Minnesota

   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."

* * * * *

•** August 15, 2017 - "Testimony: Group that tampered with pipeline valve felt they had no choice", by Grace Pastoor, The Bemidji Pioneer (local newspaper where trial took place)

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.


   VIDEO: Short biography of Leonard Higgins
(2 mins), posted 22 August 2017 on Facebook

Leonard Higgins speaks of how concern for the future of his children and grandchildren helped motivate him to shut down a tar sand pipeline in Montana, October 11, 2017.

Video clips include his interview and some action shots of the pipeline shut-down (and actions by other Valve Turners).


INTERVIEW: "Bolt Cutters and Chrysanthemums", by C.S. Hagen, 23 August 2017, HPR1.

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.


   ESSAY (incl. interview format/quotations): "One Good Turn", by Kathleen Dean Moore, Sept/Oct 2017 Orion Magazine
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.


   VIDEO: Valve Turner Michael Foster faces trial in North Dakota for shutting down the Keystone pipeline - (3 mins), posted 5 September 2017 on Vimeo

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.


   VIDEO: Valve Turner Emily Johnston faces trial in Minnesota for shutting down Enbridge's Line 4 and 67 pipelines - (3 mins), posted 25 September 2017 on Vimeo

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."


   VIDEO: Valve Turner Annette Klapstein faces trial in Minnesota for shutting down Enbridge's Line 4 and 67 pipelines - (3 mins)

Posted on Vimeo by Steve Liptay, who was lead videographer of the "Shut It Down Today" original video and who will be tried December 2017 in Minnesota for onsite video work with the pair of Minnesota valve turners.


"Native view: Water protectors have little choice but civil disobedience", by Winona LaDuke, Op-ed in Duluth News Tribune, 16 September 2017

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.
"Mainstream U.S. Climate Strategy Has Failed Miserably: So What Now?", by Ken Ward, Alternet, 18 September 2017
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...
RADIO: "Facing Cataclysm and Fighting On, Without Illusions, with guest Ken Ward" - KBOO community supported radio, Portland OR, 20 September 2017.
Note: Since this interview took place during a fundraising drive, Ken Ward's comments (incl. Q&A) occur within these time blocks: 16:00 to 20:00; 26:45 to 40:30; 48:20 to 50:20.


ARTICLES & VIDEOS ON MICHAEL FOSTER'S NORTH DAKOTA TRIAL
reports begin 1 October 2017

•** ASSOCIATED PRESS ARTICLE, "Activists in 4-state pipeline protest embrace unique defense", by Blake Nicholson, published in full in Washington Post 1 October 2017; Fox News (online) 1 October 2017; Des Moines Register (Iowa) 1 October 2017. The story ran in part in The New York Times 1 October 2017.

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.
"Trial underway for pipeline tampering case in northeast ND", by April Baumgarten, Forum News Service, 3 October 2017, Bismarck Tribune.
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.



   OP-ED by Michael Foster: "Why I Turned Off the Keystone Pipeline and Face 22 Years in Jail", by Michael Foster, Newsweek, 3 October 2017.

EXCERPTS of 841-word Opinion:

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.
_____

VIDEO: Climate scientist James Hansen interviewed
by defense attorney Lauren Regan

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."

Note: Video of a 13-minute welcoming dialogue with James Hansen, facilitated by Michael Foster, is also available via Facebook. (Start at 01:45 timecode to avoid audio static.)

Blogpost by Dr. James Hansen enroute to the North Dakota Valve Turner Trial, written 4 October 2017, posted 6 October on the blog page of his website at the Earth Institute of Columbia University, Climate Science, Awareness, and Solutions. [Note: This post is also available in pdf.]

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.

Note: James Hansen posted a second blog entry on this North Dakota trial on October 11. Access "North Dakota Conviction".


   "Barred from Testifying for 'Valve Turners', Renowned Climate Scientist Speaks Out", by Jessica Corbet (staff writer), 5 October 2017, Common Dreams (773 words)

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." ...

"Witnesses denied ability to testify in court for 'Valve-Turner'", WDAZ8 (ABC) television, 6 October 2017.

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.


  

"A Valve Turner's Trial: Mostly Guilty, by C.S. Hagen, High Plains Reader, 6 October 2017.

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.

   VIDEO: "Michael Foster - Valve Turner who shut down a Tar Sands Pipeline in North Dakota", 3 February 2017    (6:26 minutes)

* * *

VIDEO: Michael Foster - Morning After Jury Verdict, 7 October 2017, 3:00 minutes


•** Post-Trial Press Release issued by organizations supporting the defense - 6 October 2017 by Climate Direct Action, Climate Disobedience Center, and Climate Defense Project

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.


•** "Men who shut down Keystone Pipeline in northeast North Dakota found guilty", by April Baumgarten, West Fargo Pioneer, 7 October 2017. Note: same article appears in Grand Forks Herald and Bismarck Tribune.

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.


   "Environmentalist turns emergency shut-off valve for pipeline, faces 21 years in prison", by Ken Chase, WDAZ - ABC television station in Grand Forks ND, 8 October 2017 - 02:45 mins.

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.


   "Team Outreach" Daily Reports re Michael Foster's trial in North Dakota, October 1-9, 2017 by Nicole Bradford (8 pages in pdf)

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?...


"Jury convicts activist who targeted North Dakota pipeline", Associated Press, (in full) as published in Los Angeles Times; New York Times, 8 October 2017; and Seattle Times

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.


   •** "Appeal based on global warming unlikely in activist case", by Blake Nicholson, Associated Press, 10 October 2017.

This ASSOCIATED PRESS POST-TRIAL REPORT, posted from Bismarck ND, is getting broad coverage, both in full and abbreviated, as below:

FULL REPORT in: New York Times; ABC News (national site); U.S. News & World Report; Star Tribune (Minneapolis, MN); Bozeman Daily Chronicle; The News & Observer (Raleigh, NC); The News Tribune (Seattle, WA); CNBC

ABBREVIATED VERSIONS in: Great Falls Tribune; NBC Montana; Skagit Valley Herald (Skagit Valley, WA); Billings Gazette (Montana)

FULL TEXT below ...

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....


   •** BLOGPOST BY JAMES HANSEN (post North Dakota trial), "North Dakota Conviction", 11 October 2017 EXCERPTS:

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.[1]
    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.


AUDIO: Canadian Broadcasting Company 15-minute interview of MICHAEL FOSTER, CBC Radio, 13 October 2017

   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.


•** VIDEO: The Trial of Michael Foster and Sam Jessup (6 minutes) , by Steve Liptay, 4 January 2018.


**NECESSITY DEFENSE AUTHORIZED FOR MINNESOTA VALVE TURNERS
Judge ruled on 11 October 2017

•** Notice Released by Climate Defense Project, 14 October 2014.

   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.
______

•** Judge's Order on Minnesota Valve Turners Necessity Defense, 11 October 2014.

   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...

______

•** "Judge allows necessity defense in upcoming pipeline vandalism trial", by Grace Pastoor, The Bemidji Pioneer, 16 October 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.


   •** Judge Allows 'Necessity' Defense by Climate Activists in Oil Pipeline Protest", by Phil McKenna, Inside Climate News, 16 October 2014.

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....


•** "In Groundbreaking Ruling, Minnesota Judge Allows Climate Necessity Defense In Upcoming 'Valve-turner' Trial", press release by Climate Direct Action, 16 October 2017.

EXERPTS: In a precedent-setting ruling, a judge in Clearwater County, Minnesota has allowed defendants facing criminal charges for shutting down two Enbridge tar sands pipelines to present a "necessity defense" at their upcoming jury trial.  That will permit the defense to call scientists and other expert witnesses, and present evidence on climate harms to support their contention that the immediate threat of catastrophic climate change justified their action.
     While this is not the first time  a court has approved presentation of the necessity defense in a criminal trial of a climate activist, the ruling is a milestone that will have far-reaching implications. "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," according to a statement from the Climate Defense Project, a legal nonprofit that provided pre-trial briefing and is part of the defendants' legal team.
     ... "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."
     "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."
     The first two valve-turners to go to trial — Ken Ward, in Skagit County, Washington, and Michael Foster, together with media support person Sam Jessup, in Pembima County, North Dakota — were not allowed to present necessity defenses. Ward was convicted of one felony. Earlier this month, Foster was convicted on two felony counts and one misdemeanor, and Jessup of one felony and one misdemeanor charge. 
     At Ward's trial, Judge Michael Rickert admitted reluctance in denying the necessity defense, which he said "would be the Scopes Monkey Trial for climate change." Now, it seems, that "Scopes Monkey Trial for climate change" will happen in Minnesota, where Ninth Judicial District Court Judge Robert D. Tiffany signed the order granting necessity defense on Friday. Although the standard for allowing presentation of the necessity defense is a high bar in Minnesota, the judge ruled the standard was met in this case. It requires proof that the defendants avoided a significantly greater harm by breaking the law, that 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. As Judge Tiffany wrote in the order granting necessity defense, "The defense applies only in emergency situations where the peril is instant, overwhelming, and leaves no alternative but the conduct in question."
     Climate activist, author and potential expert witness in the Minnesota trial Bill McKibben noted, "The whole planet will be inside a single courtroom the day this trial begins — it's a rare chance to explain precisely why we need to act, and act now."
     Dr. James Hansen, the world's preeminent climate scientist, is also expected to testify in support of the Minnesota defendants. He traveled to North Dakota to testify in Michael Foster and Sam Jessup's defense, but was barred from doing so. Hansen called that "an egregious error." In a brief submitted to Minnesota's Ninth District Court, Dr. Hansen outlined testimony he expects to offer: "It is my expert opinion that global warming from persistent high fossil fuel emissions is in the danger zone, that CO2 emissions from all such sources must be reduced with all deliberate speed, that the situation is becoming worse with each passing day, and that we are likely approaching climate tipping points from which there is no reasonable prospect of return....[The] defendants by their actions, as I understand them, aimed to prevent the urgent and growing danger, and to turn around the government's failure to date meaningfully to address it."


•** Victory for 'Valve Turners' as Judge Allows 'Necessity Defense' for Climate Trial, by Jessica Corbett (staff writer), Common Dreams, 17 October 2017.

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."


•** "Minnesota judge allows 'necessity defense' in pipeline case", by Steve Karnowski, Associated Press, reprinted 17 October 2017 in: Seattle Times; Washington Post; New York Times; Chicago Tribune; L.A. Times; Miami Herald; U.S. News & World Report; U.K. Daily Mail Minneapolis Star Tribune; Pioneer Press Twin Cities; Minnesota Public Radio; Red Lake Nation News (Redby, MN) Great Falls Tribune; The Olympian (WA); Bellingham Herald (WA); Pipeline & Gas Journal; Alberta Tribune; Tri-City Herald (OR); CNBC; Fox28 (Spokane, WA); ABC News; YourHometownStations (ABC Fox NBC CBS, online)

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.


•** "Climate Necessity Defense Approved By Minnesota Judge In Tar Sands "Valve Turners" Case", press release by Marla Marcum, Climate Disobedience Center, 17 October 2017.

EXCERPTS: ... A climate necessity defense offers a jury a novel scenario: the defendants freely admit to taking the actions for which they have been charged. Instead of seeking to plant doubt in the minds of jurors, the defense provides context for the action, calling expert witnesses to offer testimony about the urgency of the climate crisis, the imminent danger posed by tar sands pipelines, and the historic role of civil disobedience in transforming unjust systems.
     Courts in the United States have not yet allowed a complete necessity defense in a climate activist case, but Judge Tiffany's ruling offers the latest opportunity for activists to use this method of dissent to focus conversation on the failure of government and industry to protect the public and ensure a stable, livable climate system.
     Kelsey Skaggs, Executive Director of Climate Defense Project commented, "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." The Climate Defense Project, a public interest law firm that supports innovative legal defense strategies for climate dissidents is coordinating expert witnesses for the Valve Turner trials.
     In a similar case, tried in Lynnwood, Washington in January 2016, the "Delta 5" defendants were allowed to present expert witnesses at their jury trial. After allowing testimony from five expert witnesses, including a climate scientist and a rail safety expert, Judge Anthony Howard praised the defendants as "tireless advocates whom we need in this society to prevent the kind of catastrophic effects that we see coming and our politicians are ineffectually addressing." Although he praised the commitment of the Delta 5, Judge Howard cited a hesitation to engage the court in "politics" and instructed the jury to disregard the expert testimony, effectively denying a necessity defense.

Editor's note: Judge Anthony Howard is a judge of the Snohomish County Everett Division in Washington. He was elected by voters in 2014, winning a four-year term that begins on January 5, 2015, and expires on January 6, 2019.


•** Why Pipeline Activists On Trial Say, 'We Had To Do It', by Editor, KUOW (NPR), 21 November 2017

EXCERPTS: Last year, five activists from the Pacific Northwest shut off pipelines bringing oil into the US from Canada. All five were arrested and charged with various felonies and misdemeanors. Now, a development in one of their trials could set a new precedent for cases in which climate change activists have been arrested for acts of civil disobedience....
     They're trying a new tactic, a new legal strategy, to try to avert what they think might be catastrophic climate change. All five of them are long-time climate change activists, and they say everything they've tried, including traditional protests and pushes for legislation, is not working nearly fast enough to avert what they predict will be a climate disaster. So they decided to try something more drastic.
     Emily Johnston and Annette Klapstein, the two defendants who shut off pipelines that cross the border in Minnesota, are both from the Seattle area. Johnston says she shut off the pipeline because she's "just much more afraid of climate change than of jail." She adds, "Actions like ours pose a real threat to the system (because) when people see other people of conscience willing to take those risks, I think a lot of people start thinking about, 'You know, what can I do?'" Encouraging others to take similar risks is exactly what Johnston and her fellow activists were going for, and that's the heart of their legal strategy...
     The prosecutors have appealed the use of the necessity defense, and that appeal has to run its course, so now the trial is unlikely to take place before February or March 2018....


•** "For Second Time in a Week, A Judge Allows Climate Necessity Defense, Signaling Shift in Legal Landscape", by Climate Defense Project, 17 October 2017.

FULL TEXT: A judge in Spokane, WA has ruled that a climate activist may present evidence that his act of civil disobedience was motivated by the urgent need to address the climate crisis. Monday's ruling comes in the wake of a similar ruling in a Minnesota case, making it the second time in a week that a court has allowed presentation of the "climate necessity defense" at a trial of a climate activist. Activists and attorneys hailed the two decisions as a sign that courts are finally acknowledging the scale of the climate crisis — and the need for grassroots action to address it.
     The Spokane case stems from a September 2016 action in which Reverend George Taylor participated in a blockade of coal and oil trains by members of Veterans for Peace. The ruling, by Judge Debra Hayes of the Spokane District Court, permits Taylor to call experts and to make argument in court about the science of climate change, the effectiveness of civil disobedience in creating social change, and the lack of alternative routes to addressing the problem. In several prior cases, activists have been barred from presenting the climate necessity defense, with judges making controversial rulings that climate science is unreliable or irrelevant and that defendants' political motivations do not belong in court. Courts in Washington and New York have allowed presentation of necessity evidence before deciding that it was insufficient to support acquittal.
     On Friday, however, Judge Robert Tiffany of the Ninth Judicial Court in Clearwater County, Minnesota issued the first written opinion allowing the defense to be presented at a jury trial in the United States. The decision clears the way for a group of defendants who shut off a tar sands pipeline in October 2016 to make their case in court. That decision was almost immediately followed by the Spokane court's decision, on Monday.
     The necessity defense, which varies slightly by state, usually requires defendants to show that they broke the law in order to avoid a greater harm, that the harm they faced was imminent, and that there were no reasonable legal alternatives to their action.
     "Courts are recognizing that climate change is an emergency and that immediate action must be taken to address it," said Alice Cherry, a staff attorney with Climate Defense Project, which has assisted the activists in Washington and Minnesota and published on its website materials related to the climate necessity defense. "The necessity defense is a powerful tool for climate activists to make the case that their actions were justified. We anticipate that other courts will follow the reasoning of these decisions as the climate movement grows."

Editor's note: The climate necessity defense resources on the Climate Defense Project website include:

  • "Climate Change: What's Law Got To Do With It?
  • "Climate Necessity Defense Info Pamphlet
  • "Political Necessity Defense Jurisdiction Guide"
  • "The Climate Necessity Defense, in Pictures"

  • •** "Spokane judge OK's necessity defense for climate change lawbreaker", by Mitch Ryals, Inlander (weekly news, Spokane),
    18 October 2017.
       Editor's note: This lengthy article mentions the granting of the necessity defense in the Minnesota valve turner court order, but its focus is Rev. George Taylor, the 77-year-old Lutheran pastor in Spokane who refused a plea bargain (taken by his companions) for their 2016 rail blockage of coal and oil trains, opting instead for a jury trial and successfully petitioning the judge for approval of a climate necessity defense.
         District Court Judge Debra Hayes granted the request, following expert testimony in a pre-trial hearing on the climate necessity, as presented by University of Montana climate scientist Steve Running and other experts.
        This news article includes quotations by the defendant and by Professor Running (a forestry professor and Regents Professor of Ecology), along with embedded charts that Running used in his testimony. Running is co-recipient of the 2007 Nobel Peace Prize, as chapter author of the 2007 IPCC climate assessment.

    Access Background information on the Spokane climate action and pre-trial hearing on the necessity defense. (Also, here.)


       Jury verdict and judge sentencing of Leonard Higgins in "Break-Free" trial in Skagit County WA, Break Free PNW Facebook post on 22 October 2017 of judge's statement upon sentencing 20 October LEONARD HIGGINS and 3 colleagues among the 52 2016 "Break-Free" oil-train tracks protesters.

    •** [Note that in the judge's sentencing statement, left, the necessity of climate disobedience is evident in her choice of community service sentence.]

    Dianne Goddard is a judge on the Skagit County District Court in Washington. She was appointed by the Skagit County Board of Commissioners on December 15, 2016, to succeed Judge David Svaren, who was elected to the county's superior court. Goddard took office on January 2, 2017.


    CLIMATE DIRECT ACTION COMES UNDER FEDERAL SCRUTINY
    23 October 2017

    •** "U.S. lawmakers ask DOJ if terrorism law covers pipeline activists", by Timothy Gardner, REUTERS, 23 October 2017

    EXCERPTS: WASHINGTON (Reuters) - U.S. representatives from both parties asked the Department of Justice on Monday whether the domestic terrorism law would cover actions by protesters that shut oil pipelines last year, a move that could potentially increase political rhetoric against climate change activists.
         Ken Buck, a Republican representative from Colorado, said in a letter to Attorney General Jeff Sessions, that damaging pipeline infrastructure poses risks to humans and the environment. The letter, a copy of which was seen by Reuters, said "operation of pipeline facilities by unqualified personnel could result in a rupture — the consequences of which would be devastating." It was signed by 84 representatives, including at least two Democrats, Gene Green and Henry Cuellar, both of Texas.
         The move by the lawmakers is a sign of increasing tensions between activists protesting projects including Energy Transfer Partners LP's Dakota Access Pipeline and the administration of President Donald Trump, which is seeking to make the country "energy dominant" by boosting domestic oil, gas, and coal output.
         Last year activists in several states used bolt cutters to break fences and twisted shut valves on several cross border pipelines that sent about 2.8 million barrels per day of crude to the United States from Canada, equal to roughly 15 percent of daily U.S. consumption.
         The letter asks Sessions whether existing federal laws arm the Justice Department to prosecute criminal activity against energy infrastructure. It also asks whether attacks on energy infrastructure that pose a threat to human life fall within the department's understanding of domestic terrorism law. The Department of Justice acknowledged receiving the letter and is reviewing it, a spokesman said.
         A terrorism expert said it was ironic the lawmakers referred to the law, which defines "domestic terrorism" as acts dangerous to human life intended to intimidate civilians, but does not offer a way to prosecute anyone under it. David Schanzer, a homeland security and terrorism expert at Duke University, said the lawmakers' request of Sessions "won't have any legal ramifications, but possibly could be used for rhetorical value."
         A Minnesota court is considering charges against several protesters suspected of turning the valves on the pipelines last year. District Court Judge Robert Tiffany has allowed the defendants to present a "necessity defense." That means they will admit shutting the valves, but may call witnesses, such as scientific experts, to offer testimony about the urgency of what they say is a climate crisis, activists said.

    Note: A pdf of the original October 23 Congressional Letter to Attorney General Jeff Sessions is accessible online. Among the queries is: "Has the DOJ taken any prosecutorial or investigative action against those involved in the highly publicized October 11, 2016 attempted sabotage of four major crude oil pipelines in multiple states? If not, please explain DOJ's reasoning for not pursuing this case."

    VALVE TURNERS RESPONSE TO CONGRESSIONAL LETTER TO DEPT. OF JUSTICE, by Michael Foster, Leonard Higgins, Emily Johnston, Annette Klapstein, and Ken Ward, 2 pages, 9 November 2017.

    EXCERPTS: ... we would like to take this opportunity to explain directly to you why nonviolent climate direct action is the last resort in a desperate and necessary effort to avert catastrophic climate change....
         At present, thanks to fossil fuel industry funded efforts, we the people cannot turn to our federal government for relief in addressing this single greatest threat to our health, wellbeing and security. Our own government has become an occupying force for interests inimical to our welfare. Our history and tradition shows us that in such a predicament, citizens do have a right, indeed, the obligation, to act in our own defense — directly and forcefully — to address imminent harm. Like those who dumped boxes of tea into the Boston harbor, we take direct action to halt the flow of fossil fuels, the use of which is undermining the conditions that make civilization possible and destroying the web of life which sustains us....
         We acted appropriately, peacefully, openly, carefully and with great concern for safety. Congress should do the same.
    U.S. Justice pledges to prosecute activists who damage pipelines, by Timothy Gardner, Reuters, 10 November 2017.
    EXCERPTS: WASHINGTON (Reuters) - The U.S. Department of Justice on Friday pledged to prosecute protesters who damage oil pipelines and other energy infrastructure, a move that could escalate tensions between climate activists and the administration of President Donald Trump. The DOJ said it was committed to vigorously prosecuting those who damage "critical energy infrastructure in violation of federal law."...
         The DOJ did not say whether it would investigate or prosecute the protesters who broke fences in four states last year and twisted shut valves on several pipelines importing crude oil from Canada that carry the equivalent of as much as 15 percent of U.S. daily oil consumption.... Five of the protesters, who say they only turned off valves on the pipelines, responded to Buck this week in a letter saying that their actions were nonviolent and were the "last resort in a desperate and necessary effort to avert catastrophic climate change." States brought charges against the protesters....
         But Ward said the Justice Department was going after the wrong parties. "In a sane world, the DOJ would be using its discretion to prosecute pipeline and fossil fuel companies for causing irreparable harm to the planet," he said....
    U.S. Lawmakers Urge Attorney General to Look into Prosecuting Environmentalists as Terrorists", by Kevin Gosztola, ShadowProof, 24 October 2017.
    EXCERPTS [re fossil-fuel-company campaign contributions received by some of the signers of the letter]: ... It appears to be an effort to convince the Justice Department to take a far greater role in helping energy interests and affiliated trade groups in their efforts to stamp out dissent against oil and gas operations. Ken Buck, a representative from Colorado and one of the authors of the letter, has received over $400,000 from oil and gas industry interests in his political career. While most of the representatives who signed on to the letter were Republicans, two were Democrats — Gene Green and Henry Cuellar, who are both from Texas. Cuellar has received nearly $600,000 from oil and gas interests in his political career..... As Scientific American outlined, [U.S. Attorney General] Sessions received "nearly $400,000 in campaign contributions from the oil and gas industry over the course of his Senate career, according to the OpenSecrets.org campaign finance database. He has repeatedly voted in favor of expanding drilling and energy production." He also supported legislation to eliminate the EPA's authority to regulate greenhouse gases.
    "Should Iowa's Dakota Access pipeline protesters face terrorism charges?", by Kevin Hardy, Des Moines Public Register (Iowa), 840 words, 25 October 2017.
    Dozens of members of Congress want U.S. Attorney General Jeff Sessions to consider domestic terrorism charges for protesters who oppose pipeline construction projects, like those who rallied against the Dakota Access pipeline in Iowa. 
         In a letter to Sessions this week, 84 members of Congress said that "maintaining safe and reliable energy infrastructure is a matter of national security." They alluded to the national protests sparked by the four-state Dakota Access pipeline, which crosses 18 Iowa counties. While members of both parties signed the letter, no signatures from Iowa's Congressional delegation were included.
         In addition to nonviolent demonstrations across the nation — most notably in North Dakota near the Standing Rock Sioux reservation — opposition to Dakota Access included physical vandalism and trespassing on construction sites. In Iowa alone, hundreds were arrested for protesting on work sites. 
         "While we are strong advocates for the First Amendment, violence toward individuals and destruction of property are both illegal and potentially fatal," the letter stated.
         Changes in legal posturing may come too late for those who broke the law fighting the Dakota Access pipeline, which went into operation this summer.
         But law enforcement and elected officials have publicly warned about the long-lasting impacts of the nationwide protests, which have since snowballed into opposition of oil and gas pipeline projects from Florida to Oregon. Across the border in Nebraska, protesters are opposing the revived plan to build the Keystone XL pipeline. Nebraska regulators are expected to decide the fate of that project by November. 
         In addition to exploring possible terrorism charges, the Congressional correspondence asks if existing laws adequately arm the Department of Justice to "prosecute criminal activity against energy infrastructure at the federal level." It also specifically asks whether Sessions will charge those involved in a multi state effort to shut down pipelines in October 2016.  
         The GAIN coalition — short for Grow America's Infrastructure Now — applauded the Congressional effort. That group lobbied hard on behalf of Dakota Access pipeline builder Energy Transfer Partners, arguing that the pipeline would provide jobs and inexpensively and safely move energy across the country.
         But pipeline opponents object to such characterizations. "Terrorism is a really heated word and a very specific word in the American conscience right now," said Ed Fallon, a vocal pipeline opponent. "To apply that to folks — who even if their tactics might be questionable — folks who are concerned about protecting the planet, that's going way too far."
         Fallon, a leader of Bold Iowa, kept close watch over the arrests of pipeline protesters in Iowa: He estimates law enforcement across the state made some 400 arrests. Most of the trespassing charges resulted in fines of about $275, he said.
         Most of those arrested were protesting peacefully, he said. But some were not: In July, two activists confessed to repeatedly damaging Dakota Access pipeline equipment, including burning at least five pieces of heavy equipment on the pipeline route in northwest Iowa's Buena Vista County. 
         Fallon disavows such tactics. But he fears that a hard line from federal prosecutors is an overreach that could end up stifling the First Amendment rights of nonviolent protesters. "I think that's the risk that we run here if this pursuit is allowed to run its course," Fallon said....
         ...The GAIN Coalition — formerly known as the MAIN Coalition — includes unions, chambers of commerce, manufacturing groups and oil and gas interests. The Iowa Association of Business and Industry is a member.  ABI President Mike Ralston said pipeline protests are one thing, but vandalism is just plain illegal. "We always think the law should be followed," he said. 
         Still, he said he wouldn't necessarily label pipeline foes as terrorists. "I had not thought of that characterization when I think of what happened," he said. "I do think it's wrong. Not only is it illegal, it's wrong. (But) I guess I hadn't thought about characterizing it as terrorism."
         Ralston said he didn't see a big need in Iowa to change how law enforcement responded to anti-pipeline activists. "To the best of my knowledge, every case was handled well," he said. "There were legal ramifications for those who disobeyed the law. So yeah, I'm very satisfied with what happened in Iowa."
    • RESPONSE POSTED BY CLIMATE DISOBEDIENCE CENTER: "Fossil Fuel Congress Asks Jeff Sessions To Label Climate Action 'Terrorism'", 25 October 2017
    EXCERPTS: On October 23rd, 2017, 84 members of congress submitted a letter to Attorney General Sessions regarding nonviolent direct action on crude oil pipelines. The letter, backed by American Petroleum Institute, Association of Oil Pipe Lines, and the Interstate Natural Gas Association of America, is a dishonest effort to smear the climate movement, and fabricate a threat in order to legitimate further criminalization of dissent against one of Congress's largest clients: the fossil fuel industry. Rather than doing their job and protecting current and future generations from civilizational collapse caused by run-away climate change, members of Congress are working to protect their funders at the risk their constituents.
         The letter begins the official process of expanding the Patriot Act and domestic terrorism laws to target those who resist fossil fuel infrastructure. The accusation of terrorism hinges on violence to human beings, which has never been even a fringe element of the climate movement. The only violent reference which this Congressional letter could find was Tucker Carlson's creative interpretation of a letter to the editor of a local newspaper in Boulder, Colorado. On that single thread hangs this attempt to defame a mass movement in order to repress dissent and free speech.
         Unlike every right wing movement, the climate movement has never engaged in violence against human beings in pursuit of political aims. From colorful marches with hundreds of thousands of people to actions disrupting fossil fuel infrastructure construction and blockades of coal trains and ships, the climate movement has been disciplined and intentional about protecting life. Citizens placing themselves in the path of destruction, placing themselves at risk in order to avert climate catastrophe, cannot be equated with violence.
         In order to make their case, these fossil fuel industry supported Representatives make blatantly false statements regarding anti-pipeline activists and their actions. No one has burned holes in active pipelines. Pipeline pump stations have never been tampered with.
         Instead of protecting the public from climate change, the largest threat to human well-being in the 21st century, these 84 members of Congress are doing the bidding of those perpetrating the unfolding disaster for short term profit. Representative Ken Buck (R-CO) initiated this letter. "Oil and gas" was the number one industry contributing to his 2016 re-election campaign to the tune of $62,950 (including $10,000 from Koch Industries).
         If this attempt to expand domestic terrorism laws is allowed to succeed, activists who resist fossil fuels would spend the rest of their lives in prison. Under "terrorist enhancement" labels, activists would be locked up in facilities that are more repressive than maximum security prisons, such as Communication Management Units. These conditions are torture. The essential message of this Congressional letter is that citizens who stand in the way of the profits of the fossil fuel industry should be tortured. This legislative agenda of increased persecution of activism should be resisted in the strongest possible manner not only by social movements, but also by any legislators who still value the basic freedom of dissent....
         That these Congressional Representatives believe it is more important to prosecute citizens attempting to raise the alarm of climate cataclysm among the American people than to prosecute fossil fuel corporations whose products are leading us toward disaster serves only to illustrate the subservience of our government to fossil fuel interests and the necessity of citizens taking action to stop the harm.
         Any realistic hope of averting climate cataclysm must take this corruption into consideration, and build a genuine power base outside of the normal legislative advocacy process in order to recapture government by and for the people. In the United States, nonviolent direct action has historically been the most effective force in building such movements and outside pressures. With reasonable access to the legislature and executive functions of government gone, many climate activists hope that the judiciary, with a mandate to operate by fact, may play an important role in bringing about the change needed for a just and livable future.


       •** "Iron Eyes to claim necessity defense in DAPL case", by Jack Dura, Bismarck Tribune, 24 October 2017.
    EXCERPTS: A prominent figure in months-long protests in southern Morton County claims the perceived threat of the Dakota Access Pipeline forced him to commit his alleged crimes. Attorney Chase Iron Eyes, also a Standing Rock Sioux tribal member and North Dakota's 2016 Democratic House candidate, is charged with felony inciting a riot and misdemeanor criminal trespass. He has pleaded innocent. His necessity defense is to be heard Nov. 3 when defense attorney Daniel Sheehan will make the case to Judge David Nelson that the pipeline's impact to Iron Eyes' community forced him to resist the project as he did.
         "Given the Dakota Access Pipeline's imminent threat to my tribe's and my family's only water supply, I ultimately had no choice but to resist on the front lines," Iron Eyes said...
         Necessity defenses have recently been invoked in other pipeline cases, including Michael Foster, who was convicted this month of crimes related to his shutdown of the Keystone pipeline near Walhalla last year. A judge denied his necessity defense, which claimed the threat of climate change forced him to shut off the tar sands oil pipeline. Meanwhile, a Minnesota judge allowed the same defense for two other "valve turners," who also targeted pipelines last year.

    •** Activist on trial wants more time for 'necessity' defense, by Blake Nicoholson, Associated Press, 3 November 2017.

    EXCERPTS: ... Iron Eye's one-day trial scheduled for Feb. 8 is likely to be delayed until next summer and likely lengthened to several days. Nelson called Iron Eyes "one of the premier cases" of the 761 arrests made during six months of protests last year and earlier this year. "I'm not going to try to rush this through," the judge said. "We want to make sure this gets done right."
         Nelson eventually will decide whether Iron Eyes can use a necessity defense. In recent months, judges in Washington state and Minnesota have allowed climate change protesters to use a necessity defense at trial. But judges in recent pipeline protest trials in North Dakota, Montana and Washington have rejected the defense.
    • February UPDATE: Iron Eyes felony trial rescheduled for August 13-24.

    •** Second pipeline opponent will argue for necessity defense, Bismarck Tribune, 16 November 2017. EXCERPT: "HolyElk Lafferty, 38, a Cheyenne River Sioux and Lakota activist, is charged with misdemeanor counts of criminal trespass and engaging in a riot from activities on Feb. 1, the same day as attorney and Standing Rock Sioux tribal member Chase Iron Eyes' arrest...."

    •** AUGUST 2019 UPDATE (re Chase Iron Eyes): "Dakota Access protester reaches plea deal in riot case", by Blake Nicholson (AP), 21 August 2018, Aberdeen News.

    Iron Eyes' plea agreement came two days before he and his attorneys were scheduled to appear in court and make a case for presenting a so-called "necessity defense" — that his actions were justified because they prevented a greater harm. Pipeline protesters who have recently tried the necessity defense in other cases in North Dakota and other states have argued that the greater harm they're trying to prevent is climate change due to fossil fuels. Iron Eyes, a Standing Rock member, also had planned to argue that civil disobedience was his only option to resist a pipeline's incursion on his ancestral lands and prevent a threat to his tribe's water supply.
         "Now I can be with my family and continue defending the sovereignty of my people," said Iron Eyes, an attorney with the Lakota People's Law Project. "This will allow me to keep working nonstop to protect First Amendment, human and Native rights."


    •** "Oil pipeline opponent uses 'necessity defense' — What is it?, Associated Press story by Blake Nicholson and Steve Karnowski, in Washington Post, 24 October 2017. Also published in Chicago Tribune, L.A. Times, New York Times, ABC News, and more.

    EXCERPTS: IS IT RECOGNIZED BY THE COURTS? The U.S. Supreme Court has said it's an "open question" whether federal courts have authority to recognize a necessity defense not provided by law, according to North Dakota District Court Judge Laurie Fontaine. Whether the defense is permitted by law in state courts varies, according to University of Mississippi law professor Michael Hoffheimer. The main argument against the defense is that it gives people who don't like a particular law the chance to break it and then argue it was excusable. The main argument for it is that there might be special circumstances in which there is a justifiable reason for breaking a law....
         Defense attorneys also have tried the necessity defense when people Illegally use marijuana because they argued that it was needed to treat a health problem. A 1976 District of Columbia court decision in favor of a person suffering from glaucoma was the first in the country to recognize the defense in a marijuana case, according to the National Organization for the Reform of Marijuana Laws.
         The defense also has been used through the years by abortion clinic protesters. In a high-profile case in 2009, a judge ruled against its use in the trial of Scott Roeder, who confessed to killing an abortion-providing doctor in Kansas because he said it was necessary to save unborn children.
         It was first used in a U.S. environmental case in 2009 when a climate change activist cited necessity in Utah. Alice Cherry, co-founder of the Climate Defense Project, said it has been used in similar cases in Washington state, New York, Montana, North Dakota and Minnesota. The Climate Defense Project even offers an educational guide on using the defense and says this area of the law is "developing rapidly."...
         WHAT MUST BE PROVEN? Legal experts agree the necessity defense is a long shot. To succeed, people generally have to persuade the judge or jury they had no legal alternative to breaking the law. They also must prove they were trying to prevent some imminent harm, and there must be a direct connection between their breaking the law and preventing the harm. Finally, they must prove that breaking the law is less harmful than what would have happened.
         HAS IT SUCCEEDED IN ENVIRONMENTAL CASES? Not often. In a Minnesota case, Judge Robert Tiffany is allowing four pipeline protesters to use the defense, but he also said they must clear a high legal bar. Tiffany said the defense applies "only in emergency situations where the peril is instant, overwhelming, and leaves no alternative but the conduct in question." That case is still pending.
         A judge in Spokane, Washington, is allowing a 77-year-old Lutheran pastor to use a necessity defense in his upcoming trial stemming from a climate change protest last year. The Rev. George Taylor stood on railroad tracks to protest coal and oil trains that pass through Spokane and their contribution to climate change.
         Judges in recent pipeline protest trials in North Dakota, Montana and Washington state have rejected the defense. The Montana judge said he didn't want to put U.S. energy policy on trial, and the North Dakota judge said a reasonable person couldn't conclude a direct cause and effect between the defendant's pipeline protest and climate change.
         The Montana case is pending. In both the Washington and North Dakota cases, the protester on trial was allowed to tell jurors of his "state of mind" during the offense, but protesters in both cases were still convicted. In the Washington case, the protester received probation and said he was "heartened, knowing that we are bringing these arguments into the jury system."


    "PUC says Enbridge must disclose Line 3 oil spill projections", Post Bulletin (daily newspaper Rochester, MN), 26 October 2017.

    EXCERPTS: ST. PAUL, Minn. (AP) - Enbridge Energy must publicly disclose its projections for potential oil spills from its proposed Line 3 replacement pipeline across northern Minnesota, regulators decided Thursday. The modeling data set includes the probability of large spills at seven water crossings. Enbridge submitted it to the Minnesota Department of Commerce for the project's environmental impact statement but had the agency redact the data from the public version of the document, citing trade secrets and security reasons. Enbridge said the data could be used by "bad actors" intent on damaging the pipeline, thus threatening the nearby environment.
         But the Public Utilities Commission voted 3 to 0, with two commissioners absent, to release the spill information. The commissioners agreed with an administrative law judge who determined that the data should be public and that the information is not likely to cause a security threat...
         The PUC canceled two public hearings that had been scheduled for Thursday in St. Cloud, citing "logistical and safety issues" after protesters cut short a hearing on the project in Duluth last week. And a judge in Clearwater County this month took the unusual step of allowing four climate change protesters involved in closing valves on two Enbridge pipelines near Clearbrook last year to use a "necessity defense" in their upcoming trials.


    •** "Activist on trial wants more time for 'necessity' defense", by Blake Nicholson, Associated Press, in ABC News, 3 November 2017

    EXCERPTS: Trial likely will be delayed for an American Indian activist accused of inciting a riot during protests in North Dakota against the Dakota Access oil pipeline, as his attorneys gather more evidence to present a "necessity" defense. Chase Iron Eyes is seeking a judge's permission to use the defense in which a suspect argues a crime was justified because it prevented a greater harm.
         Pipeline protesters who have recently tried the necessity defense in other cases in North Dakota and other states have argued that the greater harm they're trying to prevent is climate change due to fossil fuels. Iron Eyes also has said he wants to "stop global climate chaos," but his necessity argument goes further.
         Iron Eyes hopes to show that civil disobedience was his only option to resist a pipeline's incursion on his ancestral lands and prevent a threat to the tribe's water supply. He also wants to argue that he was trying to prevent a "civil rights conspiracy" to portray pipeline opponents as terrorists and result in them being treated as such.
         Iron Eyes and 73 others were arrested on Feb. 1 after erecting teepees on land that authorities said is owned by pipeline developer Energy Transfer Partners. Protesters maintained they were peacefully assembling on land they believe rightfully belongs to American Indians under old treaties.
         Iron Eyes hasn't disputed his involvement, but the Standing Rock Sioux tribal member has pleaded not guilty to felony inciting a riot and misdemeanor criminal trespassing. He could face up to five years in prison if convicted of the more serious charge.
         Defense attorney Alexander Reichert during a Friday hearing received permission from Judge David Nelson to request more material from the prosecution, including video taken the day of Iron Eyes' arrest and documents that might give more insight into the efforts of law enforcement and pipeline private security. "They labeled Chase as a terrorist and a jihadist," Reichert said. "Obviously, that came from somewhere."...
         Iron Eye's one-day trial scheduled for Feb. 8 is likely to be delayed until next summer and likely lengthened to several days. Nelson called Iron Eyes "one of the premier cases" of the 761 arrests made during six months of protests last year and earlier this year. "I'm not going to try to rush this through," the judge said. "We want to make sure this gets done right."
         Nelson eventually will decide whether Iron Eyes can use a necessity defense. In recent months, judges in Washington state and Minnesota have allowed climate change protesters to use a necessity defense at trial. But judges in recent pipeline protest trials in North Dakota, Montana and Washington have rejected the defense.


    •** "Congress Works with Big Oil on Letter Suggesting Anti-Pipeline Activists Face Terrorism Charges", by Steve Horn, DeSmog, 3 November 2017, 1350 WORDS.

    EXCERPTS: On October 23, 84 Congressional representatives made a splash when they published a letter to U.S. Attorney General Jeff Sessions asking if those engaged in activism disrupting or damaging pipeline operations should face criminal prosecution as an act of terrorism under the USA PATRIOT ACT.
          Spearheaded by U.S. Rep. Ken Buck (R-CO) and co-signed by dozens of other, primarily Republican, representatives, the letter pays homage to the First Amendment, while also noting that "violence toward individuals and destruction of property are both illegal and potentially fatal." The letter, covered by severalmedia outlets, was championed by the industry lobbying and trade association, the American Petroleum Institute (API), which said it "welcomed" the letter.
         But according to a DeSmog review, API and other industry groups were a key part of bolstering the letter itself. API, along with the Association of Oil Pipe Lines (AOPL) and the Interstate Natural Gas Association of America (INGAA), is listed as among the "supporting groups" on the website DearColleague.us, which tracks congressional letters and their backers....
         This letter's publishing comes in the aftermath of last year's major uprising against the Dakota Access pipeline at the Standing Rock Indian Reservation in North Dakota.
         Emails and memoranda previously obtained and reported on by DeSmog show that law enforcement and contract public relations professionals described those who participated in the Standing Rock protests as potential "terrorists." Greenpeace USA and activists the organization collaborated with at Standing Rock are likewise being described as partaking in "eco-terrorist" activities in a recent lawsuit filed against the organization for alleged "racketeering" as defined by the Racketeering Influenced Corrupt Organizations Act (RICO).
          Importantly, it also follows other anti-pipeline actions by the "valve turners", or those who participated in acts of non-violent civil disobedience to shut down the flow of Canadian tar sands into the U.S. at several pipeline pump stations. The activists affiliated with the Climate Disobedience Center, in those cases, have used the "necessity defense" to say that their activism was the last line of defense they had to halt runaway climate change which could ensue from the combustion of oil and gas flowing through pipelines.
         In May, API published its own letter on the issue to the Department of Justice, which addresses the "valve turners" head-on and has a footnote on their activism.
            "Investigations and law enforcement actions are a critical element to preventing criminality as well as potential environmental damage," reads the letter, which like the recent congressional letter, pays homage to First Amendment rights. "While we respect individuals' rights to free speech and peaceful protest, robust investigations into whether laws protecting critical energy infrastructure and the environment were broken is a responsible next step in certain situations."...
         Gosztola also noticed that the letter in many ways mirrors an article written by the law firm Hunton & Williams in 2016 for its clients, a post which came after the "valve turner" incidents.
          "In addition to being subject to common law claims — such as trespass, nuisance, burglary, and criminal mischief/sabotage — any person who knowingly and willfully damages or even attempts or conspires to damage or destroy an oil or gas pipeline or component may be subject to criminal prosecution under the federal Pipeline Safety Act," reads the law firm's brief. "Beyond civil and criminal liability, individuals damaging pipeline facilities could be investigated and/or prosecuted under other statutes depending on the circumstances, such as the Patriot Act or the Homeland Security Act for domestic acts of terrorism."
         Both API and INGAA have, in the past, been clients of Hunton & Williams. The firm also represented many of the country's largest coal companies in their lawsuits against the Obama administration's implementation of the Clean Power Plan, which would have regulated greenhouse gas emissions from coal-fired power plants.
          Just two days after the congressional letter was published, the Energy Equipment and Infrastructure Alliance's (EEIA) new "Energy Builders" initiative announced the creation of an "Energy Infrastructure Incident Reporting Center." EEIA is a "community of thousands of locally-based contractor, equipment, materials, and service businesses that support shale gas and oil operations," according to its website. The initiative was also launched as a reaction to pipeline protests which have popped up nationwide. The new database describes its purpose as "tracking and exposing attacks on critical energy infrastructure."
         "Incidents of eco-terrorism, sabotage, arson, vandalism, and violence are on the rise as severe actions have become a regular feature of pipeline protests, endangering public safety, the environment, jobs, and leaving taxpayers on the hook for millions of dollars," the database's website explains. "If you observe or hear about an incident of violence, sabotage, illegal trespass, or other opposition misconduct, please describe it briefly here and we'll consider it for inclusion in the database."
         Annie Leonard, executive director for Greenpeace USA, decried the creation of the database in comments conveyed to the Associated Press.  "Corporations and their governmental enablers are desperate to silence dissent every way they can," Leonard told AP. Leonard also called the new database "more fear-mongering by corporate bullies hoping to see what they can get away with in Trump's America."


       'We should be on the offensive' — James Hansen calls for a wave of climate lawsuits, by Jonathan Watts, The Guardian, 17 November 2017. Lengthy article describes Hansen's advocacy for a second wave of lawsuits, beyond the 'intergenerational injustice' suits against federal and state governments, and now aiming to "litigate to mitigate" by suing the fossil fuel companies, "the carbon majors."
    EXCERPT pertaining to the Valve Turners: Hansen is a believer in direct action. "I've been arrested five times. The idea was to draw attention to injustice," he says. He has also testified on behalf of others who have lost their liberty during climate campaigns. In January, he will speak in defence of an activist who turned off the tar sands pipeline in North Dakota.


    •** PRESS RELEASE: Ken Ward Appeal Is Filed, by Climate Defense Project, 9 November 2017.

    EXCERPTS: An appeal was filed today in the Washington Court of Appeals challenging a Superior Court ruling that denied climate activists the ability to present a necessity defense to a jury. Ken Ward, a climate activist from Corbett, Oregon, was charged with sabotage and burglary after an October 2016 protest in which he and four other activists temporarily blocked the flow of tar sands oil from Canada into the United States. Mr. Ward, a veteran environmentalist who for years pursued legal avenues to address climate change before turning to civil disobedience, testified during the two-day trial that his actions were intended to block the passage of harmful fuels into the United States and to inspire individuals and political leaders to act to avert catastrophic global warming. ...
         Today Mr. Ward, through his attorney Lauren Regan of the Civil Liberties Defense Center, filed an appellate challenge to that decision. "If this appeal is successful, it will help establish a defense that will recognize the severity of the climate crisis we face, the zealous greed of big corporations profiting off of the destruction of the planet and the suffering of its inhabitants, and the unwillingness of governmental leaders to protect the people from this egregious profiteering. In light of Washington State's own Department of Ecology testimony that given existing political realities, it would be 'futile' to ask the Legislature to abide by a statutory mandate to strengthen existing greenhouse gas emission limits, our clients felt they had no reasonable alternative to protect people and the planet." Lauren Regan, attorney for Mr. Ward. (Mr. Ward's appellate brief is attached, supplemental materials available upon request.)


    •** "My freedom is on the line to fight climate change, more will follow, by Ken Ward, opinion contributor, The Hill, 17 November 2017.
       EXCERPTS: It's fashionable to cast the civic conversation around climate change, such as it is, as a polarized debate between "climate deniers" and "climate believers." That tidy distinction is on display at the Bonn climate talks, where the Trump administration will promote coal, natural gas and nuclear energy as an answer to climate change from the official U.S. office, while a "shadow delegation" of U.S. municipal and state leaders, housed in tents, declare their continuing commitment to the Paris climate agreement. It's a neat, black-and-white story, peopled with stock characters, useful to both sides, and fundamentally untrue.... Even at this late date, there is no credible leadership proposing any plan of climate action appropriate to the scale and speed of the problem. Instead of stark contrast between climate denial and action, what's really on display in Bonn is 50 shades of climate denial....
         The crackdown on citizens who stand up to something about climate change continues apace: Earlier this month, U.S. Justice Department responded to a letter spearheaded by Rep. Ken Buck (R-Colo.) and signed by 83 other members of Congress, asking DoJ pointedly why it hasn't prosecuted climate activists, like me, as domestic terrorists. In reply, DoJ pledged to vigorously prosecute those who damage "critical energy infrastructure in violation of federal law."

    That could have potential personal ramifications for me. I was one of the five "valve-turners" who, in a coordinated Oct. 11, 2016, action singled out in the Buck letter, closed the emergency valves on all five pipelines carrying Canadian tar sands oil into the U.S. Though Buck and his colleagues would like to brand us as domestic terrorists, we acted responsibly, with great care and concern for safety, to combat the climate change emergency by stopping the flow of the dirtiest, most carbon-intensive form of oil. We have sought to make this case at our trials, via the "climate necessity defense," which argues that our actions were justified by the greater climate harms we're seeking to avoid. In a precedent-setting decision, a judge in Clearwater County, Minn., granted my fellow valve-turners Emily Johnston and Annette Klapstein the right to mount a necessity defense in their upcoming trial for shutting off two Enbridge tar sands pipelines. The decision means they will be able to bring in expert witnesses and testimony about climate change and the climate damage tar sands do, and that the jury will be allowed to hear and consider them.
         Leonard Higgins, who goes to trial on Nov. 21 for closing the Spectra Energy Express pipeline in Coal Banks, MT, was denied the right to a necessity defense, so his jury will not be allowed to hear or consider expert witnesses or testimony on climate change. Instead, those witnesses will speak publicly at a mock trial on Nov. 18.
         Since all five "valve-turners" have already been charged under state laws, further federal action against us is unlikely. But Buck's letter did prompt the DoJ to threaten federal action against citizen climate action — the only kind we're likely to get these days. So I and my fellow "valve-turners" sent a response to the Buck letter. It points out that, "At present, thanks to fossil fuel industry funded efforts, we the people cannot turn to our federal government for relief in addressing this single greatest threat to our health, wellbeing and security. Our own government has become an occupying force for interests inimical to our welfare."
         The consequence is that people like us, who are driven by conscience and conviction to take responsible climate action, get prosecuted on felony charges, while those profiting from climaticide are backed by the government. That leaves us with one option: to put our own bodies and freedom on the line. But we're far from alone. As climate change advances and the circumstances grow more dire with policy solutions nowhere in sight, more people will feel compelled to act.


    MONTANA TRIAL OF LEONARD HIGGINS
    reports begin 16 November 2017

    'Valve Turner' Trial Starts Tuesday, by Bennett Hall, Corvallis Gazette-Times (Oregon), 16 November 2017. Lengthy article with background details and new quotations by Leonard Higgins, who shut down the tar sands pipeline in Montana.

    EXCERPTS: ...Higgins faces a misdemeanor charge of criminal trespass and a felony charge of criminal mischief for closing an emergency shutoff valve on the Spectra Energy (now Enbridge Corp.) Express Pipeline in a remote part of Chouteau County, Montana. A conviction on the more serious offense could bring a penalty of up to 10 years in the state prison at Deer Lodge. None of the valve turners attempted to leave the scene or avoid prosecution for their actions. Instead, each waited patiently to be arrested and then requested a jury trial as a platform to air their views on climate change.
         "The whole action was focused on communicating the emergency that we're in and the failure of government and business to respond," Higgins said, "and the fact that even though we're beginning to turn the tide, it's woefully inadequate to protect ourselves, and certainly our children, from climate change...."
         Higgins had hoped to be able to use the necessity defense in his Montana trial, which would have allowed him to argue that his illegal acts were necessary to prevent greater harm from climate change, but the judge in his case refused to allow it. On Saturday, however, he'll get the chance to present that argument in a mock trial on the University of Montana campus in Missoula. Expert witnesses he had hoped to call in his defense, including Tom Hastings from Portland State University and the University of Montana's Steve Running, will speak at the event, where the audience will be asked to act as the jury.
         Higgins was recently convicted of trespassing in another case stemming from a climate change protest last year in Anacortes, Washington, where he was fined $250 and ordered to perform eight hours of community service. Despite the outcome, he considers that case a victory for his activism. "What was remarkable was that the judge complimented and praised our efforts in regard to climate change," Higgins said. "I think we changed some people's minds."
    Protecting us all from climate change is not a crime, Letter to the Editor, by Eileen Beddall, Bozeman Daily Chronicle, 18 November 2017. (Short statement in support of Leonard Higgins' climate action and mention of his Nov 21 trial.)


    •** "Climate Mock Trial: Valve Turner Leonard Higgins Argues the Climate Necessity Defense", announcement of Nov 18 "mock trial", by ClimateDirectAction, to be held at University of Montana, Missoula.

       EVENT DESCRIPTION: Three days before he is tried by the State of Montana, Leonard Higgins will stand for a Mock Trial at the University of Montana, Missoula. Denied by the state the opportunity to present the necessity defense, Leonard Higgins will present his climate change case to the Court of Public Opinion....
         The defense is prepared to call, for the defense of the planet, the following expert witnesses: University of Montana climate scientist Professor Steve Running, civil disobedience expert Tom Hastings, and climate change and US security expert Andrew Holland. With presiding judge Bob Gentry, defense attorney Arnold Schroder, prosecutor Summer Nelson, and additional support roles by Jeff Smith (350 Montana) and valve turners Michael Foster and Ken Ward.

      

    VIDEO of Higgins mock trial testimony
    PDF of partial transcript

    "... After retirement, as I looked at climate change, I, frankly, was shocked and scared. As I looked at what the scientists were saying, and I looked at how we were responding — how the federal government was responding, how state governments were responding, and the political and public discourse about climate change — I realized that I couldn't just mind my own business and expect other people to mind theirs. I had to do something myself, if I expected my kids and grandkids to have a future. So, out of that came a move toward activism."

    ABOVE: Leonard Higgins during his 6.5 minute testimony at his Climate Necessity Defense Mock Trial at the University of Montana.

       VIDEO: 10-minute excerpts of Mock Trial - produced by 350 Montana

    00:23 - Necessity Defense definition
    00:34 - Prosecutor (Summer Nelson) poses Q to prosecution witness
    00:42 - Response by pipeline executive (Michael Foster)
    01:25 - Defense attorney (Arnold Schroder) poses Q to defense witness
    01:37 - Response by climate scientist Steve Running (himself)
    02:42 - Defense witness, U.S. security expert Andrew Holland
    04:05 - Defense attorney poses Q to defense witness
    04:14 - Response by civil disobedience expert Tom Hastings (himself)
    05:04 - Defense witness professional environmentalist Ken Ward (himself)
    05:54 - Statement by defendant, Leonard Higgins
    07:25 - Defense closing statement - 4 criteria for necessity defense

    350 Montana: "Leonard Higgins Mock Trial Held" at University Theater in Missoula

    A mock trial of Leonard Higgins, Valve Turner, was held at the University Theater in Missoula last Saturday. The cast included Leonard and two of the other Valve Turners, three expert witnesses of different professions, and professional lawyers. (See list below.)

    • Leonard Higgins appeared as himself
    • Michael Foster, a Valve Turner, played a pipeline executive
    • Ken Ward, a Valve Turner and 40 year activist, appeared as himself
    • Steve Running, U Montana ecology professor, was an expert witness
    • Andrew Holland, climate and US security expert, was an expert witness
    • Tom Hastings, civil disobedience expert, was an expert witness
    • Bob Gentry, environmental lawyer, was the judge
    • Summer Nelson, Missoula attorney, was the prosecutor
    • Arnold Schroder, Rising Tide activist, was the defense attorney
    • Jeff Smith, 350Montana co-chair, was the clerk
    Photos left: Schroder, Foster, and Gentry. Ken Ward.

      

    VIDEO of Prof. Tom Hastings mock trial testimony

    On the strategic utility of civil disobedience and role of the judiciary

    2.5 minute excerpt

      

    VIDEO of Ken Ward mock trial testimony

    Speaking as himself (his decades of service as a professional environmentalist), Ken Ward (Washington state valve turner) speaks about the futility of expecting environmental activism to achieve climate results, absent more direct action climate disobedience.

    Note: Ward's testimony begins 3 minutes into this video and continues for a total of 12 minutes.


    •** Climate activist goes on trial for Montana pipeline shutdown, by Matthew Brown, Associated Press, in Chicago Tribune, 20 November 2017. Also published in U.S. News & World Report, Seattle Times, Billings Gazette, Bozeman Daily Chronicle, Miami Herald, Houston Chronicle, San Francisco Chronicle

    EXCERPTS: An Oregon man goes on trial in Montana on Tuesday in the latest criminal prosecution against activists who sought to call attention to climate change by shutting down pipelines carrying crude from Canada's oil sands region to the United States.
         Leonard Higgins, 65, of Portland is charged with trespassing and felony criminal mischief for breaking into a fenced site near Big Sandy, Montana, to turn off a valve on a Spectra Energy pipeline in October 2016. Activists simultaneously targeted other lines in Washington state, North Dakota and Minnesota. Higgins, a retired technology worker for the state of Oregon, wants to tell jurors that his act of civil disobedience was necessary because climate change is an emergency that can't be ignored, he told The Associated Press.
         But District Judge Daniel Boucher (boo-SHAY) has indicated that he won't allow the trial to be used as a vehicle for political protest. Boucher said in an April order that testimony on climate change would be irrelevant to the charges faced by Higgins. "The energy policy of the United States is not on trial, nor will this court allow Higgins to attempt to put it on trial," Boucher wrote in the order. "Mr. Higgins is on trial for his voluntary acts."
         In a parallel case in Minnesota, two activists last month convinced a state judge to let them present evidence in their upcoming trial that the imminence of climate change justifies extreme action. That's a legal tactic known as a "necessity defense."
         "The important thing about a jury trial is a chance to argue about the climate emergency," said Higgins, a former information technology worker for the Oregon state government. "We chose tar sands oil and consider it along with coal to be the dirtiest carbon emitters. They're the ones we should reduce." ...
         The protesters called pipeline company officials ahead of time to warn them about their actions, and workers shut down four of the targeted sites before protesters reached the valves. The pipeline targeted in Washington state wasn't operating at the time of the attempted shutdown...


      

    VIDEO: Report of Trial Day 1 morning: Jury Selection

    Reported by Minnesota Valve Turner Emily Johnston with 350Seattle operations coordinator Valerie Costa

    21 November 2017   •   8 minutes

    (livestreamed to Shut It Down Today, Facebook)

      

    VIDEO: Report of Trial Day 1 afternoon: Prosecution ends, Defense begins

    Reported by Portland Rising Tide organizer Arnold Schroder with short statement by Leonard Higgins:

    "... I need fellow parents and grandparents, fellow community members, to take action. I need them to care that their kids' lives are threatened."

    21 November 2017   •   4 minutes

    (livestreamed to Shut It Down Today, Facebook)

    Montana Day 1 Narrative, by Nicky Bradford (valve turner support), post on Shut-It-Down-Today blog, 22 November, 2017.

    EXCERPTS: ... The prosecution is solely focused on proving that Leonard personally caused Spectra (now Enbridge) over $1,500 in damages, which would satisfy the threshold for the felony charge of criminal mischief. While they don't deny Leonard's trespass, the defense argues that without any avenue to argue the necessity of his actions, or to defend them in the context of climate catastrophe, there isn't much left to say. Arguments against Leonard are presented with the cadence of someone reading an itemized receipt: Employee X drove 75 miles. Employee Y drove 75 more. Their numbers are plugged into unambitious equations and presented to the court as self-evident.
         Despite the clear intent of the prosecution to keep the notion of ethical protest far from the proceedings, the prosecution's own witnesses tell the tender story of Leonard's action, admitting to his clearly stated intent of nonviolent protest. They even describe the autumn leaves he'd woven into the chain. And the prosecution rests.
         Herman Watson had reserved his opening remarks at the beginning of the trial so he could deliver them at the start of Leonard's defense case. And his remarks are profoundly felt in the courtroom. The opening witness is Anthony Ingraffia from Cornell, an expert in fracture mechanics applied to energy resource and transport. "Halting the flow of a pipeline, in the manner it occurred during Leonard's actions, happens during standard procedure and is not an unusual operational event." He also says, that "If a person was diligent and rigorous in reading readily available technical journals on pipeline maintenance, it would be relatively straight forward for someone to learn to safely shut down a pipeline."


    'Valve turner' trial begins: Case hinges on amount of damage caused by Corvallis activist, by Bennett Hall, Corvallis Gazette-Times (Oregon), 21 November 2017.

       EXCERPTS: FORT BENTON, Montana - Leonard Higgins admits he broke into a remote Montana control facility in October 2016 and turned an emergency shutoff valve on the Spectra Express pipeline. But exactly how much harm did he do? That was the central question during the opening day of his trial on trespassing and criminal mischief charges, which began Tuesday in Chouteau County District Court in Fort Benton, Montana.
         The 65-year-old former Corvallis resident was one of five "valve turners" who took part in a coordinated action last year to close down oil pipelines in four states to dramatize what they call a climate change emergency.
         If Higgins is convicted of trespassing — which he admits to doing — he could face up to a year in jail. The criminal mischief charge, however, is a felony count that could earn him a much longer sentence — up to a decade in the Montana State Prison. But under Montana law, the state must prove Higgins caused more than $1,500 in damage to get a felony conviction...

    Defense attorney Herman Watson IV, who reserved his opening statement until after Graham's testimony, assailed the state's evidence in his initial remarks to the jury.... Watson added that Higgins was trying to make a point, not wreck the pipeline, and that he took precautions to ensure no oil was spilled and no one was endangered by his actions. "It was Mr. Higgins' intention to symbolically turn that valve to raise attention for climate change, and that is why we're here today," he told the jury. "I just want you to hear what he has to say."
         More than 40 of Higgins' friends, family members, and fellow activists from Oregon, Washington, Montana and elsewhere were in the courtroom on Tuesday to show their support. Also on hand were three of his fellow valve turners — Ken Ward, Michael Foster and Emily Johnston — and Steven Liptay, a codefendant in Johnston's case...

    PHOTO ABOVE: Defense attorney Herman Watson IV (left) with Leonard Higgins. (photo by Bennett Hall, Corvallis Gazette-Times)


    How much oil pipeline damage did Montana protester cause? Attorneys disagree, by Karl Puckett, Great Falls Tribune (Montana), 21 November 2017 (1,000 words)

    EXCERPTS: FORT BENTON - A Corvallis, Ore. climate activist who turned off an oil pipeline valve near Coal Banks Landing and Virgelle last year as part of a four-state effort to raise awareness about climate change went on trial here Tuesday. Leonard Higgins, 65, is charged with trespassing and criminal mischief. He's pleaded not guilty. To him, the case is about climate change, too.
         "I just ask you to listen to him and I hope I ask the right questions," Herman Watson IV, one of Higgins' three attorneys, told jurors.
         In turning off the valve, Higgins did not intend to cause an explosion or major damage to the Express Pipeline, Watson said in his opening statement. The company was notified about 15 minutes in advance that individuals with Climate Direct Action planned to enter the valve area inside a locked fenced area.
         Higgins knew the company would shut down the pipeline, said Watson, adding Higgins researched pipeline protocol extensively. It was a symbolic gesture to raise awareness about climate change, Watson said....
         District Judge Daniel Boucher ruled that there was sufficient evidence for criminal mischief for the charge to be considered by the jury.
         The defense called Anthony Ingraffea, a professor of civil and environmental engineering at Cornell University in New York, to talk about pipeline safety protocol. If someone turned a valve on a modern pipeline, what would be the result? he was asked. "In today's day and age, inconsequential," Ingraffea said. Pipelines are automated and equipped with sensors that immediately recognize if there is a change in pressure, he said.
         What about the pipeline company having to shut down the section of pipeline after being notified activists planned to turn off the valve? "Turning off and turning on pipeline flow is not an unusual event," Ingraffea said....
         During a break in the trial Tuesday, Higgins, who is retired from working for the state of Oregon, said the objective of turning the valves on the pipelines was not shutting them down but rather calling attention to climate change during the subsequent trials because "rank and file folks don't really know the threat we face. It's my obligation to my kids," he said.
          Higgins said his attorneys filed a motion asking the judge to allow a "lesser harm defense" in which he would admit the trespassing, a lesser harm, to address the greater harm of climate change. That motion was denied, Higgins said.
         Prospective jurors were quizzed about their thoughts on trespassing, the environment, whether they know parties involved in the case and other topics. One juror said she supported Higgins. "Well ma'am, do you think you've made a decision about this case already?" Boucher asked. Yes, she said. "My feelings are very deep in how I feel in my support."...


      

    VIDEO: Report of Trial Day 2 dawn: After morning prayer

    Reported by North Dakota valve turner Michael Foster:

    "... I wish you could have been at the church with us, singing and sharing time and readings. Leonard is just beaming!"

    22 November 2017   •   1.5 minutes

    (livestreamed to Shut It Down Today, Facebook)

      

    VIDEO: Report of Trial Day 2 morning: Leonard takes the stand

    Reported by North Dakota Valve Turner Michael Foster with 350Seattle operations coordinator Valerie Costa

    Michael Foster says: "My favorite answer of his was when the judge was trying to determine if Leonard believed that he was himself in immediate danger when he turned off that pipeline. And Leonard said, 'My wellbeing is intimately connected to the wellbeing of my least happy child.'"

    22 November 2017   •   7 minutes
    (livestreamed to Shut It Down Today, Facebook)

      

    VIDEO: Day 2 afternoon: Jury deliberation begins

    Defense attorney Lauren Regan (with Ken Ward) reflects on the judge and prosecution questioning of Leonard.

    Lauren Regan says: "Of all the valve turner trials so far, the state and court limited Leonard's testimony the most." (Discussion of judge's resistance to necessity defense.) "The other unusual thing was that the state began a colloquy of questioning Leonard for what seemed like a conspiracy case."

    22 November 2017   •   4 minutes
    (livestreamed to Shut It Down Today, Facebook)

      

    VIDEO: Day 2 afternoon: Juror interviewed post trial

    Kelsey Skaggs, an attorney for the defense (Climate Defense Project), conducts a friendly interview with a juror. Her aim: to learn which aspects of trial testimony were most important during jury deliberations.

    00:00 Juror speaks informally
    01:41 Interview begins
    04:03 Kelsey Skaggs reflects on jury verdict

    22 November 2017   •   5 minutes
    (livestreamed to Shut It Down Today, Facebook)

      

    VIDEO: Day 2 afternoon: Leonard Higgins reflects post trial

    "... I was surprised that I didn't get to talk about climate change at all, because it was important to show what my intent was in what I did and what my state of mind was.

    Any time I came even close to talking about the climate change science that scares me more than the verdict that was delivered today, I was stopped from speaking."

    22 November 2017   •   5 minutes
    (livestreamed to Shut It Down Today, Facebook)

    More excerpts of Leonard's reflections:

    Civil disobedience, I think, is just one of the tools that we have in the toolbox. But I think right now it's the most important one. It's really clear from the science that we need to start reducing carbon emissions now...
         "... We tend to not realize how dangerous and how immediate the threat of climate change is.... We're in the middle of an emergency, and there are two reasons that we have to act right away. One is that the carbon that's already in the atmosphere will take about forty years before we feel the full impact. We're already about 1 degree centigrade rise in average temperatures globally. The other is just the immensity of the problem. I managed very large IT projects — as many as a hundred employees and contractors, and I know even at that smaller scale — that very small scale by comparison — there's like a 75 percent failure rate on those projects. They're either not done on time or they cost more than was planned, or they don't deliver what was promised. And this is so much more complicated. We need to get started on it.
         Dr. James Hansen laid out a plan that if we only had started some time ago would have been such an easier transition for all of us: If we would have reduced emissions, I think at that time it was something around 6 percent per year. We can do that. We already have the science in terms of alternative energy, and sun and wind, And we know how to change things in terms of transportation and agriculture and forestry. We have the answers. We're just being blocked in implementing the solutions.

    Question: Would you do it again, know the outcome?

    My only regret is that I didn't start working on this problem sooner. As I spoke in my testimony, when I neared retirement I looked back at how I'd spent my time. I worked long hours and was interested in having a nice house, nice cars, and I wish I would have spent more time with family — and I wish that I would have known about this problem sooner and joined in with others in working for solutions.

    Question: What would you say to my children?

    To your children and my children, I'd say, I've done everything I can.

    Images above are drawn from
    video produced by Steve Liptay

    "Support Leonard Higgins"

    (1.5 minutes)

      

    Trial Day 2: Conviction, by Arnold Schroder (valve turner support), post on Shut-It-Down-Today blog, 25 November 2017.

    EXCERPTS: ...As in Washington, but unlike in North Dakota, the jurors seemed generally sympathetic, but fastidious in what they perceive as a duty to convict. A juror interviewed after the trial said these two things: that he "has a lot of respect" for people like Leonard, and that "the law is the law."...
         Time and again, as we struggle against this crisis which is undoing the world, we find that the one thing this struggle accomplishes with absolute certainty is bringing us together. People focus on personal contentment and find themselves miserable and alone — with considerable irony, we accept struggle and sacrifice and find ourselves happy and together. Many of us are staying in Ft. Benton for Thanksgiving, this most confusing of holidays when Americans actually stop and think about the tremendous abundance at their disposal while also lauding colonization. We are preparing food for tomorrow, editing each others' writing, going bowling, going running, having heartfelt talks, occasionally crying, laughing more often, marveling at the enormous cottonwoods on the Missouri, marveling at the magpies in the gray sky and making friends all over.
         Leonard has been convicted of a felony, we can't know the impact of his action, and there's nowhere in the world we'd rather be.


    Jury convicts 'valve turner' Leonard Higgins on both counts, by Bennett Hall, Corvallis Gazette-Times, 22 November 2017 (900 words)

    EXCERPTS: FORT BENTON, MONTANA - A Montana jury took just one hour to find climate activist Leonard Higgins guilty of misdemeanor trespassing and felony criminal mischief on Wednesday for his role in the "valve turner" protest that briefly shut down the flow of Canadian crude through pipelines in four U.S. states last year.
         The 65-year-old former Corvallis resident is scheduled to be sentenced Jan. 2 by Judge Daniel Boucher in Chouteau County District Court. He faces a potential maximum penalty of 10 years in prison on the criminal mischief count.
         The 12-person jury could have found Higgins guilty of a lesser charge but determined that his actions caused more than $1,500 in damage to the pipeline's owner, Spectra Energy (now Enbridge Corp.), making the criminal mischief a felony offense.
         Higgins' lead defense attorney, Herman Watson IV of Bozeman, said his client intends to appeal the verdict to the Montana Supreme Court. "That's always been the plan, and we already have the appeal written," Watson said.
         Like his four fellow valve turners, Higgins had hoped to employ a necessity defense, which would have allowed him to argue that his crimes were justified by the imminent danger to humanity of climate change caused by burning fossil fuels. Boucher denied that motion, saying that "the energy policy of the United States is not on trial."...
         Watson tried to portray his client as a principled man who felt compelled to take action against climate change, which he views as an emergency that threatens current and future generations. Taking the stand in his own defense Wednesday morning, Higgins responded to questions from Watson about his motivation by saying, "I felt responsible to stand up for what's right — and sometimes what's right isn't necessarily what's legal."
         But when the questions turned to Higgins' beliefs about the causes of climate change and the need to stop burning greenhouse gas-producing fossil fuels, his testimony was shut down by a flurry of objections from Chouteau County Attorney Steven Gannon. Boucher backed him up, ruling those issues were "beyond the scope of this case."
         Gannon made that point again during his closing arguments. "This is not about what (Higgins) believes," he told the jury. "It's about what he did about it." He hammered on the uproar caused by Higgins' act of protest, arguing it cost the pipeline company thousands of dollars' worth of lost productivity. "The bottom line is they are in the business of moving oil," Gannon said. "When the pipeline isn't working, they're not making money."
         In his own closing statement, Watson did his best to cast doubt on that claim. He argued that Higgins was an activist, not a vandal, and that the actual damage he caused was not enough to justify a felony charge. In the end, the jury sided with the prosecution, returning a unanimous verdict after an hour of deliberation.
         When court was adjourned, Higgins turned to embrace his eldest daughter, Sarah Robertson of Portland, and his partner, Angela van Patten of Portland, who watched the trial from the front row. He was also greeted by about 40 fellow climate activists, many of whom had traveled from Oregon, Washington and elsewhere to show their support.
       Also on hand were three of his fellow valve turners: Michael Foster, Emily Johnston and Ken Ward [photo left]. Despite the outcome of Higgins' trial, the group was upbeat afterwards, singing songs, exchanging hugs and making plans to share a Thanksgiving dinner in Montana before returning to their respective homes.
         Foster — who is awaiting sentencing on two felonies and a misdemeanor after his conviction last month in a North Dakota court — said there's no reason to feel down because each trial advances the cause of combating climate change. "We win even when we lose because we get stronger," Foster said. "What did Gandhi say? First they ignore you, then they laugh at you, then they fight you. And then you win."
    Higgins remains free on bail pending sentencing. His co-defendant Reed Ingalls, who videotaped and live-streamed Higgins' efforts to shut down the Spectra Express pipeline, also faces trial in Chouteau County on trespassing and criminal mischief charges.


    Portland man found guilty of damaging pipeline, by Karl Puckett, Great Falls Tribune, 22 November 2017 (1,400 words)

    EXCERPTS: FORT BENTON - Leonard Higgins, charged with tampering with an oil pipeline in Montana last year following a four-state climate change demonstration, was found guilty Wednesday by a Chouteau County jury of trespassing and criminal mischief. The jury, which got the case at 11:15 a.m., returned an hour later with the verdict, which also included the conclusion that Higgins caused more than $1,500 in damage. District Judge Daniel Boucher set sentencing for January 2.
         Following the verdict, Higgins, of Portland, said he was disappointed Boucher did not allow his defense team to present a so-called "necessity" defense in which he would have argued he committed a lesser harm because of an imminent greater harm, in this case climate change. Had that climate change defense been allowed, Higgins said, the outcome may have been different. "It was really frustrating not to be able to talk about climate in the courthouse," Higgins said....
         "This is not about climate change," Chouteau County Attorney Steven Gannon told jurors during closing arguments. During cross examination, Gannon also questioned the relevance of Higgins' testimony about his Oregon childhood, work life, family, church involvement and how he got involved in the issue of climate change to the charges of trespassing and criminal mischief case in Montana. His objections were sustained by Boucher. Herman Watson IV, Higgins' attorney, said the background was important to explain Higgins' intent.
         Higgins, 65, dressed in a sports coat and collared shirt, looked more like a college professor or grandpa than an "eco-terrorist," as one oil and gas group called him following the Oct. 11, 2016 incident. When he testified Wednesday morning, he still managed to discuss climate change in between objections. He described himself as a church-going family man whose roots are in agriculture and he recalled picking beans growing up in Oregon. Later in life, he got sucked into pursuing the American Dream, he said.
         Then, after soul-searching following his mother's death and retirement in 2010, he began to consider more serious issues, including climate change. It is his responsibility to stand up and do what is right, he said. "Sometimes what's right isn't necessarily what's legal," Higgins said. "It was a really hard conclusion to come to."
         He read a report by a climate scientist that spurred him to action. "In short it explains both why we have global warning, what the science is behind that and what will happen to not so much me but my kids and grandkids if we don't do something about it," Higgins said. He got involved with a group at his church that worked on climate change. Members of a church group decided to elevate their efforts after community outreach had  little influence on public policy. "In our country we have a tradition of civil disobedience," Higgins said. "Our founders left power in our hands as citizens."
         The group researched how they could conduct civil disobedience on large enough scale to make a difference. They turned their focus to oil pipelines transporting heavy crude from the oil sands in Canada, and decided to act during the presidential election by attempting to briefly stop all "tar sands oil" coming into the United States....
         Two calls were made to companies operating the pipelines before the activists turned up to turn the valves, he said. A person on each scene also live-streamed the activity so the companies could see they were on the locations, Higgins said. By the time Higgins arrived at the Montana site near Coal Banks Landing north of the Missouri River, the flow of oil had been shut off, Higgins said. He also put a chain on the main valve with leaves and flowers in it to represent the group's goal of transitioning to alternative energy.
         The entire act was symbolic to try to bring attention to climate change, Higgins said. He was prepared to get arrested, and wanted to use the attention to talk about climate change, he said. The five people involved in the four states were older professionals, he said. They thought their willingness to risk their freedom would more clearly demonstrate the severity of the problem climate change poses more than just presenting facts, Higgins said....
         The judge and Higgins' attorneys disagreed on the relevance of climate change and the use of the "lesser harm," or necessity defense, and whether climate change is an imminent threat to Higgins. Addressing Higgins, Boucher said, I think your testimony was you did this not for you but for your children and grandchildren Higgins said that was correct. So at what point did Higgins feel he himself was threatened by Enbridge, the pipeline owner? the judge asked. Higgins replied that his well-being depends on the well-being of his children.
         The judge said he denied the motion to allow the necessity defense because Higgins said he took the action at the pipeline for his kids and grandchildren. Case law is clear, he said, that there has to be a threat of injury or death to the defendant to use that defense. He found no imminent harm or threat of death to Higgins, he said.
         Lauren Regan, another attorney for Higgins, said the immediate harm is catastrophic climate change in the form of rising temperatures and sea levels, which are occurring now. "That's the imminent harm," Regan said.  During his closing argument, Gannon, the county attorney, said the case isn't about Higgins being a nice guy. "It's about what he did that day," he said.... Gannon, who got the last word, said the incident wasn't a voluntary shutdown by the company as described but rather a forced, emergency shutdown. "It was Mr. Higgins who did it," Gannon said.
         All of the cases in the four states have now been resolved except in Minnesota, Higgins said. As he spoke, a few dozen of his supporters from Oregon and Washington sang spiritual songs in the same courtroom where attorneys had been arguing moments before. "I love all of you," Higgins said, "and thank you for coming."


    Climate activist convicted after pipeline protest in Montana, by The Associated Press, in New York Times, 22 November 2017 (460 words). Also reported in Seattle Times, Chicago Tribune, Washington Post, Minneapolis Star-Tribune, San Francisco Chronicle, Idaho Statesman, Spokesman-Review (Spokane), Los Angeles Times, Houston Chronicle, US News & World Report, ABC News, Fox 23 News, NBC Montana, and others

       PHOTO LEFT: Leonard Higgins (center) with defense attorneys Lauren Regan, Kelsey Scaggs, and Herman Watson.

    FULL TEXT: FORT BENTON, Mont. - An activist who was trying to call attention to climate change was found guilty of criminal charges on Wednesday for closing a valve last year on a pipeline carrying crude oil from Canada to the United States. A Montana jury found Leonard Higgins of Portland, Oregon, guilty of criminal mischief and trespassing. Higgins could face up to 10 years in prison and a $50,000 fine on the felony criminal mischief charge. Trespassing is a misdemeanor with a penalty of up to six months in county jail and a $500 fine. A sentencing hearing is scheduled for Jan. 2. Court officials initially said Higgins would be sentenced Wednesday.
         In a written statement, Higgins said he planned to appeal.
         Higgins entered a fenced site near Big Sandy, Montana, in October 2016 and closed a valve on pipeline operated by Spectra Energy. The pipeline carries oil from Canada's tar sands region. Activists simultaneously targeted other pipelines in Washington state, North Dakota and Minnesota. The protesters called pipeline companies ahead of time to warn about their actions, and workers shut down four of the sites before protesters reached the valves. The pipeline targeted in Washington state was not operating at the time.
         "I was disappointed and surprised by the verdict, but even more disappointed that I was not allowed a 'necessity defense,' and that I wasn't allowed to talk about climate change as it related to my state of mind," Higgins said Wednesday.

    A Minnesota judge will allow two activists to use the necessity defense when they go on trial on Dec. 11 for a similar protest. Emily Johnston and Annette Klapstein are charged with felony counts of criminal damage to critical public service facilities and other counts after closing valves on two pipelines in northwestern Minnesota. Both are from the Seattle area.
         Michael Foster of Seattle was convicted of criminal mischief, conspiracy to commit criminal mischief and trespass on Oct. 6 after closing the valve on the Keystone pipeline in North Dakota. His judge barred him from using a necessity defense. Foster could face up to 21 years in prison at his Jan. 18 sentencing.



    Pipeline protester found guilty in Fort Benton, by Rachel Crowspreadingwings, ABC Fox Montana News, KFBB Missoula News, 22 November 2017.

    VIDEO and text. EXCERPTS: Fort Benton: Jurors have found Leonard Higgins guilty of criminal mischief and trespassing. When the verdict came down the air in this courtroom was vibrating with anticipation. Moments after the judgment was read ... the crowd showed their support of Higgins by forming an honor line....
         He said in the months leading up to the incident a huge amount of planning was done to make sure that when he did turn the valve off, no one would get hurt. That included informing Spectra Energy of the plan so they had time to turn off the flow of oil in that pipeline, which they did. "We worked really hard to have the action harm neither people nor property," said Higgins.


    Pipeline protester found guilty in Fort Benton, by Alex Sakariassen, Missoula Independent, 22 November 2017.

    EXCERPTS: "I was surprised I didn't get to talk about climate change at all, because it was important to show what my intent was in what I did, and what my state of mind was," Higgins said. "Any time I came even close to talking about the climate change science that scares me more than the verdict that was delivered today, I was stopped from speaking." ...
         Higgins appeared fairly collected while issuing his statements, despite the jail time and fines he could be facing. He spoke of civil disobedience as "the most important" tool in the contemporary activist toolbox, and of the need to reduce carbon emissions to combat the global effects of climate change. Asked if, in hindsight, he still would have turned the Enbridge valve, Higgins didn't hesitate, saying, "My only regret is I didn't start working on this problem sooner."
         Higgins' demeanor shifted as the questioner asked a follow-up: What would he tell her children? Higgins began to cry. "To your children, and my children, I'd say I'm doing everything I can."


    Oregon climate activist found guilty of turning off pipeline valve in Chouteau County, by David Sherman, MTN News, KTVQ Billings News, 22 November 2017.

    VIDEO Part 1 (00:57 minutes) - tv reporters

    VIDEO Part 2 (01:07 minutes) - quotations by Prosecutor Steven Gannon and Defendant Leonard Higgins

    EXCERPTS of accompanying news article: ... Higgins did not deny what he did, but argued that the "imperative to prevent climate harms justified his action," according to a press release.
         "I'm happy for the opportunity to share why I had to shut down this pipeline, and I really appreciate the time and dedication of the jury and the judge," Higgins said. "I was disappointed and surprised by the verdict, but even more disappointed that I was not allowed a 'necessity defense,' and that I wasn't allowed to talk about climate change as it related to my state of mind. When I tried to talk about why I did what I did I was silenced. I'm looking forward to an appeal."
         "We're disappointed that Mr Higgins was denied the opportunity to present a full defense and explain to the jury why he took his courageous action," said Kelsey Skaggs, executive director of the Climate Defense Project and member of Higgins' legal team. "Because of the fossil fuel industry's enormous influence, activists fighting for the future are being convicted while the real climate criminals walk free."
         The jury was barred from hearing evidence about what Higgins claimed were "the climate harms" that motivated him. Higgins was prevented from discussing climate change or explaining that he was motivated by the need to prevent climate harms. Whenever he used the word "climate" in his testimony, the prosecutor objected and the judge sustained the objection, according to a press release.
         After the verdict, Higgins said, "That scares me more than the verdict that was delivered today — that I was stopped from speaking."
         Stephen Gannon, the county attorney, said, "It's good that the jury sent the message that you need to take responsibility for your actions, and found him guilty. The representative from the company gave enough information for the jury to find the damages were in excess of $1,500, and the jury found that that was the case."...


    'Activist Who Shut Down Pipeline on Trial: "Act of Desperation" to Save Planet, by Eric Tegethoff, Public News Service - MT, 22 November 2017

    EXCERPTS: ... Higgins, who turned the valve in Coal Banks Landing, began his trial in Fort Benton this week. His calm demeanor betrays the fact that he faces up 10 years in prison on felony charges of criminal trespass and mischief.
         Above all else, what's clear is Higgins' dedication to stopping climate change. "For myself, this is an act of desperation," he states. "I'm not the kind of person that you would have ever thought would take civil disobedient, direct action. I'd never had any trouble with the law or courts. I worked for the state of Oregon for 31 years."...
         Higgins stresses the importance of reducing carbon dioxide emitted into the atmosphere. He wants people to be as active and passionate about this issue as they would be if their "child had cancer," because he wants his children and grandchildren to enjoy this planet. He hopes the valve turners' actions will drive change. "Like other civil disobedient acts in the past around abolition or around women's suffrage, civil rights, might have some chance to move this issue into the public discussion, change public opinion, and move public policy as quickly as it needs to happen," he states.
         Despite his feeling that the public is not directly engaged enough on this issue, Higgins is encouraged by efforts to modernize the power grid and agriculture and thinks the country is ready to move in a new and cleaner direction. "I'm inspired by all of the work that's being done to make the changes that we need to," he says. "Obviously, our technology in terms of wind energy and solar energy have moved at the same rate that the advancements in computers did."


    •** 'Valve-turners' putting lives on the line for our climate emergency, Guest opinion by Leonard Higgins, The Oregonian, 22 November 2017
       EXCERPTS: In October 2016, while President Barack Obama was still in office, five climate change activists, including me, cut chains and closed emergency shutoff valves on five tar sands oil pipelines in four states. In one morning, we briefly stopped the flow of all Canadian tar sands oil into the United States.
         We did it because continued failure to reduce carbon emissions threatens our children's lives. Federal and state government have known about the threat for decades. We must begin reductions immediately or miss our chance to prevent outright climate catastrophe.
         We videotaped and livestreamed our actions, and called the pipeline companies so they could safely shut down the pipelines. We closed the valves and waited on the scene for the police. We were arrested and charged with severe felonies.
         In addition to being prosecuted in state courts, we are also the target of a recent letter signed by 84 members of Congress to the Justice Department, asking why the agency hadn't also prosecuted us under federal law, and whether our actions meet the definition of domestic terrorism under the Patriot Act.

    That's preposterous, and likely an attempt at intimidation. But we're undaunted. We are pleading "not guilty" in court and arguing before our juries that the climate emergency necessitated our closing of the emergency valves. The U.S. must quickly transition to alternative energy sources, and the dirtiest fuels like tar sands must be the first to go. Our actions were the equivalent to breaking into a burning house to save children trapped inside.
         The legal name for that argument is "necessity defense." It contends that our actions were warranted by the need to prevent worse harms. And, it allows defendants to put expert witnesses and testimony about those climate harms before the jury. In valve-turner trials in North Dakota and Washington state, and in my own trial this week in Montana, the judges threw out necessity defense, so our juries were prevented from hearing testimony about climate change. But in a pending valve-turner trial in Minnesota, the judge granted it, which could be a far-reaching precedent....
         Our lives are at stake. But people won't understand that until some of us demonstrate we're indeed fighting for our lives. The courageous, prayerful, nonviolent example set at Standing Rock exhibited the same powerful vulnerability as the march on Selma. That's the blueprint. If we're serious about protecting our loved ones, we have to put ourselves on the line.


    Jury Convicts Climate-Change Activist of Closing Oil Pipeline Valve, by Laura Lundquist, Courthouse News, 22 November 2017 (842 words)

    EXCERPTS: FORT BENTON, Mont. (CN) — A jury found a climate-change activist guilty of criminal trespass and felony criminal mischief for his part in last year's four-state effort to shut down pipelines carrying tar-sands oil from Canada.
         At midday Wednesday after an hour of deliberation, six women and six men from Montana's Choteau County reached a verdict supporting the state's contention that Leonard Higgins' actions on Oct. 16, 2016, damaged more than the few chains that locked the valves controlling the Enbridge pipeline near Big Sandy, Montana. Higgins and four other activists participated in a coordinated effort to simultaneously shut down oil pipelines in Washington state, Montana, North Dakota and Minnesota....
         Earlier on Wednesday, Higgins took the stand in his own defense. The Portland, Oregon, resident described how he studied pipeline safety to ensure his actions and those of other activists would not damage the pipeline or endanger people. He said he accepted he would be breaking the law by trespassing onto Enbridge property but intended to damage only the chains locking the valves and the property enclosure.
         After the call alerting the pipeline company had been made, and after he noted that the flow of oil had stopped, Higgins said he shut the valve even though it was unnecessary. Then he waited an hour for deputies to arrive and arrest him. "A large part of this was symbolic, to bring attention to the problem of climate change," Higgins said. "I felt responsible to stand up for what's right. Sometimes, what's right isn't necessarily what's legal. And that's a really hard conclusion to come to."
         Prior to the trial, Boucher refused to allow Higgins to use a compulsion or necessity defense, where Higgins would have said the imminent danger posed by climate change justified his actions. Gannon repeatedly objected to Higgins' testimony anytime "climate change" was mentioned. But before Higgins left the stand, Boucher asked him about his intent, startling the defense.
         During a break, defense attorney Lauren Reagen said she might include that in an appeal. "It seemed like (the judge) opened the door and was attempting to create a stronger record for himself based on the denial of the necessity defense without letting us put up any testimony to bolster that defense," Reagan said. Judges in Washington and North Dakota also rejected the necessity defense, but the Minnesota judge will allow it. That trial is tentatively scheduled for December. Higgins' sentencing is scheduled for Jan. 2.
         Surrounded by 50 supporters outside the courthouse, Higgins said he was disappointed that his testimony was limited. "I was surprised I didn't get to talk about climate change at all. It was important to show what my intent was and what my state of mind was. But anytime I came anywhere close to talking about climate-change science — which scares me more than the verdict today — I was stopped from speaking," Higgins said.


    Anti-Pipeline Activist Found Guilty After Being Barred From Mentioning Climate Change, by Dominique Mosbergen, Huffington Post, 23 November 2017

    EXCERPTS (quotations unique to this report): ... In a statement sent to HuffPost, Steve Kent, a spokesman for Climate Direct Action, explained that Higgins had hoped to present a "necessity defense," which would have allowed him to argue before the jury that "his action was necessary in order to prevent climate harms much more severe than the consequences of trespassing and turning the pipeline emergency valve."
         However, Judge Daniel Boucher denied this motion without a hearing, saying that "the energy policy of the United States is not on trial." That meant Higgins could not discuss or provide evidence of climate change in court. As Kent noted, a Minnesota judge recently allowed a similar climate necessity defense in the trial of some of Higgins' fellow valve turners.
         "I think it's a sensible ruling that will allow the jurors to take into consideration all of the information that they really need to rule on this case properly," Marla Marcum, director of the Climate Disobedience Center, told Inside Climate News in reaction to the Minnesota judge's decision.
         After his conviction on Wednesday, Higgins, who is free on bail pending his sentencing, said he was "disappointed and surprised" by the verdict and that he intends to appeal. "I'm happy for the opportunity to share why I had to shut down this pipeline, and I really appreciate the time and dedication of the jury and the judge," Higgins said outside the courthouse. "I was disappointed and surprised by the verdict, but even more disappointed that I was not allowed a 'necessity defense,' and that I wasn't allowed to talk about climate change as it related to my state of mind. When I tried to talk about why I did what I did, I was silenced."...
         According to Greenpeace, Alberta's tar sands industry produces some of the world's "dirtiest" oil — with each barrel resulting in three to four times as much greenhouse gas emissions as regular crude oil. A 2013 report by Ecofys concluded that Canada's tar sands ranked fifth among the world's 14 largest carbon intensive projects.


    VIDEO: Higgins' Defense Team Response, Bozeman Gazette-Times, 25 November 2017 (1 minute). Also on youtube.

       Leonard Higgins' defense team Kelsey Skaggs of the Climate Defense Project, Herman Watson IV of the Watson Law Office, and Lauren Regan of the Civil Liberties Defense Center.

    Watson says, "...It's our position that he didn't commit a felony; he committed a misdemeanor. And a misdemeanor is what's called 'a lesser included offense' to that felony. So, Mr. Higgins isn't denying that he damaged property; he cut three chains. But those three chains were less than $1,500 worth of damage. And that's our position."


    •** PRESS RELEASE: Barred from discussing climate change in court, climate activist Leonard Higgins gets felony conviction for shutting off a tar sands pipeline, by Stephen Kent, Shut It Down Today: Climate Direct Action, 23 November 2017 (1,000 words)

    EXCERPTS: In a remarkably short tria/ in Montana's Chouteau County District Court lasting just a day and a half, the jury found Leonard Higgins, a retired Oregon state worker turned climate activist who shut off a tar sands pipeline to fight climate change, guilty of felony criminal mischief and misdemeanor criminal trespass....
         In addition to being prosecuted in state court, Higgins and his fellow "valve turners" were recently the target of a letter signed by 84 members of Congress to the Justice Department, asking pointedly why it hadn't also prosecuted them under federal law, and whether their actions met the definition of domestic terrorism under the Patriot Act. Earlier this month Reuters reported the letter and the Justice Department's response "could escalate tensions between climate activists and the [Trump] administration."
         But Higgins, a mild-mannered 65-year-old who says he acted out of conscience to help prevent climate harms for the sake of his children and grandchildren, was the opposite of confrontational. He expressed gratitude for his day in court and the chance to share his story and spend Thanksgiving with friends and supporters who attended the trial, "in such a beautiful place." He pleaded guilty to misdemeanor trespass and doesn't dispute the facts of what he did, but argues that the imperative to prevent climate harms justified his action. He was not permitted to make that argument in court, however....
         But Judge Daniel Boucher, who presided in the trial, denied without a hearing Higgins' requests for a necessity defense, calling them a "mistaken attempt" "to place U.S. energy policy on trial." That ruling meant Higgins' jury was barred from hearing or considering evidence about the climate harms that motivated him....
         So without using the word "climate," Higgins sought to convey that his action was a matter of conscience, answering a call he felt to do something effective to prevent the harms tar sands cause. "I began to reactivate in my church, and thought about what I could do to atone, frankly, for just paying attention to my own comfort and success," he said. When asked by the prosecutor what he expected to be the repercussions of turning off the pipeline, Higgins responded, "Two things: to face the consequences, and to use this chance to talk about the problem."
         By "the problem," Higgins meant the problem of accelerating climate change amid continued exploitation of carbon-intensive fossil fuels. In the wake of Standing Rock, more pipeline protests have sprung up nationwide, including against the Line 3 pipeline expansion in Minnesota, the Bayou Bridge Pipeline in Louisiana, the Trans-Pecos Pipeline in West Texas, the Diamond Pipeline in Memphis, the Sabal Trail Pipeline in Florida, and others. At the same time, the crackdown on the protests is intensifying. So far this year, several states have passed laws that would criminalize and toughen penalties for peaceful protest and non-violent direct action. Another 20 states are considering such measures.
         That makes the trials of Higgins and his fellow climate activists important precedents. More such trials are coming, with more serious charges and penalties at stake. "As [more people] see examples of people putting aside the comforts and the complacency," said Higgins, "they'll feel the same compulsion, the same duty to take action, to do what's right."

    Additional press information available at Climate Direct Action MEDIA page.


    •** I shut down an oil pipeline — because climate change is a ticking bomb, Guest opinion by Emily Johnston, The Guardian, 24 November 2017 (730 words)

    Emily Johnston, 11 October 2016, Clearbrook Minnesota

       FULL TEXT: A little over a year ago, four friends and I shut down all five pipelines carrying tar sands crude oil into the United States by using emergency shut-off valves. As recent months have made clear, climate change is not only an imminent threat; it is an existing catastrophe. It's going to get worse, and tar sands oil — the dirtiest oil on Earth — is one of the reasons.
         We did this very, very carefully — after talking to pipeline engineers, and doing our own research. Before we touched a thing, we called the pipeline companies twice to warn them, and let them turn off the pipelines themselves if they thought that was better; all of them did so.
         We knew we were at risk for years in prison. But the nation needs to wake up now to what's coming our way if we don't reduce emissions boldly and fast; business as usual is now genocidal.  

         In shutting off the pipelines, we hoped to be part of that wake-up, to put ourselves in legal jeopardy in order to state dramatically and unambiguously that normal methods of political action and protest are simply not working with anywhere near the speed that we need them to.
         One major hope of ours was to set legal precedent by using the "necessity defense" and bringing in expert witnesses to testify that because of the egregious nature of tar sands crude and the urgency of the climate crisis, we'd actually been acting in accordance with higher laws. The classic example of a legitimate use of the necessity defense is when someone is arrested for breaking and entering after they hear a baby crying in a burning building, and rush in to save her.
         Because it requires a high bar of proof — you must have tried everything else, the danger must be imminent, the action must be likely to be effective — courts seldom even allow this defense to be argued, or expert witnesses to be brought; their only concern, generally, is did you break and enter? Not why.
         Three of our trials (which are in four states) had already rejected the use of the necessity defense. In North Dakota, the judge said essentially "I'm not going to let you put US energy policy on trial". But recently, I and the other Minnesota defendants were finally granted it. I have little doubt that the awful weather events of the last couple of months played some role in this — it's not just scientists seeing the truth anymore: the building is indeed burning, and all the world's babies are in it. 
         I was struck by the North Dakota judge's implicit understanding that letting science be spoken in her courtroom would have had the effect of putting energy policy on trial — of reversing, in effect, who was the defendant, and who the prosecutor. We had no demagogues lined up; we had the nation's pre-eminent climate scientist ready, as well as two people who were to speak on the effectiveness of actions such as ours (often referred to as nonviolent resistance). How far awry must a system go, before the laws of physics are forbidden in a court of law?
         Yet it is indeed a dangerous thing to speak the truth sometimes — dangerous in particular to those who have been lying to us for decades, and who have gotten very, very rich by doing so. Those who are also, at the moment, running our country.
         So I find myself feeling peculiarly exposed now. When I first heard the news, elated, I called and texted and emailed family and friends. I deeply regretted that my mother — who died in June — didn't live long enough to see us do our best to change legal history. I wish she had known that a judge had been persuaded by the legitimacy of our argument (if not yet of its rightness) — a judge, no less, in a county where the pipeline company, Enbridge, is the single largest property tax payer. 
         I'm heartened by the way the law can be supple — not a thing that, once set, holds that exact shape forever (or we'd still have slavery, and I couldn't vote or marry), but a thing that responds — slowly — to our evolving understanding of what is just and true. When it comes to climate change, there's little enough to feel heartened by, so I'll take it.
     


    AUDIO: Joint SERMON by Michael Foster (pt. 1) and Rev. Beth Chronister (pt. 2) at University Unitarian Church of Seattle, 26 November 2017

    Pt. 1 by MICHAEL FOSTER - mp3 Audio (16 minutes) and transcript in pdf (1,731 words)
    EXCERPTS: ... What can one person do to save the world? A heck of a lot more than I ever imagined. It's not enough — not yet. But I didn't act alone. I was only able to do what I did because of communities like this one. And when we act together, in civil disobedience, we become a force to change the laws. In an emergency, the law to follow — the only law — is to preserve life.
         ... I'm on a short timeline now — kind of like our planet, kind of like our home. And now I kind of know what it feels like to be hanging by a thread. So speaking with you really matters. I'm counting on you. Your response determines what happens after my sentencing.
         ... Someday what we're doing will be illegal, but not soon enough for our kids. Burning fossil fuels today is deadly, genocidal, child abuse. We are addicts, hopelessly unable to stop ourselves from poisoning and destroying everything we love.
    Pt. 2 by REV. BETH CHRONISTER - mp3 Audio (14 minutes) and transcript in pdf (1,640 words)
    EXCERPTS: 10:27 - ... When Michael and the others turned those valves, they were participating in a greater turning — a greater turning that cannot be stopped, not by the legal system nor denial nor greed, a turning that says to all of us with ears to hear, "we need you." Life is in peril. We need the strength and the commitment of millions of individuals and thousands of communities to continue to turn the valves, to practice living in ways that do less harm, and to come together to build our collective power...
        12:09 - Timothy DeChristopher said, "What one person can do is plant the seeds of love and outrage in the hearts of a movement. And if those hearts are fertile ground, those seeds of love and outrage will grow — into a revolution." Note: DeChristopher's talk at this church in 2016 is on youtube: "The Power of Civil Disobedience"


    •** 107 Law Professors File Amicus Brief in Minnesota v. Johnston et al., posted by Climate Defense Project, 4 December 2017

       One hundred seven law professors, along with the Society of American Law Teachers, filed an amicus brief in the Minnesota v. Johnston et al. case today. The brief was submitted as part of an appeal of the trial court's order granting the defendants permission to present the necessity defense at trial.
         Covering topics including the First Amendment, the historical use of the necessity defense, the right to trial by jury, and emerging constitutional theories in climate law, the brief argued that the trial court's order allowing the necessity defense should be affirmed.

    Note: The entire brief can be accessed in pdf via the link above.

    Footnote 1 in brief: Alice M. Cherry, of Climate Defense Project, contributed to the writing of this brief. No party or counsel for any party authored this brief in whole or in part, and no person or entity made a monetary contribution to the preparation or submission of this brief. Minn. R. Civ. App. P. 129.03.

    EXCERPTS: ... The four individuals named in this case accepted serious legal risks for the sake of catalyzing action on a public policy problem of outsized proportions and thereby to preserve the possibility of an Earth habitable for future generations. Their actions were undertaken with great care and were supported by overwhelming scientific consensus as to the state of climate tipping points and the gravity of global harm presented by climate disruption. They now seek to explain and justify their actions to a jury of their peers.
         Nonviolent civil disobedience is part of the American democratic tradition. The four individuals named above stand in the shoes of the American freedom fighters, the abolitionists, the suffragettes, the civil rights campaigners of the 1960s, and the antiwar protesters that followed. Criminal trials in which protesters have explained and argued their views are an integral part of that tradition.
         The use of the necessity defense in this case is not only doctrinally appropriate but strengthens the constitutional bedrock on which our legal system 28 rests. That bedrock includes the right to trial by jury, freedom of expression and debate, and a natural environment capable of providing for human needs.


    'I had no choice': Portland 'Valve Turner' convicted in climate fight, by Thacher Schmid, Street Roots News (Portland, OR), 8 December 2017

       EXCERPTS: ... [At Leonard Higgins' trial in Montana] scientific evidence about climate change — the core of what activists call the necessity defense — was not allowed. "Every time I talked about climate change and referenced (NASA climate change scientist) Dr. James Hansen and my feeling that I had no choice," Higgins explained, "the prosecution would object that it was immaterial or irrelevant, and the judge would uphold the objection."
         And so, a few hours before Thanksgiving, a jury convicted Higgins of felony criminal mischief and misdemeanor criminal trespass after an hour's deliberation. The conviction stems from his role in the most expansive, coordinated takeover of fossil fuel infrastructure ever attempted in the U.S.
         ... Whatever happens, the four-state action Higgins and the other Valve Turners spearheaded on Oct. 11, 2016 may someday be seen as a turning point in the fight against climate change denial. On that date the Valve Turners essentially shut down the flow of Alberta Tar Sands oil from Canada into the United States.
         By early 2018, the legal consequences — and the uneven sentences given in states with divergent politics — will come into focus. Fellow Valve Turner Michael Foster in North Dakota faces up to 23 years at his sentencing Jan. 18. By contrast, Ken Ward got 32 days and probation in Washington state, and Emily Johnston and Annette Klapstein may also get off comparatively lightly in Minnesota.

    As in Montana, Washington and North Dakota courts disallowed the "necessity defense", cutting off all connection between climate change science and the activists' actions.
         In Minnesota's fourth and last Valve Turner trial, however, the worm may finally turn. In Clearwater County, Minn., Judge Robert Tiffany is allowing defendants Johnston and Klapstein to use the necessity defense. The prosecution has appealed, but Higgins believes the situation is "working towards an appropriate crescendo."
         ... Higgins' approach isn't based in radicalism, but rather science — the stuff he relied upon during three decades of information technology project management for the state. "I've lived my whole life pretty much out of responsibility and obligation," Higgins said. "As an IT manager on large projects, I was the person who figured out how to get things done despite the red tape and challenges," Higgins said. "This (civil disobedience) just kind of continues that."
         Yet he just became a felon because of his commitment to "mitigate catastrophic climate change and its effects on public health and the natural environment," as attorney Herman Watson IV's "Memorandum of Necessity" explains. "It's not incidental to be a felon for me," Higgins said. "It's a label now. It's not as harsh as it could have been if my colleagues in Washington and North Dakota were not also felons, but it's a bit shocking."
         ... Higgins says being locked up is less scary than doing nothing. His basic moral calculus holds that what matters most is saving life on Earth. "We're basically dooming our children and future generations to an earth that definitely will not support the life we've known and may not support us," Higgins said.
         ... "Part of it is the time of life," said Higgins, 65. "I'm past the age that my mother died. My dad went into a long-term decline. It's a matter of looking at life the way I've spent it and asking what's the most important thing for me to do with the years I've got left."
         Those listening, however, are young. Some of the journalists arrested are in their 20s, and Higgins and other Valve Turners have been speaking at colleges across the nation. The mock trial in Missoula may have been merely an exercise, but it explored the essential idea of what is happening with our changing climate. "I have no idea if doing the sacrifices I'm doing is going to make a scant bit of difference with the problem," Higgins said. "But how can I live with myself and look myself in the eye if I do nothing?" ...


    VIDEO: Michael Foster at Public Affairs Forum, First Unitarian Universalist Church of Austin TX
       17 December 2017 (58 minutes)

       Editor's note: Because of introductions and inclusion of the 9-minute Valve Turner video, Foster's presentation begins at timecode 13:56. His first talking points cover much the same ground as found in several of his previous videos. Entirely new material can be accessed as follows:
    • 30:57 - 350.org regional organizations; Seattle 350 success in bank divestment of City assets

    • 34:20 - details on recent direct action success at Tacoma LNG construction site and jury not-guilty verdict

    • 45:05 - Foster's volunteer work with Plant-for-the-Planet expands into collaboration with Archangel Ancient Tree Project's planting of California Redwood saplings in Seattle-area city parks

    • 55:54 - solar power and other ways for citizens to cut carbon emissions personally


    Quebec judge compares pipeline protester's mindset to terrorists in Paris, by Danielle Rochette, APTN National News, 21 December 2017.

    EXCERPTS: ... Two years ago Brabant and Anton Bueckert chained themselves to a section of pipeline belonging to Enbridge's Line 9 — a 40-year-old network of pipelines running crude from Ontario into Quebec. They were there for 10 hours before removed and arrested by police. On Monday they were sentenced to three years probation, 240 hours of community service, $750 donation to a charitable organization and a three-year ban from participating in a demonstration against Enbridge.
         Bueckert said the sentence could have been worse if they were charged under Canada's anti-terrorism law introduced by the Harper government in 2015. "So we were prepared to be charged with terrorism, we were willing to take that risk because of what we believed in," he said. "And I know it is not going to be fun having probation, officers meetings, whatever, but in every sense of the word it was worth and I'll do it again."
    VIDEO: Cynthia Linet on Direct Action, Jury Nullification, the Justice System, and Stopping the Tacoma LNG Plant, (5-minute video) by Elliot Stoller, 30 December 2017.
    EXCERPTS: "When the Valve Turners did their actions, I really understood what they were saying: that direct action is really our only hope now. At that point I began looking for a place to chain myself to... I was arrested with a group of five other people; we were called the Tacoma Super Six. We chained ourselves to an auger at the construction site at a liquefied natural gas (under construction) facility... "

    Editor's note: Because the construction site was currently being litigated by the Puyallup Tribe for illegal taking of their property, the jury was able to delivered "not guilty" verdicts on the criminal trespass charges of the two women who had been arrested onsite — without wrestling with the "necessity" of climate direction act. Nevertheless, Linet's description in this video of the history and intent of 'jury nullification' is very instructive. To learn the details of their action and the court outcome, see "Jury acquits grandmas who chained themselves to equipment at Tacoma's LNG construction site", by Alexis Krell, 14 December 2017, The News Tribune (Tacoma WA).


     
    Judicial Events for 2017 (linked above)

    • KEN WARD - pre-trial hearing January 25; trial January 31 (hung jury); retrial pre-hearing May 12; retrial June 5 (split decision); sentencing June 23; trial on appeal of burglary conviction TBA 2018

    • MICHAEL FOSTER - Trial October 3 (conviction); Sentencing February 6, 2018

    • LEONARD HIGGINS - Pre-trial hearing May 11; trial November 21 (conviction); sentencing March 20, 2018

    • EMILY JOHNSTON & ANNETTE KLAPSTEIN - Pre-trial hearing August 15; necessity defense granted October 11; trial TBA 2018




    2018 News • Valve Turners USA

     
    Judicial schedule and events for 2018

    • MICHAEL FOSTER - Sentencing February 6; prison release Aug 1

    • LEONARD HIGGINS - Sentencing March 20

    • EMILY JOHNSTON & ANNETTE KLAPSTEIN - - Necessity defense appeals court hearing February 15; Necessity Defense upheld April 23; Minnesota Supreme Court refuses prosecutor appeal July 17;
    MN trial October 8

    • KEN WARD - Trial on appeal (burglary conviction) - to be determined


    •**
    Environmentalists Try a New Argument in Court: It's Legal to Break the Law To Save the Planet , by Stuart Miller, The Daily Beast, 3 January 2018.

    TAGLINE: For the first time ever, the 'necessity defense' will be allowed to let activists argue illegally shutting off pipelines isn't a crime compared to global warming.

    EXCERPTS: In October 2016, Johnston and four other activists nicknamed the Valve Turners briefly shut down 15 percent of America's oil supply to call attention to climate change. The Valve Turners called the pipeline companies to alert them, live-streamed shutoffs, and peacefully awaited their arrests in Minnesota, Washington, North Dakota, and Montana.
         "I signed on for this, knowing I could go to prison, because of my increasing awareness of how dire the situation is," says Johnston. "Even before the election it was clear the legal and political system needed some kind of shock." Johnston, along with fellow Valve Turner Annette Klapstein, and their video and support team, go on trial in January. They will likely be the first defendants in the United States to use the "necessity defense" for environmental reasons which allows defendants to argue that they committed a crime to prevent a greater harm from occurring — in this case the destruction civilization.
         This was part of the Valve Turners' plan all along, to extend their call to arms beyond the immediate impact of the event itself. "The Valve Turners was visually dramatic and a high legal risk so we thought it might get the attention we need and then we could leverage that attention," Johnston said.
         Johnson's partners in crime had tried persuading the courts to let them use this defense without success. Ken Ward, Michael Foster and Leonard Higgins were found guilty in Washington, North Dakota and Montana, respectively, after cutting padlocks to get to the valves. Ward was convicted of second-degree burglary and sentenced to perform community service; Foster was convicted of felony criminal mischief after a prosecutor compared him to the Unabomber and argued that acquitting him would lead down a slippery slope to Sharia law. Foster faces two decades in prison during his sentencing in January. Higgins was found guilty of felony criminal mischief and faces up to 10 years in prison.
         "We knew the odds were quite slender but by doing this in four different states we had four separate chances," Johnston says. At the trial, the Valve Turners' lawyers will bring forth expert witnesses, likely including the two leading voices on climate change: Dr. James Hansen, the former head of NASA's Goddard Institute for Space Studies, and activist Bill McKibben, author of The End of Nature. Johnston believes their testimony will not only sway the jury it will also attract more high-profile media attention to the cause.
         ... The Valve Turners aren't the first to put forth the necessity defense for an environmental direct action though. Tim DeChristopher's effort to use it was rejected after he was charged over disrupting a government auction in 2008 by bidding on oil and gas land leases for which he had no intention of paying. DeChristopher successfully prevented the sale but without the necessity defense he was found guilty and spent 21 months in prison.
         Since then, the tactic has come closer to working. A judge approved it in 2014 after Ward and Jay O'Hara< used a lobster boat to blockade 40,000 tons of coal from being delivered to a generating station in Massachusetts. However, a sympathetic prosecutor dropped the charges and even pledged to join the cause. The defense was initially allowed in the "Delta Five" trial last year, involving an oil train blockade in Washington. But the judge reversed course before jury deliberations, declaring that defense lawyers had not sufficiently proven a lack of legal alternatives for resolving the situation, which is essential for the necessity defense.
         In addition to the Valve Turners trial in Minnesota, the necessity defense has also been allowed a separate case for next year, this one involving the blockading of an oil train in Washington.
         "Trump ran on a platform of ruthlessness and got stronger by displaying cruelty," says DeChristopher, who said the administration could be a game changer for the necessity defense, Ward said the necessity defense will start winning because "things are going to get worse and the more freaked out people become the more judges and juries are going to let people off."
         A jury verdict would carry more weight with the public than the opinions of activists, De Christopher believes, and bring to light how serious the crisis is.
         McKibben agrees. "People in our society haven't often sat still for a few hours and thought about the implications of climate change in that way," he says of prospective jurors. "So if they do, suddenly what seemed at first glance to them as odd and alarming [the Valve Turners' actions] may suddenly appear to them in a very different light."
         But the addition of the necessity defense to the activists' arsenal raises important questions about what can be justified as necessary, and how far environmentalists may be willing to go to test the limits. If Americans are persuaded that the only way to save the planet is to break the law then it raises the question of whether jurors might be willing to accept actions beyond carefully planned, safety-first protests like the one by the Valve Turners.
         "What's justified is a hard question," says Travis Nichols, Greenpeace USA's media director. "I don't believe the peaceful protest has been exhausted. Things are dire but we can still stop the worst effects and the future has not been foreclosed upon." Indeed, less than a month after the Valve Turners event, Ruby Montoya and Jessica Reznicek of Iowa began their own pipeline sabotage campaign, setting fire to heavy machinery and cutting through or burning empty pipeline valves and electrical units. They later publicly claimed responsibility, endorsing the safe use of arson, hoping to inspire others to take action.
         "The government is creating an atmosphere of frustration and anger that could indeed lead to [more destructive] attacks," says Paul Watson, founder of Sea Shepherd. "It's almost inevitable the way this is going." Radical environmentalism is nothing new, nor is the debate over how far to go for the cause. The modern movement started shortly after Edward Abbey published his 1975 novel The Monkey Wrench Gang, which made the case for sabotage in defense of the environment. Two years later, Watson was forced out of Greenpeace in part because he wanted to pursue "aggressive non-violence."
         Others went further, like  like Earth Liberation Front and Earth First: they drove spikes into trees to disrupt logging and set fire to lumber companies, an SUV dealership, and a college library. (There were a few injuries and some activists publicly regretted using arson.) Meanwhile, Watson founded Sea Shepherd and the group gained notoriety by ramming and even sinking ships to stop illegal whaling. Damaging property is not a violent crime to Watson: "If a poacher is about to shoot an elephant and you knock the gun out of his hand and break the gun, is that an act of violence? I look at it as an act of nonviolence." The current round of direct action protests reflects that split, although no one has gone as far as the Earth Liberation Front and Earth First extremists — yet.
         When Ward and O'Hara planned their lobster boat blockade, they limited their efforts "because we wanted to be as lawful as possible." Even with the Valve Turners, Ward was hesitant to cut padlocks. "It seemed incidental," he says, "but it is a threshold step." Once you break the law in the name of a cause, the discussion shifts to how many laws can and should be broken, given the enormity of the stakes. "I don't think we should ever do anything that has any real risk of injuring people or the environment," Ward says.
         If activists do resort to violence, the bad guys win, Greenpeace's Nichols believes. "That's their dream scenario, the idea that peaceful protest has run its course and they can respond with disproportionate violence."  And if the activists lash out, then the necessity defense loses potency.
         "I doubt that right now something like blowing up a refinery would resonate with the public," DeChristopher says. "If people thought, 'No one is going to understand this even if we're allowed to use the necessity defense' then it might be good to reconsider their actions. That's part of the brilliance of this system."
         Still, as climate change worsens, activists believe people will stretch the boundaries of direct action. DeChristopher says he'd even keep an open mind to applying the necessity defense to the sort of attacks perpetrated by ELF and Earth First in the previous generation if others tried it. "We know there's going to be more sabotage in the climate movement, which is why it's so important that we start actually making shifts in our society now," he says. "People are not going to give up, whole generations are not just going to die quietly. If people continue to dismiss this existential threat to our civilization, we will continue to see escalating chaos to our society. There's no doubt about that."


    •** VIDEO: Michael Foster and Samuel Jessup Trial Recap featuring Dr. James Hansen, by Steve Liptay, 6 minutes, 4 January 2018.

    Thanks to videography work from Steve Liptay, filmmaker and one of the 4 Minnesota defendants, here are clips from Michael Foster and Sam Jessup's trial in North Dakota. Michael faces up to 21 years, and Sam faces up to 11 years in prison at their upcoming February 6th sentencing hearing. The video begins with conversation with Dr. James Hansen. Dr. Hansen traveled to North Dakota for the trial but was not allowed to testify.


    •** Court cases from coordinated 2016 pipeline protest delayed , by Blake Nicholson (Associated Press), San Francisco Chronicle, 9 January 2018. Also published in New York Times; Great Falls Tribune

    FULL TEXT: BISMARCK, N.D. — Several court cases stemming from a coordinated pipeline protest in four states have been delayed, including one where an appeals court is deciding whether to allow two women to argue their law-breaking was necessary to prevent a greater harm.
         Eleven activists with the group Climate Direct Action were arrested on Oct. 11, 2016, when they tried to either shut down pipelines in North Dakota, Minnesota, Montana and Washington state or film the attempts. The activists said they were protesting fossil fuels and supporting people demonstrating against the Dakota Access oil pipeline, which was still under construction. The activists broke into private property and turned shutoff valves at five pipelines that moved oil from Canada to the U.S.
         In Minnesota, prosecutors have asked a state appeals court to reverse a judge's ruling that would allow two women to use the so-called necessity defense. The defense is popular among environmental activists who argue that global warming caused by fossil fuels is the greater harm, though legal experts say it's a long-shot defense.
         The appeal delayed the December trial of Seattle-area residents Emily Johnston and Annette Klapstein, who are accused of closing valves on two pipelines in northwestern Minnesota. The trial hasn't been rescheduled, and their attorney said he doesn't expect a resolution on the appeal until spring.
         Sentencing has been delayed for two men who were barred from using necessity-defense arguments. Leonard Higgins of Portland, Oregon, was convicted in November of criminal mischief and trespassing in Montana; his January sentencing was pushed to March 20 after his attorneys asked for more time, according to court documents. Seattle resident Michael Foster also was set for sentencing this month in North Dakota but the hearing was moved to February because of a timing conflict.
         A Washington state case was resolved last year when Ken Ward, of Corbett, Oregon, was convicted of burglary and sentenced to two days in jail plus community supervision and community service. He, too, wasn't allowed to use the necessity defense.
         The six other arrested activists were accused of filming the vandalism. Prosecutors dropped charges against two of them in Washington. Trials are pending for two others in Minnesota and one in Montana, and one activist is to be sentenced in North Dakota the same day as Foster.


    •** Climate Change Made Me Do It: Activists Press The 'Necessity Defense', by Daniel Fisher, 10 January 2018, Forbes.

       On Sept. 23, 2016, a group of protesters blocked a Burlington Northern Santa Fe freight train carrying coal in Spokane, WA, to prevent the earth from warming up. From a scientific standpoint, the action was absurd: Stopping a single trainload of coal could hardly have any more impact on global climate change than the fluttering of a butterfly's wings in Tanzania.

    EXCERPTS cont.: As a piece of a political theater, it may have been more effective. The blockage by Rev. George Taylor and other members of groups called Veterans for Peace and Raging Grannies garnered widespread press coverage. And the protest may trigger a legal revolution as well.
         In a hearing tomorrow, a judge in Spokane is expected to hand down a written ruling allowing Taylor to argue he had no choice but to stop the train. Judge Debra Hayes has already indicated she'll allow Taylor, a Lutheran pastor, to present the so-called "necessity defense" to defeat state charges of criminal trespass. Her formal order would clear the way for him to bring in NASA scientists and other climate experts to try to convince a jury he had no reasonable alternative to halt human-induced global warming.
         The Spokane trial is one example of how activists are retooling the centuries-old necessity defense to justify increasingly aggressive protests designed not just to raise awareness of the risks of burning fossil fuels, but to prevent their movement across the country. An old doctrine, the necessity defense allows defendants to argue they broke the law to prevent a greater harm from occurring, like the captain who ordered a customer's cargo thrown overboard to prevent his or her ship from sinking. "In some ways it fits very well with climate change," said Kelsey Skaggs, a Harvard-trained lawyer and executive director of the Climate Defense Project, which supports climate activists. Defendants must prove the threat of overwhelming harm, Skaggs said, and "If climate change is not that, nothing is."
         Arguing against that position are state prosecutors and business organizations. They say the necessity defense should only be invoked in cases of imminent harm — think the ship captain, or prisoners escaping a burning jail — not when protesters violate one set of laws to protest another. The U.S. Court of Appeals for the Ninth Circuit summed up this argument in U.S. v. Schoon, a 1992 decision rejecting the necessity defense for protesters who spilled fake blood on the counters of an Internal Revenue Service office in Arizona, supposedly to prevent their tax dollars from supporting U.S. policy in El Salvador. "The real problem here is that litigants are trying to distort to their purposes an age-old common law doctrine meant for a very different set of circumstances," the Ninth Circuit ruled. "What these cases are really about is gaining notoriety for a cause."
         Federal courts have generally hewed to the reasoning in Schoon but state courts don't have to. A judge in Minnesota last year allowed defendants in the so-called "Valve Turners" case to claim necessity when they used bolt cutters to break into pipeline facilities and turn valves to prevent the flow of Canadian tar sands crude across five states. Two of the protesters were convicted of felonies, but Judge Robert Tiffany in Clearwater County, MN, ruled in October that four of the valve turners could argue they were trying to "prevent imminent climate catastrophe."
         It was the first written opinion allowing the necessity defense in a climate case, Skaggs said, although a Washington judge allowed defendants to present expert witnesses in a 2016 case before ultimately refusing to allow the jury to consider necessity. The protesters in that case were convicted of trespassing.
         Minnesota prosecutors are appealing Tiffany's ruling and the State of Washington is expected to appeal any ruling allowing Taylor to present a necessity defense. If those appeals fail, the defendants will be allowed to present expert witnesses like former NASA scientist James Hansen and Martin Gilens, a Princeton scholar who argues ordinary citizens can't have a meaningful impact on climate policy through the legislature because it is controlled by economic interests that oppose regulation. By presenting experts who say human-induced climate change is threatening the world's population and ordinary citizens can't use the political system to prevent it, lawyers hope to convince jurors their clients had no reasonable alternative but to break the law....
         ... Many judges have seized upon the imminence prong to reject the necessity defense, said Skaggs of the Climate Defense Project. Since human-induced global warming has been around at least since the dawn of the Industrial Age and is proceeding slowly, judges are inclined to rule that jurors can't hear evidence immediate action was needed. Climate activists argue warming is happening right now and needs to be stopped immediately.
         Regardless of how Taylor fares, the necessity defense is likely to remain an option for protesters facing state criminal charges. An infrastructure of legal theorists has grown to argue that protesters have a constitutional right to present facts that support their defense — the opening to bring experts who support their view of climate science into the courtroom. The argument seems to be working with at least some state judges, even if federal judges remain skeptical their courtrooms are the proper place to debate policy over whether and how to reduce industrial CO2 emissions.


    FILM: "Valve Turners" showing in Wild & Scenic Film Festival, film by Steve Liptay, shown in Nevada City CA, January 12-13, 2018.

       LEFT: Valve Turners Annette Klapstein (MN), Michael Foster (ND), and Leonard Higgins (MT) arranged several speaking engagements to coincide with the showing of Steve Liptay's 9-minute film, "Valve Turners," at the annual Wild and Scenic Film Festival in Nevada City CA.

    Steve Liptay not only produced the film, but he had been onsite documenting the Minnesota valve turning — and is facing felony charges in Minnesota for that action.

    Steve Liptay's Vimeo site

    FILM: "Valve Turners" (9 minutes)

    "New films lambaste climate denial, call for action", by Daisy Simmons, Yale Climate Action, 25 January 2018.

    EXCERPT re "The Valve Turners" film: "A group of activists — all in their 50s or older — are arrested for shutting down crude oil pipelines in four states in a coordinated effort to interrupt carbon emissions. "That is like the temperature of the Earth going down, as they close that valve!" one of the women exclaims. Of note, while several trials are still under way, a judge in Minnesota made the historically unprecedented move to allow defendants to use the "necessity" clause to argue that their action is an appropriate, practical response to addressing climate change."
    Editor's Note: After initial showings in California, the "Wild and Scenic Film Festival" entries are distributed in blocks for showing in cities around the nation. Below, Aspen Colorado is showing a block of 13 films that included the "Valve Turners":

    Valve Turner film at Aspen festival March 2018, by Mitzi Rapin, Aspen Daily News, 15 March 2018.

    EXCERPT: ... Another film that shows how methodical resistance can achieve stunning results is "Valve Turners," wherein a group of activists systematically turned off the valves in five pipelines carrying tar sands oil from Alberta, Canada, to the United States. Johan Edhe [on-tour manager for the festival] says, "It was shot on an iPhone and speaks volumes about what we stand for regarding citizens movements taking action and what can happen when people work together. Simple actions can have large impacts." ...


    "Ken Ward on Fox News", interviewed by Tucker Carlson, 17 January 2018 (5 minutes)

    EXCERPTS of Ken: "...We're trying to change an entire system here. Partly you can do that by your own behaviors, and I think that's exemplary. So, yes, I would think that anybody who's concerned about climate change ought to be very concerned about their own carbon impact. And at the same time we're trying to achieve political change in America as it is, and that's very hard to do without burning some fossil fuels ... I don't think climate change is being framed entirely in moral terms. It's being put into practical pragmatic terms. You know, we're facing cataclysmic climate change. That has moral implications, but it's got practical living implications....
        "I'm not sure I want to say I should be allowed to violate the law. What I believe is that in taking the actions such as we recently did, when we face charges and when we go to court, it is appropriate for us to be able to explain to the jury why we did it, and to be able to call some expert witnesses that would testify to the facts as we understand them.
        "In the action that I did, after two trials I was convicted of burglary. I'm not protesting burglary. I've had my house broken into. I think burglary laws are good. All I'm saying is, I'd like to be able to explain to the jury why I did what I did and call some experts, and then it's up to them....
        "I think the pro-life movement is pretty comparable in a lot of ways to the political situation that climate activists face, which is an insoluble problem that the mainstream politics — in this case, both parties — are not dealing with. That's the classic situation that calls for direct action."


    GUEST OPINION: "When Is Civil Disobedience Justified", by Rev. George Taylor, 20 January, 2018, The Spokesman-Review (Spokane WA). Editor's note: Rev. George Taylor was granted use of a climate necessity defense in a pre-trial hearing in Spokane just one week after a judge granted the Minnesota Valve Turners use of that defense.

    EXCERPTS: I am glad that Rob McKenna, former attorney general of the state of Washington, is not the presiding judge in my legal case of nonviolent civil disobedience now pending in Spokane County Superior Court. In a guest opinion column published in this paper on Jan. 11 ("Personal views don't excuse crimes"), Mr. McKenna set himself up as self-appointed judge, jury and prosecutor of my legal case even before it has gone to trial, which is now scheduled for April 23. As a former prosecutor himself, Mr. McKenna should know that you do not pass judgment on a case that is currently being investigated and litigated. In our system of justice, a person is considered innocent until proven guilty beyond a reasonable doubt by a jury of his peers — and not the other way around.
        ... In August 2016, I was part of a group of six citizens of the Spokane area who committed nonviolent civil disobedience by attempting to stop coal and oil trains from passing through Spokane on two separate occasions. We all six were arrested and charged with criminal trespass and blocking of a train. The three "Raging Grannies" and three veterans of the armed forces, of whom I was one, were prepared to take the legal consequences for what we did, which could include jail time. We did this in order to prevent a greater harm to the health and well-being of the citizens of Spokane and elsewhere, of the real and imminent danger of permitting unregulated coal and oil trains coming through downtown Spokane and imminent and real danger of the burning of these fossil fuels in energy production that cause greenhouse gas emissions that cause global warming that could destroy civilization as we know it, if left unchecked.
         As Nobel Prize laureate Dr. Steven Running, who testified at our necessity defense hearing, has said: "There is no such thing as clean coal or oil. The production, transport and use of these fossil fuels for energy is the single greatest threat today to the survival of civilization as we know it. We must stop this dangerous practice and switch as quickly as possible to more sustainable sources of energy such as wind, solar and hydro." After hearing Dr. Running's testimony and other expert witnesses, the judge allowed the necessity defense to be presented for a jury to decide at trial.
         ... There are three branches of the American government: executive, legislative and judicial. Each has a role to play in the checks and balances required to best serve the common good of all its citizens. All three branches have a responsibility to protect health and safety. I would challenge Mr. McKenna to do everything in his power, as a leader in the legal community, to preserve and protect our environment for the health and safety of this and future generations before it is too late, rather than criticize his fellow citizens for trying to do the same.

    George Taylor is a retired Presbyterian minister living in Spokane who serves as treasurer of Spokane Veterans for Peace, Chapter 35, and as visitation pastor for All Saints Lutheran Church.


       

    VIDEO: "Climate Heroes on Trial: The Valve Turners", Michael Foster and Emily Johnston, interviewed by Peter B. Collins, at the First Presbyterian Church in San Anselmo, CA, 14 January 2018 (90 minutes)

    This professionally filmed and edited, hi-resolution video was produced by Tom McAfee and offered on his Vimeo site. Church member Peter Anderson initiated this event, which was part of First Presbyterian Church's ongoing "Green Chautauqua Speaker Series on Climate Change." Access a 1-page timecoded index of topics. Overall, the first 2.5 minutes is an introduction, followed by the 7-minute Valve Turner video (by Steve Liptay). Peter B. Collins opens the interview at timecode 10:20. 12:37 is the first substantive valve turner response. Audience comments/questions begins at 58:15.

    During this event, a 13-minute video by the same producer, Tom McAfeee, was also shown. This contemplative video consists entirely of various photos of the five valve turners in action, in other forms of advocacy, and supporting one another at trials, while Native American flute music and song served as audio. On vimeo: VIDEO: Valve Turners: Shut It Down.


       VIDEO: "Oil and Water Don't Mix - Michael Foster at Westside UU (Seattle)"

    Guest sermon by Michael Foster, 28 January 2018
    Westside Unitarian Universalist Congregation
    Seattle, WA
    (31 min)

    01:04 - short video on Foster's action (by Steve Liptay)

    04:51 - sermon begins

    A high quality audio of the sermon is available through the church's podcast webpage: sermon audio.


    Reading by Emily Johnston at Willamette University, 1 February 2018.

       New material presented in the reading was published online February 16

    "The Darkness and the Needle", by Emily Johnston (2,400 words)

    EXCERPT: ... There are still moments when I feel exhausted and frustrated and alone — not a compass for anything but sorrow. But it's such an astonishing honor to live in this moment, knowing that we probably still have the power to set the world back onto a stable path, and thereby make life better, or at least possible, for countless people and other beings. I cannot imagine anything more meaningful.
         Uncertainty is possibility. In the uncertainty before us, in the sacrifices and joy of our connections with each other and every living thing, we have been given overwhelming abundance.
         In this darkness, we have begun our real journey.


    "Ohio and Iowa are the Latest of Eight States To Consider Anti-Protest Bills Aimed at Pipeline Opponents", by Alleen Brown, 2 February 2018, The Intercept. Editor's note: The VALVE TURNERS are mentioned five times in this lengthy article.

    EXCERPTS (from beginning of the article): On January 26, Ohio state Sen. Frank Hoagland, a retired Navy SEAL, tweeted, "Today, I introduced legislation that will make #OhioValley and SE #Ohio oil and gas workers safer while they are on the job providing the #Energy our state and country need!" A corresponding news release referred to "a number of reports of tampering with valves and controls at pipeline facilities that can create extremely dangerous situations." A post published two days earlier on ALEC's blog described a similar impetus for its model legislation, listing incidents including vandalism of DAPL construction equipment and the actions of so-called valve turners to disrupt the flow of tar sands oil. "While peaceful protests are an important part of Americans' right to free speech, causing damage and putting others at risk of harm is not," the post says.
         The valve turners — climate activists who attempted to turn off pipeline valves in five states — are already facing severe consequences for their actions. Three have been convicted of felonies in North Dakota and Montana, which carry maximum sentences of 10 to 21 years in prison. Another three are facing felony charges in Minnesota, where a judge has cleared the way for a necessity defense — the protesters will argue that their actions were necessary given the severity of the climate change threat...
         Marla Marcum a spokesperson for the Climate Disobedience Center, which is supporting the valve turners, as well as Montoya and Reznicek, said she believes the Iowa legislation is "actually about changing the subject and trying to convince the broader public that people that do these actions are dangerous." She added, "Every protester that has taken a risk like this has worked hard ensure that they're not going to cause injury to other people."
         According to Marcum, such actions are carried out in part to force companies to consider whether the additional costs of dealing with protester-driven disruptions make the project less worthwhile. She said they're also meant to be a kind of wake-up call for the public. "We think of it as an act of moral imagination to give people permission to imagine that we can perhaps decide to follow a course that allows us to do things differently, to get our energy in different ways, and that we actually have the power to do that."


    ASSOCIATED PRESS: Seattle activist sentenced in 4-state oil pipeline protest, by Blake Nicholson, 6 February 2018, Washington Post (and other newspapers that publish the A.P. story)

    FULL TEXT: BISMARCK, N.D. — An environmental activist from Seattle was sentenced Tuesday to serve one year in prison for targeting an oil pipeline in North Dakota. Michael Foster, 53, cut through a chain link fence and turned a shut-off valve on the Keystone pipeline in northeastern North Dakota on Oct. 11, 2016. His action was part of a four-state protest to draw attention to climate change and support demonstrations in southern North Dakota against the Dakota Access pipeline.
         A Pembina County jury last October convicted Foster of conspiracy, criminal mischief and trespass but acquitted him of reckless endangerment. State District Judge Laurie Fontaine sentenced him in Cavalier on Tuesday to three years in prison with two years suspended, $825 in fees and possible restitution. He'll be on probation for two years following his time behind bars.
         Samuel Jessup of Winooski, Vermont, who filmed Foster's protest, was sentenced Tuesday to two years of probation for conspiracy. Foster and Jessup were among 11 activists with the group Climate Direct Action who were arrested in North Dakota, Minnesota, Montana and Washington state the day of the protest. The activists broke into private property and turned shut-off valves at five pipelines that moved oil from Canada to the U.S.
         Foster said in an interview before his sentencing that he likely would appeal his conviction only if he received "a pretty strict sentence of incarceration," which he defined as more than five years. He could have been sentenced to as many as 21 years, and Jessup up to 11 years.
         Foster noted that the pipeline he targeted leaked an estimated 210,000 gallons of oil in northeastern South Dakota a year later, and he said he's unsure how successful the coordinated protest was in promoting environmentalists' message of the dangers of fossil fuels. "Whether it's making a difference or not, I wish I could say more than a year later that we could see the ripple effect, but I'm not sure I see that," he said.
         Among the other protesters, Ken Ward, of Corbett, Oregon, was convicted in Washington last June of burglary and sentenced to two days in jail plus community supervision and community service. Leonard Higgins of Portland, Oregon, was convicted in November of criminal mischief and trespassing in Montana and awaits a March 20 sentencing.
         The Minnesota cases of Seattle-area residents Emily Johnston and Annette Klapstein are ongoing, with a state appeals court weighing a judge's decision to allow the two women to use the so-called necessity defense. The defense is popular among environmental activists who argue that global warming caused by fossil fuels is a greater harm than their actions calling attention to it, though legal experts say it's a long-shot defense. The judge didn't allow it in Foster's case. The other arrested activists, like Jessup, were accused of filming the vandalism. Prosecutors dropped charges against two of them in Washington. Trials are pending for two others in Minnesota and one in Montana.


    Men who shut down Keystone Pipeline in northeast North Dakota found guilty", by Jessica Corbett, 6 February 2018, Common Dreams (online)

    EXCERPTS: Michael Foster, the valve turner who temporarily halted the flow of tar sands oil in TransCanada's Keystone pipeline in October 2016, called for future actions to address the global climate crisis before he headed to prison, where he is expected to serve at least a year of his three-year sentence.... Outside the court, Dr. James Hansen — who has been called "the father of modern climate change awareness" and was barred from testifying during the trial last year — said the public is generally unaware of the need to urgently address the climate crisis, emphasizing that we are entering "the age of consequences" for burning fossil fuels. "Michael Foster isn't a criminal," Hansen added, "he's a hero."...
        "I made a decision to commit civil disobedience to defend my family tree and yours, knowing that there is no government, no politician, no corporation on planet right now putting forward a plan to defend life as we know it," Foster also said Tuesday. "My kids and yours won't survive this mess if we don't clean up all this."


    Statement by James Hansen on the sentencing of Michael Foster, by James Hansen, 6 February 2018

    EXCERPTS: ... Judge Fontaine ruled out use of the necessity defense prior to the trial, and she also would not allow me to inform the jury about factors affecting Foster's state of mind and his action. However, I subsequently presented the Judge a letter pleading for leniency in his sentencing and an expert report explaining the urgency of actions to phase out fossil fuel emissions. The letter to Judge Fontaine and "How Does It Feel" are my summaries of the situation and its larger context. If I had to put it in one sentence, it might be: the older generations, the people in power, are failing to protect the rights and the future of young people.
       VIDEO: Higgins and Klapstein reflect on the North Dakota sentence

    6 February 2018

    (2 minutes on Facebook)

    'Valve turners' sentenced in Pembina County, 6 February 2018, Grand Forks Herald

    EXCERPTS: An environmental activist who shut off an emergency valve on the TransCanada Keystone oil pipeline was sentenced Tuesday to spend one year in prison. Michael Eric Foster, 53, of Seattle, initially was charged with eight different crimes for his participation in the 2016 action that targeted a section of pipeline that runs through northeast North Dakota. Foster was joined on trial by co-defendant Samuel L. Jessup, of Winooski, Vt., a fellow "valve-turner" who livestreamed Foster's actions at the pipeline for viewing on the Internet....
         For his three convictions, Foster was handed a three-year prison sentence with two years deferred. He faced a maximum possible sentence of 21 years in prison. Jessup — who could have seen as many as 11 years in prison — was sentenced to serve two years in prison with both years deferred. Jessup also has been placed on supervised probation. Both men were part of a group called Climate Direct Action. Their activities in North Dakota, near the town of Walhalla, were part of a national protest against oil pipelines.

    Washington 'Valve Turner' Activist Sentenced To Prison, by Courtney Flatt, 6 February 2018, OPB (online)>

    EXCERPTS: A Washington climate activist is the first 'valve turner' to go to prison for shutting off the flow of oil from Canada's tar sands region into the U.S. In October 2016, five activists got fed up with the usual ways to fight climate change. They decided to take direct action and coordinated a protest by shutting off oil pipelines carrying tar sands oil into the U.S.... Now, one of those activists is going to prison for the protest. Seattle resident Michael Foster was sentenced to three years in prison — with two of those years deferred — for his role in shutting off TransCanada's Keystone pipeline in North Dakota.
         Fellow activist Ken Ward shut off a pipeline in Washington's Skagit County. After two trials, Ward was eventually sentenced to 30 days of community service. He said Foster's sentencing was "difficult to hear." "We all took the same action in a coordinated way, and it's been something of a challenge to see how it's played out differently in each individual county and state — partly because of the laws, partly because of the politics," Ward said.
         But he said their protest had to be done to bring awareness and spark action to stop climate change. "(You) put your body on the line as a means of demonstrating that there are at least a core of people who believe so strongly in the quality of the problem that we're willing — if need be — to go to jail to try to stop it," Ward said....

    ND valve turner sentenced, by Jacob Notermann, 11 February 2018, Dakota Student

    EXCERPTS: ... Last Sunday, just two days before his sentencing, he and fellow valve turner Leonard Higgins were invited to speak at United Church of Christ in East Grand Forks, Minnesota. Foster said his activism began in 2012 after the Deepwater Horizon disaster, when an offshore BP drilling rig exploded in the Gulf of Mexico causing hundreds of millions of dollars in damages to the surrounding environment and local economies. He had been in support of "green" politicians, but found the Obama administration disappointing when it came to environmental policies and restricting the construction of pipelines.
         "It became less of a political question," Foster said, "and became more of a societal question. As long as we're the customers and we're demanding this product, we're going to get more product." Rather than being referred to as a radical activist or a sacrificial hero, Foster prefers to be called a conservative in regards to conserving the environment.
         Higgins, responsible for closing the pipeline in Montana, also said the group isn't branding themselves as radicals and are trying to be perceived as ordinary citizens. Higgins sees it as "our duty as citizens" to protect the environment. "The real crime was to turn to these pipelines back on and allow the continued flowed of the tar sands oil," Higgins said.
         ... As the day drew near to be sentenced, Foster said he was less concerned for his own personal justice and more concerned for those "on the outside." "My life is going to get very simple if I'm in prison," Foster said. "I'm going to wonder what's for lunch. People on the outside are going to be trying to figure out how to live and how to take care of their kids."
       VIDEO: 2-minute excerpt of Michael Foster's pre-sentencing statement in N.D. courtroom

    posted February 12

    on Climate Direct Action Facebook page

    Valve Turner Michael Foster Sentenced to 3 Years Prison (2 Years Deferred), by UU Ministry for Earth, 6 February 2018

    EXCERPTS: ... Michael Foster met with Aly Tharp, UU Ministry for Earth's Program Director, in Austin, Texas, last December after speaking at two UU churches in Austin (and many more UU congregations around the country). Michael mentioned to Aly that he became involved in the Unitarian Universalist community in Seattle after feeling inspired by their activity about climate change.
         Aly responds to Michael's sentencing by saying, "I am deeply saddened that Michael is spending any time in prison for his actions. I wish today's news were instead about the Keystone Pipeline getting closed down for good. I hope that Michael's bravery and commitment inspire more Unitarian Universalists to take bold action for climate justice, and I hope that Michael receives letters of support and gratitude every day of his prison sentence."
         Another valve-turner, Leonard Higgins, is also a Unitarian Universalist. Leonard was found guilty of misdemeanor trespass and felony criminal mischief for shutting off a Spectra tar sands pipeline, and his sentencing is now scheduled for March 20, 2018, in Fort Benton, Montana...

    See also Media roundup: UU 'valve turner' sentenced to prison for climate activism, by Rachel Walden, 16 February 2018, UU World.


       FEATURE ARTICLE: "I'm Just More Afraid of Climate Change Than I Am of Prison", by Michelle Nijhuis, 13 February 2018, New York Times Magazine (6,200 words)

    Tagline: How a group of five activists called the Valve Turners decided to fight global warming by doing whatever it takes.

    The journalist who wrote this investigative article spent more than a year attending various valve turner speaking and judicial events. Research began November 2016 when she attended a public event by the group at a church in Hood River, Oregon. She attended the trials of Ken Ward (Washington valve turner), and the trial and sentencing of North Dakota valve turner, Michael Foster.


    •** Did 4 activists need to shut down an oil pipeline? Minn. court will decide, by Elizabeth Dunbar, 16 February 2018, Minnesota Public Radio News (4 min audio + text). Note: text and audio are not the same

    TEXT EXCERPTS:

    ... Depending on how you look at it, these four people were either vandals trespassing on private property, or activists who needed to protect people from climate change.... The Minnesota Court of Appeals heard oral arguments on Thursday and will rule within 90 days whether the activists may use the necessity defense. Observers on both sides of the case say it could have broad implications in Minnesota and beyond.
         Some consider stopping the pipeline to be a form of civil disobedience, not unlike the Civil Rights movement or efforts to give women the right to vote. "The creation of our country was an act of massive civil disobedience. Civil disobedience is part of this country. It is one of the ways, certainly not the only way, but one of the ways that democracies deal with change," said Bill Quigley, a law professor at Loyola University in New Orleans who signed the brief.
         On Thursday, a lawyer for the activists told the appeals court judges that climate change is an emergency, and that through the coordinated action by activists, 15 percent of the country's oil supply was temporarily stopped. Andy Pearson, Midwest tar sands coordinator with MN 350, said other less extreme actions to fight climate change have come up short. "I think there are enough people that realize that we really are in a place of crisis on climate right now and we don't have as much time as any of us would like." ...

    AUDIO EXCERPTS: Leonard Higgins says he could understand where the Clearwater Count prosecutor was coming from in that what it would require of a small staff to litigate climate change "... and also has a fear that I think is appropriate that a jury, upon hearing the risks that we all face, may find these activists innocent."


    "Since Standing Rock, 56 Bills Have Been Introduced in 30 States to Restrict Protests", by Zoe Carpenter, 16 February 2018, The Nation

       Note: This lengthy article is the most complete to date on the ramping up of felony charges against fossil-fuel protestors and journalists onsite.

    EXCERPTS: ... Photojournalist Tracie Williams, on assignment for the National Press Photographers' Association, captured some of what happened next. Officers wearing military fatigues walked through the camp with assault rifles and knives, which they used to slice open the skins of teepees. Rain and fat flakes of snow fell against a backdrop of smoke rising from structures that had been set alight in a ceremonial gesture. Moments after clicking through the last two frames on her memory card — of two men in prayer, weapons aimed at their heads — she was arrested. Williams, who had been documenting life at Oceti Sakowin for three weeks leading up to the raid, told officers she was a journalist — and says she'd previously identified herself as a member of the press to the governor and the Army Corps and let them know that she'd be there, documenting, and obtained a press credential from the Morton County Sheriff — but they confiscated her equipment as evidence and detained her anyway. Williams was later charged with physical obstruction of government function, a Class A misdemeanor that could result in a year in jail and $3,000 in fines. Her trial is scheduled for June....

    EXCERPTS cont.: ... TigerSwan is mostly known as a mercenary and security firm conducting counterterror operations overseas; the company applied its militarized tactics in North Dakota, using aerial surveillance, infiltrating the camps, and referring to the indigenous-led movement as "an ideologically driven insurgency" that "generally followed the jihadist insurgency model."
         ... The practice of tarring activists with the language of the War on Terror has also spread beyond Standing Rock — and it could have legal implications. In late October, 80 Republicans and four Democrats sent a letter to Attorney General Jeff Sessions asking whether demonstrators who target energy infrastructure might be prosecuted as domestic terrorism. The authors argue that interfering with energy infrastructure poses "a threat to human life, and appear[s] to be intended to intimidate and coerce policy changes," and therefore might be considered terrorism. The letter specifically mentions a series of coordinated actions that occurred October 11, 2016, in which activists in four states were arrested for shutting off valves on pipelines carrying crude oil between Canada and the United States. (Three of those activists have already been convicted on felony charges.)
         ... "This is a battle for a narrative," said Standing Rock Sioux member and attorney Chase Iron Eyes, when I asked how he felt about activists' being referred to as terrorists or "jihadists." Iron Eyes was arrested during a police raid on another protest camp a few weeks before the eviction of Oceti Sakowin, and charged with a felony for "inciting a riot" as well as criminal trespass. He's facing five years in prison. Daniel Sheehan, who serves as chief counsel for the Lakota People's Law Office and is defending Iron Eyes, believes that Iron Eyes was surveilled and selectively prosecuted with felony charges because he was particularly outspoken in his opposition to the pipeline. His name appeared on several intelligence documents prepared by TigerSwan, including one labeling him as one of the "most radical" members of the protest movement...."


    "Youth Leaders Demand Bold Climate Action", 19 February 2018, San Juan Islander

         

    FULL TEXT: This morning February 19, dozens of youth from across Washington State converged on Olympia with their families to urge serious and swift attention to climate change. Several of the youth are plaintiffs in the lawsuits against the Washington State and Federal government, which demand such attention in order to protect their constitutional rights to a future.
         The youth held a press conference on the steps of the Capitol building, and then marched to the Governor's mansion to deliver an old-growth redwood tree seedling — part of the "Moving the Giants" assisted migration effort, because the redwoods are now at risk in California. Having offered this symbolic gift, the youths met with state legislators' offices, demanding that the legislators protect their right to a healthy future by halting all new fossil fuel infrastructure, committing to a state economy running on 100% renewable energy within 10 years, and increasing carbon sequestration in Washington's forests and soils.
         "There is no point in passing weak legislation just for the sake of saying you've done something. We need bold legislation that actually puts us on the track to 350ppm and climate recovery," said 16-year-old Jamie Margolin, a member of Plant for the Planet.
         "Our future is only as protected as we ourselves make it. If the adults are not going to do it, we'll have to do it ourselves. There isn't time anymore to wait around," added 14-year-old Athena Fain.
         The Youth Lead the Way Climate Lobby Day was a part of the Climate Countdown, a statewide grassroots campaign highlighting the urgency of the climate crisis and demanding that the Washington legislature take bold climate action now. There are only 16 days and 20 hours remaining in the 2018 legislative session; the youth say they will keep the pressure up, and that the legislators should think of them before they let climate bills die in committee.

    Editor's note: The 4th photo above shows the WA State Capitol Horticulturist, Brent Chapman (green jacket/red cap), accepting two Champion Coast Redwoods from Climate Justice Ambassadors from Plant for the Planet. The day began with Valve Turner Michael Foster (who initiated formation of the Seattle chapter of Plant for the Planet) calling the kids from the North Dakota State Penitentiary, visiting with them over breakfast.


    "Environmentalists Say They're Averting Climate Disaster. Conservatives Say It's Terrorism.", by Alexander C. Kaufman, 20 February 2018, Huffington Post

    EXCERPTS: ... "They hit the trifecta: 9/11, the Unabomber, and that somehow our action was going to lead to Sharia law," said Emily Johnston, 51, who is set to stand trial in May for turning a pipeline valve in Minnesota. "The theory being that if everyone just acted on what they believed in, it would be anarchy." That theory is now gaining some traction in Washington.
         But policymakers are sharpening their knives on the state level, too. Late last year, the conservative American Legislative Exchange Council drafted model legislation calling for severe punishments for anyone caught trespassing on or tampering with an oil, gas or chemical factory. The Critical Infrastructure Protection Act even includes a clause that any "conspirator" organization would be fined 10 times more than a trespasser, opening the door to crippling penalties for environmental groups.
         There are already laws in place to send environmentalists who tamper with fossil fuel infrastructure to jail, as Foster's case demonstrates. But if conservative lawmakers get their way, new laws could undermine the environmental movement — just as scientists say the humans are running out of time to make the changes needed to stave off the worst effects of climate change....
         ... While industry groups quietly work to lay sharper legal snares for environmentalists, people like Johnston, the woman who turned a pipeline valve in Minnesota, are fighting to reshape the narrative over fossil fuel sabotage in court. In October, a district court judge in Minnesota ruled that Johnston and her two co-defendants would be allowed to argue that the "necessity" of confronting climate change justified temporarily shutting down the pipeline.... Either way, Johnston said she is prepared to make an example of herself. "I'm not afraid to go to jail," she said. "I'm afraid of climate change."


       FILM PREMIER: "The Reluctant Radical"   (77 min.)
    by Lindsey Grazel, February 16-25, 2018

    Big Sky Documentary Film Festival (Missoula, Montana)

    The "reluctant radical" is Ken Ward, Washington state 'valve turner'. The film assembles in-action (as well as domestic) sequences of Ken in and leading up to two nationally reported climate direct actions: the valve turning and the previous "Lobster Boat" blockade of a coal tanker.

    3-minute trailer

    UCC REVIEW: A Documentary for Churches to Screen
    MOVIE REVIEW by Terrence Gallagher on United Church of Christ national website, 2 March 2018

    EXCERPTS: A new documentary called "The Reluctant Radical" offers congregations an opportunity to reflect and discern how God is calling them to act. The movie follows the life path of Ken Ward, a long-time environmentalist and activist as he wrestles with what life choices should he make and what direct actions should he take in response to the greatest crisis that human civilization has ever faced: Climate Change....

    Excerpt continues: ... With the recent news that despite the Paris Agreement, carbon pollution continues to increase amid signs of escalating global devastation and human suffering, perhaps it's time for us, The Church, to wrestle with similar decisions. Viewing the "The Reluctant Radical" in our faith communities may just create that opportunity. As Ward observes, "Direct Action creates opportunities of moral clarity."
         Prayer: God of us all, help us to walk humbly with you to do justice with loving kindness in the saving of your Creation. Help us to do this soon dear God, while there's yet still time, Amen.

    HOST A SCREENING at your church   •   Advance to 7 May 2018 film screening panel Q&A in Eugene OR.

    SERMON: "Taking Action to Save the World", by Rev. Tom Martinez, senior minister at Desert Palm UCC, Tempe AZ, 24 February 2018. Editor's note: This sermon (text online) was inspired by the film, "Reluctant Radical."

    EXCERPTS: I know some of you have been out in the streets marching with the scientists so I'm obviously preaching to the choir here. But the larger issue has to do with whether we can wake up our society on a collective, "me too" scale, in time to stave off major catastrophe. And the verdict on that is still out. This is the larger question artfully taken up by the film. At one point during his trial Ken's attorney wants to submit a chart as evidence for the kinds of catastrophic impact anticipated by the scientific community as a result of climate change. The prosecutor objects that it's speculation. Ken's lawyer points out that the people doing the "speculating" are NASA scientists. The judge allowed.
         It is such a fascinating moment and one that feels emblematic of where we are — not just as a society and a civilization but as a species. We are trying to find the courage to take stock of what is really going on.... As Christians at the dawn of the 21st century, our challenge is to see that creation itself is being crucified. What are we going to tell our grandchildren about what we did when the world teetered on the edge?


      
    VIDEO: 2-minute "Valve Turners" clip
    on Indiegogo

    Fundraiser for feature length film
    March 2018
    _____

    Steve Liptay: Director, producer, and cinematographer
    Matthew Sanchez: Editor and producer
    Alex Tyson: Cinematographer
    Martin Crane: Original music

    EXCERPT: Michael Foster, February 2018, beginning year-long prison sentence at North Dakota State Penitentiary speaks via phone to valve turner team, saying ...

    "I feel like I chose to be here — which is totally different from everybody else in this place. In the meantime, I'm really more worried about what's happening on the outside, and whether anybody is going to be able to figure out how to throw themselves into this fight wholeheartedly to turn this thing around, right now.

    I think I hear some keys. So, I love you guys, and I'll see you in a year."


    ** "Washington Court Issues Written Decision Allowing Necessity Defense", by Climate Defense Project, 18 March 2018

    FULL TEXT: In a big step forward for the climate necessity defense, a Washington trial court has issued a written decision allowing a defendant to assert the defense against charges stemming from a protest against the transportation of dangerous fossil fuels. In 2016, Reverend George Taylor participated in an action by Veterans for Peace and Raging Grannies to block BNSF tracks in Spokane, Washington that are used to transport coal and oil. Judge Debra of the Spokane District Court had previously signaled that she would allow Mr. Taylor, who plans to go to trial next month, to present evidence, including expert witnesses, about the dangers of climate change, the fossil fuel industry's influence over the political system, and the need for civil disobedience to address the climate crisis. Her written findings emphasize a defendant's constitutional right to make such arguments in court — an important precedent for the many climate necessity defenses ongoing across the country. Climate Defense Project continues to lead and support such efforts. You can find the full written decision here: State of Washington v. George E. Taylor.


    AUDIO: "Protecting the Living Earth: An Interview with Leonard Higgins", Joanna Harcourt-Smith (host), 9 March 2018, Future Primitive Podcast • Q&A topics by timecodes:

    02:44 - Impetus for action (1) my two youngest children and (2) Joanna Macy workshop Leonard attended in 2007
    04:25 - Personal journey of worldview shift: "climate change and its risks to civilization"
    07:25 - Specifics on the pipeline shut-down action and the judicial aftermath
    13:05 - Q: How do your children feel about your future?
    14:42 - Leonard's "state of mind" in shutting down the pipeline
    19:27 - Specifics on the arrest charges
    20:22 - Lessons from Joanna Macy that Leonard embodied in his action and carries forward throughout the judicial process
    27:19 - Unfairness of the judge prohibiting Leonard from speaking to the jury of his "intent" for action
    30:29 - His experience at Standing Rock prior to the shut-it-down action in Montana
    35:31 - Leonard's strongest outreach ability is his deep concern for the future, as a parent and grandparent
    37:44 - Q: What is your sense of "human dignity"?
    39:27 - Q: In closing, could you offer a statement of hope?

    Editor's note: Topics at timecodes 14:42 and 30:29 appear uniquely in this interview.


      
    "Montana judge orders restitution but no jail time
    for climate activist who shut off pipeline valve"

    by Karl Puckett

    20 March 2018

    Great Falls Tribune


    Photo left: Judge Boucher speaks to Leonard Higgins.
    Courtesy of Great Falls Tribune

    EXCERPTS: A district judge ordered a Portland man to pay $3,755 in restitution to the operator of a Montana oil pipeline for damage caused when he turned off a pipeline valve as part of a four-state effort to bring awareness to climate change. The prosecutor had asked for $25,630 in restitution.
         "I'm really grateful to the judge," Leonard Higgins said as he left the courtroom Tuesday afternoon. "I think it was a fair decision." Higgins said he had come to Montana prepared to serve jail time.
         In explaining his sentence, District Judge Daniel Boucher noted it was Higgins' first felony offense, and nonviolent. He added that Higgins didn't personally gain from what he did. The judge also considered the age of Higgins, who is 65. Boucher also imposed a three-year deferred jail sentence that doesn't need to be served as long as Higgins meets its conditions....
         "We need to send a message this individual was wrong," Chouteau County Attorney Steve Gannon argued before the sentence was imposed, adding he thought Higgins was a nice guy but still committed a crime. Gannon had asked for a 10-year jail sentence for a felony criminal mischief charge, with all of it suspended except 60 days....
         "His motives were not selfish but selfless," said Lauren Regan, an attorney with Civil Liberties Defense Center in Eugene, Ore., and one of Higgins' attorneys. She thanked the court. "We know it's not every day a district court is asked to engage in a political trial like this," Regan said. Change in how society views major issues of the day often begins in lower courts, she said, citing the Scopes trial in 1925 involving the teaching of evolution in public schools and the Roe v. Wade case on the legality of abortion. "We must recognize that civil disobedience in various forms, used without violent acts used against others, is ingrained in our society," Regan said....
         Regan is representing all of the people charged in the four states. Two of the cases are on appeal, she said. A trial is scheduled this summer in Minnesota in which the "necessity defense" will be made, she said.
         Higgins acknowledged the damage he caused in a statement he read as he stood before the judge. The facts of climate science drove him to cross the line into nonviolent activism, he said. "There's too much that's precious in this life to give up without a fight," said Higgins, his voice cracking with emotion.
    "No prison time for Corvallis valve turner", by Bennett Hall, 20 March 2018, Corvallis (OR) Gazette-Times
    EXCERPTS: Former Corvallis resident Leonard Higgins won't do any time behind bars for participating in the "valve turner" protests. Higgins, 66, could have faced up to 10 years in prison for his role in the coordinated climate change action, which briefly shut down five transnational oil pipelines in four U.S. states on Oct. 11, 2016. Instead, Montana District Court Judge Daniel Boucher on Tuesday handed down a three-year deferred sentence with probation. He also ordered Higgins to pay $3,755.47 in restitution for damage caused when he broke into a fenced enclosure in a remote area near the town of Coal Banks Landing and closed an emergency shutoff valve on the Spectra Express pipeline....
         Reached by phone shortly after his sentence was handed down, Higgins said he was surprised and a little bewildered to find himself still a free man. "I was very relieved," he said. "I showed up to court today with only the things I was planning to take into jail with me — a little money for the commissary, my driver's license and my insurance card." ...
         His attorneys are planning to file two appeals, one on the grounds that the restitution was set too high and the other arguing that he should be allowed to present a necessity defense. Either appeal, if successful, would result in a new trial, although Montana law would protect Higgins from receiving a harsher sentence.
         "We can't get a worse result, but we can get a better result," said lead attorney Herman Watson IV, who practices with the Watson Law Office in Bozeman, Montana. But that's not really the point, he added. The main objective is to give Higgins another chance to persuade a jury of the imminent dangers posed by climate change.
         "Leonard's an activist," Watson said. "He puts his liberty at risk for a cause he believes in. The longer this goes on, the more people he'll reach — and that's really his goal."
         Higgins said he had no regrets about his actions, even though they could have landed him in prison, and he will continue to devote himself to climate change activism. "I did what I did to do everything I can to try and guarantee that my kid and grandkids — and other people's kids and grandkids — will have a livable future," he said....
         Climate activist Leonard Higgins' co-defendant, Reed Ingalls, is still awaiting trial in Chouteau County, Montana. Ingalls, who videotaped and live-streamed Higgins' efforts to turn off the Express Pipeline, is charged with one misdemeanor count of criminal trespass and one felony count of criminal mischief. Ingalls faces up to 10 years in prison on the criminal mischief charge. Now that Higgins has been sentenced, a date will be set for Ingalls' trial.
    "Montana Pipeline Protester Avoids Jail, Must Pay Restitution", by Matthew Brown (Associated Press), 20 March 2018, published in US News & World Report. (Also published in Billings Gazette")
    EXCERPTS: ... Activists simultaneously targeted other pipelines in Washington state, North Dakota and Minnesota, using civil disobedience to urge a halt to the use of tar sands crude — the most carbon-intensive, climate damaging form of oil....
         During his trial last year, Higgins was blocked by Boucher from arguing in court that his act of civil disobedience was necessary because climate change is an emergency that cannot be ignored. His record will be cleared of the felony criminal mischief conviction if he doesn't violate the terms of Tuesday's sentence, such as by committing another offense....
    "Activist Who Shut Off MT Pipeline Not Sentenced to Jail Time", by Eric Tegethoff, 21 March 2018, Public News Service
    EXCERPTS: ... Speaking Monday before his sentencing, Higgins remained steadfast that it will take every kind of effort to stop climate change. "I hope that our action encourages people to step out of their denial, to step out of the complacency and distractions of everyday life and realize that their kids' future and the life on our planet is in jeopardy and that we need to act," Higgins said....
         Lauren Regan, Higgins' attorney and executive director of the Civil Liberties Defense Center, commended the court for recognizing Higgins' action as a conscientious act of civil disobedience. She said it's also a win for free speech. "When we see courts really slamming activism and sending people to jail for a long time, that tends to have a chilling effect on people's willingness to engage in civil disobedience and related direct action," Regan said.
         Higgins said he's encouraged by the increasing number of people he sees who are compelled to act. "Really facing the crisis and working together, it brings out the best in people," he said. "And I've never felt more connected and in community than I have since 2012 when I began doing this work."
    "Oil Pipeline 'Valve Turner' Gets Three Year Deferred Sentence", by Peter Christian, 20 March 2018, NewsTalk KGVO Radio
    EXCERPTS: ... Higgins was sentenced on Tuesday afternoon in Fort Benton, and could have received a 10 years in prison. Fellow 'valve-turner' Annette Klapstein relayed the verdict.
         "The sentence the judge gave him was a deferred sentence three years, and he will be on probation," said Klapstein. "That means after three years, assuming he complies with the terms of his probation, he would have the felony removed from his record. The judge said because he didn't do it for personal gain and out of a deep personal conviction, that he was 66 and should have the chance to clear his record."
         Klapstein explained why she, Higgins, and several others committed their criminal acts. "We're all climate activists, and we're terribly concerned for our children and grandchildren," she said. "We're already in a climate emergency and if we don't turn things around very rapidly our children stand no chance whatsoever of living in a habitable world."
         Klapstein also referenced the massive wildfires that have plagued the West for the last several years, and that tar sands oil is the worst offender in the northwest. "Tar sands oil specifically is the worst of the worst," she said. "They are massively carbon intensive, they've already destroyed many, many miles of indigenous people's lands, their water is poisoned and they're getting cancer. The only way to get their attention is to shut off the flow of oil and hit them in the pocketbook."
         Klapstein is a retired attorney who shut off a pipeline in Minnesota and is facing up to 22 years in prison and fines of up to $46,000.
    "'Environmental Extremism' or Necessary Response to Climate Emergency? Pipeline Shutdown Trials Pit Activists Against the Oil Industry", by Alleen Brown, 21 March 2018, The Intercept
    EXCERPTS: AN ACTIVIST IN Montana was sentenced on Tuesday in a case that has become both a touchstone for industry-friendly legislators pushing to increase penalties for pipeline protest and a measure of the U.S. legal system's ability to recognize the emergency presented by climate change. On October 11, 2016, while the Dakota Access pipeline protests were in full force, climate activists approached above-ground valve sites on five tar sands pipelines in Minnesota, Montana, North Dakota, and Washington state. After calling the pipeline companies to give warning, they turned the valve wheels in a coordinated attempt to stop the flow of tar sands oil.
         Tuesday's sentencing hearing tested a Montana court's willingness to apply the severe penalties already available for use against pipeline protesters. For halting the flow of oil through Enbridge's Express pipeline for several hours, Leonard Higgins, a 66-year-old retired information technology manager for the state of Oregon, faced a maximum sentence of 10 years in prison and a $50,000 fine for charges of misdemeanor trespass and felony criminal mischief. Higgins was sentenced to three years' probation and $3,755 in restitution to the pipeline company.
         "I'm relieved and actually a bit bewildered. It's unexpected to me. I came very much prepared and expecting to do some jail time at least," Higgins told The Intercept. "This is a case where both in terms of the severity of the charges and the large amount of claimed damages, I think they were using it to chill the possibility that others might do similar protest."
         Enbridge had initially claimed more than $200,000 in losses, a figure later reduced to $25,630, including $16,000 worth of replacement chains to secure valves along the pipeline against future tampering.
         "The courts and the juries are not hammering individuals in the way these corporations would like to see, so they attempt to use the restitution process to grossly inflate their damage numbers with hope that threatening the citizen with $200,000 might chill others from committing similar acts, said Lauren Regan, Higgins's attorney....
         Although the sentence is lenient in light of the possible penalties Higgins faced, it does not represent a full win for the activists. Higgins's legal team had hoped Judge Daniel Boucher would allow them to argue that, given the severity of the climate threat, he had no choice but to act — a strategy known as a necessity defense. But Boucher said that since Higgins appeared to fear harm to his children and grandchildren, rather than an imminent threat to his own life, the defense could not apply. In his denial, Boucher wrote, "The energy policy of the United States is not on trial, nor will this court allow Higgins to attempt to put it on trial."
         Since a goal of the valve action was to set legal precedent for future climate protesters, Higgins's legal team plans to appeal the denial, demanding a retrial. The move would not open the door to a more severe sentence. Judges assigned to valve turner cases in North Dakota and Washington also rejected the necessity defense, and the activists' legal teams are also appealing.
         The valve turners' best chance lies in Minnesota, where a judge has made the unusual decision to allow the necessity defense to be used at trial. Emily Johnston and Annette Klapstein are facing felonies in the state for shutting down Enbridge Lines 4 and 67. Steve Liptay, who filmed their actions, and Ben Joldersma, who provided additional support, also face charges. The four activists have to prove 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." Enbridge is appealing the judge's decision.
         Higgins said that if he had any regret about his effort to disrupt the Montana pipeline, it would be that he failed to anticipate that those filming would face charges alongside those turning the valves. Reed Ingalls, a 23-year-old student at Evergreen College, who livestreamed Higgins's action, still faces trespassing and criminal mischief charges. "I wish we had not been so naïve as to think the journalists and folks doing the livestreaming would be protected by the First Amendment and would not be arrested," Higgins said. Sam Jessup, a 32-year-old carpenter from Vermont, recently received a suspended two-year sentence, to be served as probation, for livestreaming the valve action on the Keystone pipeline in North Dakota.
         "The act itself was out of a sense of desperation that we don't have time for incremental change, Higgins told The Intercept. It's possible we already squandered the chance we had. We're walking right along the edge of the cliff."
    "No Jail Time for Climate Activist Who Shut Off Tar Sands Pipeline to Prevent Climate Harms", press release by Stephen Kent in behalf of Shut It Down — Climate Direct Action, 21 March 2018, Common Dreams
    EXCERPTS: "His motivations were not selfish, but selfless," said defense attorney Lauren C. Regan, one of Higgins' defense attorneys and the founder and executive director of The Civil Liberties Defense Center, in her statement before the court. "He attempted to act out of the public interest, not to harm anyone. He was in Chouteau County to try and prevent catastrophic climate change that will eventually affect the good people of this county just as it is already impacting island nations, the Arctic, and coastal regions around the globe."
         "This is not a crime for which he received any benefit," said presiding Judge Daniel Boucher. "He should have this removed from his record."
         In Higgins' statement to the court, he expressed respect for the court and the authority of the judge, and took responsibility for trespassing, cutting two chains to enter the pipeline enclosure, and accidentally damaging a metal plate on an electric motor in his act of civil disobedience. He pointed out that his was an act of conscience. "The facts of climate science, the tragic impacts of changes already under way, and the negligence of government in responding drove me across the line from a public employee to someone who would consider civil disobedience," Higgins said. "There is strong evidence that we may have already crossed this line. Today I'm here in part because of my faith in the courts, in humanity and in the law. I say this not to ask for leniency from the court but to ask to stand here and take responsibility for the actions which I have taken."
         Higgins and his attorneys signaled that they planned to appeal his conviction, because he was not permitted to mount a "necessity defense," which would have argued that his action was necessary and justified in order to prevent climate harms much worse than the consequences of trespassing and interfering with the pipeline. Granting necessity defense would have allowed the defense to call expert witnesses and present evidence on climate change and the climate harms done by tar sands. Before trial Higgins' defense team petitioned Chouteau County District Court and the Montana Supreme Court to allow it to mount such a defense, but both petitions were denied without hearing.
         "I appreciate the chance to present the intent of my action more fully than I was able to at my trial," Higgins said yesterday, a reference to the fact that the jury was not permitted to hear evidence pertaining to climate change. "I look forward to appealing to the court for my 6th Amendment right of a full defense to present my case again with the full scope of information available," he said.
         "It is highly likely we will file notice of appeal to challenge denial of necessity defense," said Regan. "But for that denial, we may not have even been here today. There could have been a very different outcome [in] the jury's deliberations if they had been allowed to use necessity defense in their decision making process."
    "Portland 'Valve Turner' Leonard Higgins spared prison", by Emily Green, 30 March 2018, Street Roots News (Portland)
    EXCERPTS: ... Higgins, a retired state IT manager and lifelong Oregonian, said he arrived in court with nothing more than his driver's license, his insurance card and some cash for commissary in his pockets, expecting he would be going to jail for anywhere from 30 days to several years. "I'm finally starting to wrap my arms around the fact that I'm not in jail," he told Street Roots as he traveled by train to Eugene three days after his sentencing hearing. The presiding judge, Daniel Bouche, was not available for comment. However Higgins' fellow activist and accomplice Ken Ward reported live from the courthouse via social media that Bouche said he handed down a light sentence because the crime was nonviolent in nature, and Higgins had no prior criminal record.
         ... If the necessity defense works in either of these cases [Minnesota valve turner or Spokane track sitting], Higgins said, it would set a "huge precedent" for climate activists.
         "It not only makes it more likely that activists are going to be able to use that defense and prevail with that defense in court; it also makes the activists who consider civil disobedience feel safer in taking the action," he said. "I think it also undermines the repressive legislation that's being proposed and passed in some states trying to equate pipeline or other kinds of fossil fuel infrastructure protest with terrorism."
         ... Higgins' attorneys have filed an appeal in his case, primarily based on the judge's denial of the necessity defense. He said that while the sentence will influence his approach to climate activism moving forward, "because we have so little time to respond and have a chance of avoiding the worst, it won't rule out civil disobedience."


       Guest Opinion: "Don't Do It, Crow Wing County", by Winona LaDuke, 26 March 2018, Brainerd Dispatch, Minnesota.

    EXCERPTS: ... The Water Protector Legal Collective reports 854 people were arrested. These people, not unlike the valve turners, were and are teachers, librarians, doctors, movie stars, veterans, priests, and politicians. They are like us. And all of us, know that this is the time we have to protect our water.
         Minnesota does not have to be North Dakota. In fact, it does not have to approve the permit for the pipeline: Minnesota's own Department of Commerce (DOC) declared last fall that Line 3 wasn't needed on solid economic and environmental grounds. What more does the decision-making process of this state's Public Utilities Commission need in June other than to just follow the DOC's direction?

    PHOTO: Minnesota Valve turner Annette Klapstein with Winona LaDuke.

    Winona LaDuke is the co-founder and Executive Director of Honor The Earth, a Minnesota-based environmental justice organization led by indigenous women, dedicated to protecting indigenous homelands and resources, and empowering communities with energy independence through renewables.


    •*** "The Climate Made Me Do It: The necessity defense is the holy grail of climate action", by Heather Smith, 29 March 2018, Sierra Magazine

    Editor's note: Four of the five valve turners were mentioned in this article: Ken Ward, Michael Foster, Emily Johnston, and Annette Klapstein. The article quotes acquitted defendants in the 13-person West Roxbury (MA) court case. However, because Judge Mary Ann Driscoll downscaled the case last minute from criminal to civil, the jury trial was cancelled, so it was not a full necessity defense case. Final two paras:

    EXCERPTS: ... In the end, the judge gave each of the 13 two minutes to explain why they had tried to stop the gas pipeline through Boston. "I study and teach music that goes back hundreds of years," Warren Senders said, recapping his testimony outside the courthouse. "When I teach a song that's 400 years old, it's with the understanding that 400 years from now someone will be singing that same song. I'm in the middle of a chain of transmission. That distribution of human wisdom across centuries that is one of the great creations of our civilization — a method for people to talk with and communicate with their ancestors and their descendants. And that's put at risk by climate change."
         After the testimonies, Judge Mary Ann Driscoll of West Roxbury District Court, found all 13 defendants "not responsible," the equivalent of "not guilty" in a criminal case. At the press conference after the verdict, DeChristopher at least made it clear he was ready for another go-around. "We were able to make a case that was compelling enough for that judge," said DeChristopher, "and hopefully the next time around we'll get the opportunity to do that with a jury. It's the first time I've won a necessity defense, so I'm excited. Even if it wasn't quite the trial I wanted. It's a good first step, and we'll keep fighting."

    Click to access the 31-minute AUDIO of the Roxbury court proceedings, which includes moving short statements by the defendants as to why each felt direct action was necessary.


    •** "What Is the Necessity Defense, and What Are Its Limits?", by Michael Mayer, 29 March 2018, Sightline Institute (website). EDITOR'S NOTE: Three of the valve turner cases (WA, ND, MN) are mentioned in this background report. Here you will also find crucial reading for understanding the Pacific Northwest context of direct action climate activism, along with basic education on the "necessity defense."

       PHOTOS LEFT: The "Delta 5" in Seattle; Tarika Powell, attorney for defendants in the Tacoma LNG direct action

    EXCERPTS: ... In 2016, Veterans for Peace and the Raging Grannies, among others, blocked trains carrying fossil fuels in Spokane.  That same year, Ken Ward shut off a pipeline near Anacortes delivering tar sands oil to the U.S. from Canada as part of a coordinated effort across four states by a group now known as the Valve Turners. In 2017, Stephen Way and Carlo Voli kayaked to Puget Sound Energy's site for a liquefied natural gas (or LNG) facility in Tacoma and locked themselves to construction equipment.
         ... At first glance, these requirements seem tailor made for a dedicated climate activist.  Is there any greater harm than the ongoing, planet-altering threat of climate change?  After decades of political inaction at the federal level (and at best underwhelming action at the state level), what reasonable alternatives are there?  This should be easy, right?
         ... Generally, it is the jury that determines whether a defendant is found guilty of a crime.  But a judge plays a critical gatekeeping role, deciding what issues that a jury is permitted to consider at all.  So in order for the jury to have the option of applying a necessity defense, a judge must be satisfied that there exists a minimum threshold of supporting evidence.  In other words, is it plausible that the defendant will satisfy the four requirements listed above?

    EXCERPTS continue below ...


         ... In two other climate prosecutions, one involving Ken Ward in Skagit County, Washington and another involving Seattle resident Michael Foster (a fellow Valve Turner) in North Dakota, the judges rejected the necessity defense based, in part, on the same reasoning as in Snohomish County.  However, those two courts did so at Step 1, denying the defendants the chance to present any evidence to the jury in support of the defense. This "reasonable alternatives" rationale may strike you as perverse.  The very reason that the activists took such desperate measures is the long-standing failure of the political branches to respond to pressure from activists.  Before railing against the result, however, it is worth considering the nature of the necessity defense and civil disobedience itself.
         ... After his conviction, Ken Ward stated, "(You) put your body on the line as a means of demonstrating that there are at least a core of people who believe so strongly in the quality of the problem that we're willing — if need be — to go to jail to try to stop it."  Abby Brockway similarly wrote, "I am prepared to face the legal consequences of my actions. The cost is worth paying."
         ... Still, the goal of civil disobedience to prompt reform can be enhanced by the courts liberally interpreting Step 1 when considering the necessity defense in climate prosecutions.  Allowing protesters to present evidence of necessity at trial provides a forum for elevating the issues that motivated their actions, even if in the end the jury is prohibited from applying the defense. Consider the sentiments of the judge who ultimately denied the use of the necessity defense for the Delta 5, stating in court that they were "tireless advocates of the kind that we need more of in this society."  Although the Delta 5 were found guilty of trespass, the extensive media coverage of the trial included the sympathetic reaction of the jurors, some going so far as to express interest in joining the climate movement as they literally embraced two of the defendants.
        Other courts have been receptive to this approach, too.  In a case involving Valve Turners in Minnesota, the judge decided late last year at Step 1 to permit the defendants to present evidence at trial in support of a necessity defense, as did the judge in Spokane overseeing the trial of protesters who blocked rail lines there.  (The Minnesota decision is currently on appeal.)  Even more recently, Sightline appeared at a pre-trial hearing to support the Tacoma LNG protestors' effort to assert the necessity defense as part of the court's Step 1 decision....

    Michael Mayer practiced environmental law in the Northwest for close to a decade and now teaches climate change law at Seattle University School of Law.


    AUDIO: Leonard Higgins and Annette Klapstein radio/podcast interview, with host Ed Fallon, 2 April 2018.

    02:03 - Valve Turners actions introduced
    03:43 - 13:18 Leonard Higgins interview
    17:00 - 29:20 Annette Klapstein interview


    "It's time to think seriously about cutting off the supply of fossil fuels", by David Roberts, 3 April 2018, Vox (website).

    EXCERPTS: There is a bias in climate policy shared by analysts, politicians, and pundits across the political spectrum so common it is rarely remarked upon. To put it bluntly: Nobody, at least nobody in power, wants to restrict the supply of fossil fuels. Policies that choke off fossil fuels at their origin — shutting down mines and wells; banning new ones; opting against new pipelines, refineries, and export terminals — have been embraced by climate activists, picking up steam with the Keystone pipeline protests and the recent direct action of the Valve Turners.
         But they are looked upon with some disdain by the climate intelligentsia, who are united in their belief that such strategies are economically suboptimal and politically counterproductive. Now a pair of economists has offered a cogent argument that the activists are onto something — that restrictive supply-side (RSS) climate policies have unique economic and political benefits and deserve a place alongside carbon prices and renewable energy supports in the climate policy toolkit....

    Editor's note: The academic paper grounding this article was published 12 March 2018 in the journal Climatic Change: "Cutting with both arms of the scissors: The economic and political case for restrictive supply-side climate policies", by Fergus Green and Richard Denniss. The news summary and analysis by David Roberts highlights 3 economic benefits and 3 political benefits for shifting climate activism policy focus away from the long-accepted consumer demand category (e.g., carbon taxes plus renewables incentives) and toward policies that would directly cut back fossil fuel production. Roberts advocates, "It's time to apologize to activists and make fossil fuel supply restrictions part of the climate policy toolkit."


    •** "Sometimes Fighting Climate Change Means Breaking the Law", by Carolyn Kormann, 3 April 2018, The New Yorker

    EXCERPTS: ...Meanwhile, climate-change activists in Minnesota and Washington State are preparing necessity defenses of their own. "In the beginning, you really didn't have legal standing to challenge environmental matters," Patrick Shea said. "But the wonderful thing about common law is that judges can begin to architect changes in it that reflect increasing scientific knowledge...."

    Editor's note: This short article features the West Roxbury case, including extensive quotes by Marla Marcum and Tim DeChristopher of the Climate Disobedience Center. It also puts this Boston area, gas pipeline action in the larger contexts of "necessity defense" and "jury nullification". A moving and educational introduction to the legal and moral aspects of jury nullification is an op-ed written by Kathleen Dean Moore, published in Duluth News Tribune, 2 March 2018, titled, "Jurors can be heroes, too; follow consciences rather than law".


       FILM PREMIER in Pennsylvania: "Valve Turners"
    Director: Steve Liptay, 8 April 2018   (10 min.)

    More afraid of climate change than they are of prison, the true story of a team of activists who take direct action to disrupt major pipelines carrying controversial tar sands oils from Canada into the United States.

    Both films on valve turners at Princeton Film Festival. Editor's note: The April 8-15 festival in Princeton NJ is the first to be showing both "Valve Turners" (by Steve Liptay) and "The Reluctant Radical" (by Lindsey Grazel) at the same film festival.


    "We Have to Stop Pretending That Solving Climate Change is Complicated", by Emily Johnston, Other 98, 16 April 2018 (2,400 words)

    EXCERPTS: ... The transition will involve some inconvenience — that part is true. But what's also true is that we know how to do it, it's well within our powers, and it doesn't have to make our lives worse. In fact, we know that it will make our lives better in daily, palpable ways.... The world has had a glimpse in recent days of what the necessary courage looks like: the willingness to be vulnerable, the unwillingness to be anything but completely real about what the price of failure is. That has to be our model. For far too long, incrementalism and "political reality" have constrained what we thought was possible; if we keep letting them, all hope is lost. Because the biggest problem we have right now isn't carbon — we know what to do about carbon. Our biggest problem is our failure to believe we can build the beautiful world that's genuinely in reach....


    •** "Proposed Minnesota law aims to crack down on protesters, but protesters are protesting", by Grace Pastoor, InForum (North Dakota), 17 April 2018

    EXCERPTS: ... "As the Minnesota Public Utilities Commission prepares to vote this June on Enbridge Energy Co.'s controversial Line 3 replacement project, Northland lawmakers are pushing for legislation that would crack down on those who train or recruit protesters who damage "critical infrastructure" such as oil pipelines. However, those against the law fear that it would intimidate would-be activists and squash peaceful protests.... In October 2016, environmental activists Emily Johnston and Annette Klapstein were arrested and charged with felonies after tampering with pipeline valves owned by Canadian energy company Enbridge at Clearbrook. Two other activists were also arrested and charged, though Johnston and Klapstein say they were the ones who used bolt cutters to cut padlocks and chains at the facility....


    "It's Earth Day. Here's What to Watch", by Erik Henriksen, Portland Mercury, 18 April 2018

    EXCERPTS (highlighting KEN WARD QUOTATIONS in the film): ... As the centerpiece of the Portland EcoFilm Festival's "Earth Day Film Weekend" at the Hollywood Theatre, The Reluctant Radical will screen with its filmmakers and Ward in attendance (Sat April 21)....
         "Climate change is just dealt with as if it were any other discrete environmental issue.... But what we're talking about is the end of the conditions that make civilization possible — happening, right now, on our watch," says Ken Ward. As he talks, he's rowing a boat up the Willamette, preparing to protest against the Fennica — the Shell Oil icebreaker that, in 2015, inspired Greenpeace protesters to suspend themselves from the St. Johns Bridge.
         "If anybody is around to write the history of how we did such a foolish thing to ourselves, I think that they're gonna pick this point as being a single act of insanity," Ward continues. "We've just warmed the earth enough to melt the arctic, and what do we do? We don't stop doing that. We go up and use the fact that it's ice-free to drill for more. It's just insane."
         Ward is the focus of The Reluctant Radical, which follows the Oregon activist as he stages contentious protest after contentious protest — sometimes alone, sometimes with others, sometimes supported by his family, sometimes dressed as Santa, sometimes ending up in jail. He doesn't see his decades-long, single-minded determination as a choice: "I'm doing this because the world as I know it is ending," he says. "It's the only thing I can see that might work. I don't want to be doing this, but when I start thinking up excuses, the thing that I end up thinking about is my boy. Then it just makes it easier to go, 'Well, I'm obligated to do what I can.'"


       Editor's Note: UPDATE ON PROSECUTION ATTEMPTS TO BLOCK NECESSITY DEFENSE JURY TRIALS: In late March 2018, the prosecution "won" in its attempt to block a jury trial of the West Roxbury direct action defendants by having the case downgraded from criminal to civil. The judge partially compensated by allowing each defendant to speak for 2 minutes in civil court on their motivations for the civil disobedience. (Listen to the AUDIO OF WEST ROXBURY STATEMENTS on the Climate Disobedience Center website.) Prosecution immediate appeals against the granting of necessity defenses are followed by prosecution tactics to evoke additional trial delays when the ND blocking appeals fail have now been demonstrated in both the VALVE TURNER Minnesota case and (following) in the Spokane coal train blockade case.

    •** "An elderly pastor broke the law to save the climate. Eventually he'll make his case to the jury", by Mitch Ryals, Inlander (Spokane), 19 April 2018

    EXCERPT: ... [Rev. George] Taylor's trial was set to begin April 23, but Spokane prosecutors appealed [Judge] Hayes' decision to allow the necessity defense, prolonging the 2-year-old misdemeanor trespassing case even further, and catching one of Taylor's defense attorneys by surprise."It's frustrating for everybody because this case has gone on for a long time," says attorney Rachael Osborn, who is known for her environmental work. "Prosecutors do things like this to try to prevent getting to the merits of the case."


    AUDIO + TRANSCRIPT: "Valve-Turning Protestors", by Public Radio "Living on Earth", 20 April 2018, 10-minute interview by Steve Curwood of Michelle Nijhuis re her New York Times Magazine article on the Valve Turners (13 February 2018).


       •** "Appeals court allows necessity defense in pipeline protest", by Steve Karnowski, Associated Press, 23 April 2018. Also in Washington Post, Flathead Beacon, Wisconsin Gazette, New York Times

    •** "Appeals court allows unusual 'necessity' defense for Enbridge protesters", by Rochelle Olson, Minneapolis Star Tribune, 23 April 2018

    •** "Appeals court rejects necessity defense objection in pipeline protest case", by Grace Pastoor, Bemidji Pioneer (Minnesota), 23 April 2018. Also in Duluth News

    •** "Judge Grants Oil Pipeline Protesters Use of Necessity Defense", by Dionne Cordell-Whitney, Courthouse News, 23 April 2018

    •** "Minnesota court says activists can use climate change as a defense in trial", by Natasha Geiling, Think Progress, 23 April 2018. Also in Resilience.

    •** "Minnesota Court of Appeals Allows Groundbreaking Climate Necessity Case to Proceed", by Ted Hamilton, Climate Defense Project, 23 April 2018. Includes link to the Court of Appeals OPINION.

    •** "State Appeals Court Rules Valve Turners Can Proceed With Necessity Defense for Pipeline Protest", by Jessica Corbett, Common Dreams, 24 April 2018.

    PRESS RELEASE by Shut-It-Down Direct Action, on the above Appeals Court Decision, includes these quotations:

    • EMILY JOHNSTON: "I'm very happy about this decision. If we get to present a necessity defense trial, and the jury has to grapple with full knowledge of our shared reality, the jig is up for the fossil fuel industry, and the end of their devastating business model comes into much clearer view. I think they'll do everything they can to prevent that. But we're doing our best to stand up for a lot of vulnerable people, and we need our day in court."

    • ANNETTE KLAPSTEIN: "The Minnesota Court of Appeals has upheld our right to present a full defense to a Minnesota jury, including the facts of the ongoing climate catastrophe caused largely by the fossil fuel industry. As a retired attorney, I am encouraged to see that courts across the country seem increasingly willing to allow the necessity defense in climate cases. I believe that many judges are aware that our political system has proven itself disastrously unwilling to deal with the catastrophic crisis of climate change, which leaves as our only recourse the actions of ordinary citizens like ourselves, and the courts and juries of our peers that stand in judgment of those actions."


    "Oil, Water and the Judges", by Winona LaDuke, 2 May 2018, The Circle (Native American News and Arts)

    EXCERPTS: The Husky Oil Refinery's catastrophic spill and fire in Superior, Wisc. on April 26th points to the problem of oil and water. With immense gratitude for the firefighters who extinguished the tar sands oil fire, we are alive....

    ... For Superior Mayor Jim Paine, the catastrophe of an Enbridge Oil explosion at the Husky Refinery was probably enough to jar his city and all of us into a dose of reality of not only that oil and water do not mix, but that we are in a dangerous time.
         The dangers of this time were also recognized by the Minnesota Court of Appeals in a landmark case of two women charged with turning the valves at Enbridge's Clearbrook facility and stopping the flow of oil. On April 23, hours before the Administrative Law Judge decision, the Minnesota Court of Appeals recognized the unusual 'necessity defense' case for the Water Protectors. Emily Johnston and Annette Klapstein shut of valves on October 11, 2016 as a part of a national coordinated effort by Climate Direct Action activists who shut down five pipelines carrying tar sands oil from Canada. Tar Sands oil is considered the dirtiest oil in the world.
         This is a moment in history. State agencies like the Department of Health, Commerce, the Administrative Law Judge, tribal governments and at least the 68,000 people have testified against Enbridge's Line 3 proposal. As Annette Klapstein and Emily Johnston courageously face felony charges for stopping the tar sands pipeline, it is indeed a time of necessary and courageous action.
         Water Protectors prepare to camp on the line in the l855 treaty territory. Over half the line is on public lands, where anyone can camp for up to two weeks at a time. Summer is the season of excellent camping in Minnesota, and for many of us 'necessary action'. In the meantime, Spring is here, full of promise after a brutal winter. Let us pray for our Gichi Gummi and those who live on her shores in Superior. And, let us be grateful for the water and life bestowed upon us.


     

       VIDEO: Valve Turners Q&A at 'The Reluctant Radical' Screening
    PANELISTS: Lindsey Grayzel (film producer, left), Ken Ward (subject of film), Leonard Higgins (Montana valve turner), and Lauren Regan (attorney for all 5 valve turners, 3rd left) at the Unitarian Universalist Church in Eugene OR, 7 May 2018 (45 minutes)
    00:55 Regan: 9 min summary of WA, ND, MT trials and upcoming MN trial

    10:25 Q1- What cities are on "The Reluctant Radical" film-screening tour?
    10:41 A1- Grayzel: various cities, but doing Skype participation in cities beyond Pac NW

    11:54 Ward asks for show-of-hands for "How many of you were at Break-Free?"

    12:07 Q2 - Mention of Plowshares Apr 4 action against militarization
    13:09 A2 - Ward: parallels with direct climate action: both are "potentially civilization busting"

    14:26 Q3 - (To Ward) - What are you doing next and how can we help?
    14:50 A4 - Ward: Top priority is supporting the upcoming MN trial, appeals, and VTs in prison

    15:45 Q4 - By "Our Children's Trust" youth plaintiff, Avery McRae (bottom left)
    16:25 A4 - Ward outlines history of his actions and that he "practiced" to feel calm during arrest

    18:17 Q5 - audience member sings a song about mothers
    18:58 A5 - Ward: His mother declined the invitation to be interviewed for the movie

    19:49 Q6 - How did you organize and find people to commit to direct action?
    20:05 A6 - Ward: "Leonard and I were the first two" in the Shut-It-Down group (short history)

    22:43 A6 - Higgins: "We had 3 basic criteria when we were looking for people to participate: (1) "They understood possible consequences and were good with that"; (2) "They would be willing to stay after the action and wait for arrest and go on to trial"; (3) "... folks that were thoroughly committed to nonviolence" (incl "prayerful nonviolence")

    23:36 A6 - Ward: fortunate to end up with "people who had a good sense of humor"

    23:42 Q7 - Could the outcome of an appeal yield an outcome worse than the original?
    23:59 A7 - Regan: "If the person is ultimately found guilty again, they can do no worse ..."
    24:28 A7 - Ward: "I could still be charged with sabotage" (re 2 hung juries on that)
    Ward & Regan: story on uniqueness with the "assemblage of saboteurs" initial charge

    25:47 Higgins: gratitude for Lauren and Cooper and CLDC
    26:04 Higgins: on arriving at sentencing "fully prepared to go to jail"

    26:58 Q8 - On youth action in Corvallis to paint a climate crisis mural by a gas station
    28:42 A8 - Higgins: on climate activists he knows in Corvallis

    29:22 Ward: 2-minute lesson on how political change actually happens

    31:22 Regan: CLDC "Next Generation Climate Action Camp" 2018 for youth

    33:02 Q9 - statement on historical power of corporations
    34:12 A9 - Ward: toward "a viable alternative for when things really begin to fall apart"

    37:43 - Grayzel: announcement of June 13 second showing of film in Eugene

    38:58 Q10 - Concern about "green" organizations lack passion on climate crisis
    40:09 A10 - Ward: personal history of attempts to make climate a green organizational priority

    42:30 Q11 - What will your next film be?
    42:45 A11 - Grayzel: audio documentary podcast of the Minnesota trial

    43:07 Q12 - Concern about fate of prosecutor who dropped coal-barge charges in MA
    44:32 A12 - Ward updates good news of the next steps for the former prosecutor

    45:02 Q13 - Gratitude for "the human elements" of Grayzel's film [then applause]


    •*** "Washington Court of Appeals Rules Against Necessity Defendants But Leaves Room Open for Future Defenses", by Climate Defense Project, 30 May 2018

       PHOTO: The Washington State Valve Turner, Ken Ward, is far left.

    FULL TEXT: The Washington Court of Appeals today ruled against a group of defendants known as the Delta 5, who had attempted to present a climate necessity defense in the criminal trial stemming from their 2014 blockade of coal and oil trains in Washington state. While the court found that the defendants had not provided enough evidence that their protest was justified by the absence of legal alternatives, the opinion left the door open for future necessity defendants by saying that the climate necessity defense may be available in future cases of civil disobedience, including anti-fossil fuel protest.
        The ruling is a rebuke to prosecutors who have argued in recent years that protesters should never be able to argue in court that their actions were necessary to avoid climate catastrophe. Rejecting this argument, the Court of Appeals ruled that "[t]he defense may be available where the evidence supports all necessary elements." ...

    ... The court narrowly interpreted the requirement that necessity defendants exhaust all reasonable legal alternatives before engaging in civil disobedience, and appeared to ignore the defendants' evidence showing that available alternatives were ineffective. Future defendants may be able to address this issue by presenting expert testimony about the failure of traditional legal methods to address the climate crisis, as a group of defendants were preparing to do in Boston before prosecutors lowered charges, avoiding a jury trial.
        Climate Defense Project presented a first-of-its kind amicus brief in the Delta 5 case arguing that the defendants' climate necessity argument was supported by the public trust doctrine. The Court of Appeals' decision is available here.


    •*** Op-Ed by EMILY JOHNSTON"Pipeline Protest: Why public should hear our 'necessity defense'", 8 June 2018, Minneapolis Star Tribune (1,200 words)

      

    EXCERPTS: Last month, the Clearwater County attorney filed an appeal to the Minnesota Supreme Court, making a second attempt to limit expert testimony in my trial on felony charges. I'm one of four defendants in the Minnesota "valve-turner" trial ...
        ... We did this because the federal government — even then, under the Obama administration — was (and is) utterly failing to address the imminent threat of climate change. We need to immediately stop the use of the dirtiest fuels — coal and tar sands — and reduce the use of other fossil fuels as quickly as possible. As quickly as if we wanted to leave a stable planet for our kids, because that's what's at stake.

    continued below


        We knew that if we risked prison time to draw attention to this failure and tried to shake the system up enough to respond, we might get people to listen to us. We might even get to use the legal "necessity defense" , which would allow us to bring expert witnesses (scientists, mostly) to testify not only to what we did (which we've never denied) but also why we did it and why our actions were a reasonable response to an unreasonable crisis.
        My friends and I are older, cautious people — I was the youngest, at 50 — and we have worked legally on the fight against climate change for years or decades as we grew increasingly worried by the science. We've written and signed petitions; organized protests; testified at hearings; met with our legislators; and much more. And we've watched the world get hotter, people die and be displaced, and governments dither — most of all our own. There are many reasons for this paralysis, starting with the amount of oil money in Congress and decades of lies from the fossil-fuel industry. But it cannot continue — if it does, it's not just a few places here and there that are at risk; it's everything. And we're running out of time.
        We know that we can't stop fossil-fuel use overnight. We also know that we may already have passed some of the feared "tipping points" that render catastrophic climate change unstoppable, by creating feedback loops in which, for example, polar ice melts and the darker water left behind absorbs more heat, thus melting more ice, in a pattern we can no longer halt. Between these poles of knowledge lie continents defined by our ethics, determination and willingness to change....
        Our friends Leonard and Ken were sentenced to probation and community service. Our friend Michael is in prison in North Dakota right now; he'll be released on Aug. 1. Only our trial remains — because the judge granted us the necessity defense. If this happens soon, it will be the first climate-focused necessity-defense trial in the U.S. (the week after ours was granted, another one — of a minister in Spokane, Wash. — was also granted; his has also been appealed).
        When the judge granted us the use of this defense, he wasn't saying that he thought we'd proved what we did was necessary, not by any means; he was simply saying that based on what we said and the evidence before him, there was a chance that we might be able to prove this. And since it seemed possible, he believed we had the right to fully assert our defense to a jury.
        I was elated. This meant that we could bring serious scientists of both physics and social change into the courtroom to talk about how our national political paralysis is putting humanity at the most profound risk it has ever faced and why it was reasonable for us to think that our actions might make a difference.
        The prosecutor appealed — this kind of testimony would obscure his very neat case (we didn't deny a thing; we'd videotaped it all). The appellate court, after several months, agreed with the judge: The state of Minnesota should let us go forward with a full necessity-defense trial. Our witnesses should be allowed to speak to a jury of our peers.
        But last month, the prosecutor appealed again — this time, to the state Supreme Court. The prosecutor, mind you, is not supposed to waste resources with frivolous appeals, and he's supposed to act in the interests of the state, not the pipeline company. We know very well why the pipeline company doesn't want us to present a necessity-defense trial; there's a fair chance that if we can, we'll win. And if we're acquitted because our jury agrees that climate change poses unacceptable risks, the days of the pipeline company's ability to treat its product as though it's harmless are over.
        If there is any chance that we're right, then it's obvious that the overwhelming interest of the state is not the prosecution of a minor property crime (the chains that we cut), but rather a clearer understanding of the imminent threat of a warming world. In light of this, our judge and the appellate court have indicated that they want our jury to hear what our witnesses have to say. If our expert witnesses aren't persuasive that what we did was necessary, we'll still be convicted. If they are so persuasive, though — then that truth overwhelms the interest of the state in a simple conviction on trespass and minor property damage....
        I believe that this trial — like the suit brought by young people against the U.S. government or those filed by cities against the fossil-fuel industry — is one of our last, best chances to shift public opinion in this country, so that we finally demand a fighting chance for our kids.
        I'm still willing to risk prison in order to help alert the world to the dangers we face. Let there be no more delay. Let our witnesses speak, and let the truth be heard.


    •*** "A Climate Constitution in the Courts and the Streets", by Jeremy Brecher, 6 June 2018, Common Dreams

    Editor's note: Although the Valve Turner actions and trials occupy only one paragraph in this lengthy article, this is likely the most detailed history of use of the climate necessity defense within the foundational public trust doctrine that is linked from this Valve Turner news links webpage. The article also illustrates how the history of the Civil Rights movement exemplifies the power of how favorable court decisions and ramp-ups of civil disobedience can partner one another in bringing about actual change.


    •*** WEBINAR VIDEO: "The Necessity Defense for Civil Disobedience on Climate: Growing Traction for a Powerful Movement Strategy", by StandWebcasts, 24 June 2018 (speakers in photo below; Matt Krogh is moderator)

       Highlights of this 112-minute VIDEO include attorney Kelsey Scaggs' initial overview of the necessity defense (timecode 04:00), along with moving statements by the 3 activist speakers on the importance of defendants speaking in the courtroom from a deeply grounded moral stance.

    In that regard, Ben Joldersma recalls his statement (and tears) in a pre-trial hearing of why being a parent impelled him to do all he could to protect his kids from climate devastation (44:58). Marla Marcum provides anecdotal evidence that attaching personal statements (e.g. letter from your pastor) onto your clothing during action can land on the evidence table that jurors get to see (57:45). At (01:06:19) she advocates that the defense team needs to help the jurors feel "large and powerful" and to realize that they are indeed participating in a moral deliberation.

    Jay O'Hara speaks of his Quaker faith and sense of moral certitude for taking direct action (01:09:34), and that "climate disobedince is about bringing institutional law into line with moral law" (01:15:07).

    TIMECODES OF SPEAKER STATEMENTS:

    0:02:00 - Introduction of the four guest speakers
    0:04:00 - Kelsey Scaggs
    0:14:16 - Marla Marcum
    0:26:05 - Jay O'Hara
    0:36:22 - Ben Joldersma
    0:50:47 - Kelsey Scaggs
    0:55:25 - Jay O'Hara
    0:57:45 - Marla Marcum
    1:01:20 - Kelsey Scaggs
    1:06:19 - Marla Marcum
    1:09:34 - Jay O'Hara
    1:12:50 - Ben Joldersma
    1:15:07 - Jay O'Hara
    1:17:28 - Ben Joldersma
    1:17:48 - Marla Marcum
    1:21:22 - Kelsey Scaggs

    "Living the emergency: Climate activists turn to civil disobedience at the risk of serving prison time", by Alexandra Varney McDonald, 25 June 2018, UU World.    EXCERPTS:

    MICHAEL FOSTER:
    • Foster felt "a mismatch in counseling kids and families in "how to be well-adjusted in an increasingly pathological world." He turned to environmental education, but it wasn't enough. "In between the mental health career and shutting down the pipeline were three years of activism: organizing kids, planting trees, suing the government — meaningful things that were not gaining traction," explains Foster. He decided that civil disobedience was the obvious next step. "It's about walking the talk, living the emergency, and being a first responder to everything to come," he says. "As time continues to tick by, most people will recognize that this is the only reasonable response." ... "Since the Shut-It-Down action," Foster recalls, "UUs [Unitarian Universlists] have offered me pulpits and given me the opportunity to share the message of climate emergency — a message I've heard more from UUs than any other faith group." Foster is grateful to UUs, who have also donated funds to assist in paying for his defense.

    • "We meant to challenge the system that was meant to protect life and liberty . . . (a)nd the corporate property and trespass laws that undermine life and liberty," says Foster.

    • Valve turner Michael Foster has no regrets and views his time behind bars as one for reflection. "Being in prison is a time for me to unwind," says Foster. "(I can) get clear spiritually, get clear emotionally, and allow my mind to consider what needs doing now."

    LEONARD HIGGINS:
    • UU fellowships continue to hold fundraisers for the valve turners, including Leonard Higgins's congregation, the UU Fellowship of Corvallis, Oregon. Higgins, 66, is also grateful for his UU connections. He and fellow UU climate activists took training in nonviolent direct action and civil disobedience. He points to the "red candle of courage" ceremony bestowed on him by the congregation as a powerful spiritual experience and message of love and support, held just prior to his trial for being the valve turner who shut down the tar sands entering Montana. Convicted of misdemeanor trespass and felony criminal mischief, Higgins arrived at his sentencing hearing fully prepared to go to prison, just as Foster had done six weeks earlier. Standing before the judge in rural Montana, Higgins spoke: "My hope is that more and more of us will see and feel the emergency and pull together to demand immediate changes to reduce our carbon emissions and the other responses needed to avoid the worst." Then came his sentence: three years imprisonment, but all three deferred. Although Higgins is on probation, he does not have to serve time. "Nonviolent civil disobedience is the only activist's tool that has a chance to change public perception, public and government policy, quickly enough to save us from the worst impacts of climate change," says Higgins. "We are out of time and crossing unrecoverable tipping points."
    EMILY JOHNSTON:
    • However, in what could be a big step forward for climate-change activists, the necessity defense will be allowed in the trial of the last two valve turners, set for this summer in Minnesota. One of them, Emily Johnston, has brought her message to even more UUs, last year recounting her climate wake-up journey at the pulpit of Northlake UU Church in Kirkland, Washington. Unlike Higgins's and Foster's trials, Johnston and her co-defendant, Annette Klapstein, will be allowed to give testimony as to why their actions are necessary and justified to prevent climate harm, and why climate change is much worse than trespassing or interfering with the pipelines.


    •*** "Jury Will Hear Pipeline Protesters' Necessity Defense", by Dionne Cordell-Whitney, 18 July 2018, Courthouse News Service

    EXCERPTS: The Minnesota Supreme Court rejected state prosecutors' bid to shut down a climate "necessity defense" in the case of protesters who tried to disrupt oil pipelines, leaving jurors in the activists' upcoming trial to decide whether their conduct was necessary to prevent environmental harm.... Prosecutors appealed to the Minnesota Supreme Court but it declined Tuesday to hear the case, meaning the case will go to trial this fall. Chief Justice Lorie Gildea's denial of the appeal also means the defense will be able to present evidence about climate change to support their claim that their actions were justified by the threat of environmental harm.
        ... Johnston said in a statement that the Minnesota Supreme Court's decision not to hear prosecutors' appeal means the activists might get to make a "real difference in how the public and the legal system respond to the overwhelming threats of climate change. It's been a long road, but we're almost there — and not a second too soon," Johnston said.
         Klapstein also said she is "very happy" that the state's high court chose not to review the appeals court's decision to allow the necessity defense. "Our right to present and the jury's right to hear the facts about the ongoing and accelerating climate catastrophe have been upheld, and we look forward to presenting this evidence to the jury," Klapstein said in a statement. The trial date has not been set but it is expected to happen later this year, as soon as October.
    •*** "Minnesota's highest court won't block 'necessity defense'", by KHQ Television (Spokane WA, NBC affiliate), 18 July 2018. (This Associated Press story also appeared in: Twin Cities Pioneer Press, Crookston [MN] Times).
    FULL TEXT: ST. PAUL, Minn. (AP) - Climate change protesters are claiming victory in their effort to present an unusual "necessity defense" against felony charges stemming from efforts to shut down oil pipelines. The Minnesota Supreme Court declined Wednesday to review a ruling by the Minnesota Court of Appeals that backed the protesters, who will still face an uphill legal battle when their case goes to trial this fall.
         Emily Johnston and Annette Klapstein acknowledge turning the emergency shut-off valves on two pipelines in 2016 in Clearwater County of northwestern Minnesota as part of a coordinated nationwide action. Eleven activists were charged in all.
         The Court of Appeals ruled in April the two Seattle-area women can argue that they believe the threat of climate change from Canadian tar sands crude is so imminent that they were justified.


    •*** "The 1.5 Generation", by Eric Holthaus, 22 August 2018, Grist

    EXCERPTS: ... Emily Johnston traveled from her home in Seattle to northern Minnesota. There, she turned the emergency shut-off valve at the Canadian border on the Enbridge Energy tar-sands oil pipeline, one of North America's largest. After she was arrested, she presented a novel legal defense: Johnston claimed that her turning the valve was a "necessity" in response to a climate emergency.
         "I know that there are plenty of people in the world who think that what we did was crazy," Johnston tells Grist. "When you risk jail time, there's definitely a different way in how people respond to what you've done. It's harder for people to dismiss what you're doing."
         When pressed, Johnston admits that she doesn't like being labeled "a radical." The way she sees it, her actions are like those of citizens who enlist in the military when their country is attacked. She sees it as putting her life on the line for a cause she believes in. Taking direct action like this might appear destructive on the surface. But it's in the service of preventing a much larger threat.
         "We have arrived at that place after thinking about all the other different things we could do and coming to the conclusion that this is, flat-out, simply something that has to happen given the urgency of the climate crisis," she explains....


    "Be the Hummingbird. Be the Bear": A special call to mothers, grandmothers, aunties, godmothers, and all those who love the children, by Kathleen Dean Moore, Autumn 2018, Earth Island Journal

    EXCERPT: ....In video reports, I watched Annette Klapstein, a spare grey-haired grandmother, and her friend Emily Johnston hoist oversized bolt cutters to cut the chain on an oil-pipeline valve in Minnesota. They shut off the flow of Canadian tar-sands oil through that pipe, then stood in orange safety vests and hardhats, waiting to be arrested. Soon they will argue in court that their action was necessary to protect children from the enormity of global warming and ecosystem collapse....


    •*** "Trial Will Test New Weapon Against Climate Change: Necessity Defense", by Seamus McGraw, 25 September 2018, Climate Liability News

    EXCERPTS (focusing on original quotes): ... Annette Klapstein and Emily Johnston were both charged with multiple felonies and could face up to 10 years in prison. Videographer Steve Liptay and Benjamin Joldersma, who was on hand to lend support, are both facing misdemeanor charges.[Editor's note: Liptay's charges were dropped two weeks ago.]
         Their defense is that their crime was part of preventing a greater harm: climate change. It's called the necessity defense and when the judge in archly conservative and rural Clearwater County ruled last year (and was upheld by an appeals court in August) that the defendants could use it in this trial, it threw an entirely new wrinkle into the battle to force climate action through the courts.
         That battle has gathered steam in the past two years on multiple fronts, with a landmark youth-led suit, Juliana v. United States, also headed to trial in October, with 21 young people arguing the federal government is robbing them of a safe climate and livable future. A wave of communities and one state attorney general have begun to sue the fossil fuel industry to pay for the spiraling costs of climate impacts. And two states, New York and Massachusetts, are using consumer and investor protection statutes to investigate whether the biggest of the U.S. oil giants, Exxon, is guilty of fraud.
         "The idea is to turn the courtroom into a classroom, said William Quigley, a Loyola University law professor who has written extensively on the necessity defense and who filed an amicus brief in support of the Civil Liberties Defense Center's bid to use it in Clearwater County. Quigley said in the brief that lawyers will place every bit as much emphasis on hashing out the critical issue as they do on winning acquittal.
         "Nonviolent civil disobedience is part of the American democratic tradition," he wrote in the brief. "The four individuals named above stand in the shoes of the American freedom fighters, the abolitionists, the suffragettes, the civil rights campaigners of the 1960s, and the antiwar protesters that followed. Criminal trials in which protesters have explained and argued their views are an integral part of that tradition. The use of the necessity defense in this case is not only doctrinally appropriate but strengthens the constitutional bedrock on which our legal system rests. That bedrock includes the right to trial by jury, freedom of expression and debate, and a natural environment capable of providing for human needs."
         Quigley argues that even if the defendants are convicted, there is triumph in having put climate change itself on trial.
         Carroll Muffett, president and chief executive of the Washington, D.C.-based Center for International Environmental Law agrees. "In the face of inertia in policy making — particularly at the U.S. national level — we are failing to respond to the climate threat at anything approaching the speed and scale that we have to do that. This is what is pushing individuals toward ever stronger action, including putting themselves on the line, to try to stop climate change," he said. "If you have tried to change the law, if you've tried to prevent harm through every legal means — opposing permits, filing suits, intervening in the political process — and harm is still occurring or imminent, then that is precisely when the necessity defense is relevant: when taking action to avoid a larger harm violates a law."
         "People are showing that if policy makers won't stop it then we will put ourselves in harm's way to do so; it is a natural evolution in the face of a pressing crisis," Muffett said. "Courts are grappling with this increasingly, and in a number of cases, judges have recognized that these realities may be sufficiently pressing that the necessity defense has a legal role to play."
         ... "All of those are on appeal right now," Regan said of that case and the others. More important, she said, in the cases, jurors expressed a certain respect for the defendants' principles. "In all three other valve-turner trials, in rural Washington and rural Montana and rural North Dakota, every single jury pool started off with jurors who would literally say climate change is a hoax perpetuated by the Chinese. But at the end of the trials, when the judges gave us permission to go talk with the jurors, they were shaking our clients' hands and thanking us for educating them about climate change.
         "I think the courtroom is a fairly intimate setting and I think having our clients take the stand and having a fairly direct conversation with 12 strangers ... and especially in this case being able to present expert testimony and have some of the top brains working on these issues being able to sit down and explain things to jurors, I think is an incredibly effective way to reach into audiences and communities that we might not otherwise have access to."
         Using the courtroom as a forum for educating the public on the risks of climate change is certainly one of the principal objectives of the strategy, said Quigley. "These are arguments that the prosecutor always wants to exclude because the people who have the chance to make these arguments often win their cases," Quigley said, "If it's just, 'did you trespass onto somebody else's property and use a wrench on their stuff?' well, a jury's gonna say, 'yeah, that's a crime.' But if the defendants can put on somebody from the local university to say, 'look, let me tell you what this pipeline is doing to our environment,' then this is a chance to send a message that there are some things that are legal but they're not right."
         ... Indeed, Regan said she was confident that she could provide evidence not just that the climate peril posed by the tar sands oil in the Enbridge pipeline was immediate, but that the specific actions taken by the valve turners — not just in Minnesota but in all the states where the activists acted — would have been a reasonable and effective response. "I'm sure you're aware that the five pipelines that were shut down were all pipelines carrying tar sands into the United States," she said. "If all of that tar sands flow had actually stopped and the pipeline companies had not been permitted to restart those pipelines, then the action would have achieved the 15 percent reduction in carbon emissions that is required according to scientists in order to regain control of the out-of-control spiral that's currently going on in regards to carbon emissions."...


    "Seattle women: 'Yes, we committed a crime, but we did it' to fight climate change", by Amy Radil, 3 October 2018, KUOW (Seattle)

       EXCERPTS: Seattle-area activists Emily Johnston and Annette Klapstein went to Minnesota in 2016 to shut down oil pipelines. Two years later, their trial begins. Klapstein, a retired lawyer from Bainbridge Island, worries she won't be back after her trial. "If I go to prison, my husband is somewhat disabled and I'm also a large part of the support system for my very elderly mother," she said. "Those things are concerning."
         But Klapstein said white people and older people like herself have an obligation to take these risks. "What better thing to do with your retirement than attempt to salvage a habitable world for your children and grandchildren — I can't think of anything better," she said.

    Emily Johnston said the long wait for trial has been punctuated by moments of alarm, as when members of Congress asked the U.S. Department of Justice to treat her like a domestic terrorist. "I redid my will," Johnston said. "I went to a friend's house and told her what to do with my dog and what to do with my house and here's what happens if I just get spirited away."
         Federal charges never came. Instead the two women face felony charges under Minnesota state law. They plan to tell jurors that civil disobedience is the only possible response to government inaction on climate change. The so-called necessity defense "is a plea that, yes technically we committed a crime, but we did it to prevent a greater harm," Klapstein said. They hope the Minnesota trial — and a children's lawsuit that goes to trial later this month in Oregon — could create new momentum to address climate impacts.
         Activists in other states have not been allowed to make climate change the central issue in their trials. Michael Foster shut down a pipeline on that day in 2016, but his trial took place in North Dakota. "My judge said, 'This is a trial about trespass, this is not about climate. I am not going to confuse the jurors with climate science information,'" Foster said.
         ... Michael Foster was the only "valve turner" to be sentenced to prison so far. He was sentenced to one year, but ultimately served six months in state prison in North Dakota for trespassing and felony criminal mischief. Foster said the best part about serving his sentence was being offline. "I read 65 books in prison," he said. "I didn't read that many books in college!" He said the social scene was challenging, though. Both prisoners and staff were baffled by his crime — and that he waited for arrest. "They almost, to a person, thought climate change was a hoax," he said.
         Foster was released from prison on August 1. He took a bus back to the Greyhound station in Seattle where his friends met him and took him out to eat. "There's a Denny's down there and the waitress said she'd never served so many veggie burgers," he said.
         Foster has lived with housemates in Wallingford since, riding his bike and abiding by the terms of his parole. He recently took part in a protest at Seattle's cruise ship terminal but didn't lock himself down. "I was wearing a Carnival polo and ballcap and handing out sno-cones made from the last glaciers," he said.
         Foster works one day a month as a drug counselor. "Then I live on pennies for the rest of the month so I can add as little pollution to the economy as possible."... And as tempting as it is to recoil from reports of drought, floods and wildfires, "This is not an asteroid hurtling towards the planet," Foster said. The causes and solutions lie with people.


    •*** "Ultimate Necessity", by Camilla Mortensen, 4 October 2018, Eugene Weekly (Oregon)

       EXCERPTS: ... Emily Johnston, 52, and Annette Klapstein, 66, both of Seattle, were among a group of five "Valve Turners" who turned down the flow of tar sands oil on pipelines from Canada into the United States for a short time in 2016. Johnston is a founder of 350 Seattle, which she describes as deeply engaged in climate work and mildly in civil disobedience. Klapstein says she has been an activist her whole life, including protesting Vietnam and was arrested in 2014 for blocking oil trains from entering Tesoro refinery's unloading facility in Anacortes, Washington.
         In Minnesota, the two women were charged with felony counts of criminal damage to critical public service facilities and other counts after their act of civil disobedience at an Enbridge tar sands pipeline facility. "We don't deny what we did at all," Klapstein says. "What we did was a necessity."

    Johnston, Klapstein and their legal team are mounting what is called the "necessity defense." The risk of arrest and jail time pales in comparison to the dangers of rising sea levels and increasing carbon dioxide levels. They are part of a group of people using their status as older white Americans to engage in civil disobedience and call attention to the catastrophe that is climate change.
         Support crew member Benjamin Joldersma, who also faces charges, called the pipeline company and told Enbridge they were planning to shut off the oil "in the safest possible way," Klapstein says. Joldersma told the company what they were doing, and said, "for the sake of climate justice and for the future of human civilization you must immediately halt the extraction and burning of Canadian tar sands."
         In fact, it was Enbridge itself that shut off the oil. Klapstein says that as they turned the "little wheel to shut off the valve, in a minute or two we saw a giant screw go down." Meanwhile, Steven Liptay filmed the action. His misdemeanor charges were later dropped. The activists left a small bouquet of flowers on the valve.
         ... The Valve Turners set out to shut down the pipelines. In a sense the case centers on just why they did it. If you ask them, in a nutshell, it was to save the world. The Valve Turners targeted the tar sands pipelines, their attorneys write eloquently in court documents, because burning the oil from the Canadian tar sands "would lock humanity into a cycle of dangerous warming from which it would not be able to escape." The lawyers in the case are Lauren Regan of Eugene-based Civil Liberties Defense Center, Minnesota-based attorney Tim Phillips and Kelsey Skaggs of the Climate Defense Project.
         The tar sands themselves hold massive amounts of oil, but the CO2-intensive extraction process needed to extract the bitumen from the sands makes them even more troubling for the climate. The lawyers go on to cite the Union of Concerned Scientists, which says that each gallon of gasoline made from tar sands contributes 20 percent more CO2 emissions than average. They also point to Dr. James Hansen's oft-cited New York Times quote that the tar sands are "game over for the climate."
         ... Working from her Eugene office, Regan tells EW that the necessity defense will allow the climate activists to demonstrate that, first, the harm to the climate and the planet significantly exceeds the harm actually caused by the law-breaking of the valve turning, a nonviolent direct action. Second, there are no reasonable legal alternatives to breaking the law at this point when it comes to climate change. Third, the defendants were in danger of imminent physical harm from the effects of such as sea-level rise and wildfires. And finally, they will show there was a "direct causal connection between breaking the law and preventing the harm."
         Longtime climate activist and 350.org founder Bill McKibbin, who is lined up to testify at the trial in rural Minnesota, tells EW via email that "Civil disobedience is a way to underline the moral urgency of a situation; it helps people understand just how important it is. And climate change is a timed test — since we have to act quickly. That adds to the imperative." When it comes to stopping climate change, "no action by itself can possibly get us there," McKibben says. "It takes a wide movement pursuing many possibilities — we march, we testify, we lobby, we vote and sometimes we go to jail."
         ... "Somber and worried, but also serene." That is how Emily Johnston said she was feeling before entering the enclosure to shut off the Enbridge tar sands oil valve and risk arrest. Talking to EW now, she points to the storms worsened by climate change, such as the hurricane that hit Puerto Rico, killing almost 3,000 people, according to a study by George Washington University. "For sure, I had some worry," Johnston says of the valve turning. "Taking the risk of spending years in jail is not something I welcomed at all. We were totally prepared to face the consequences."
         Annette Klapstein adds, "I agree, and I personally feel very strongly it's our job as elders to step up and protect our children and grandchildren and future generations" from the effects of climate change. She continues, "It is totally criminal, a crime against humanity and all life by the fossil fuel industry, and I begrudge every life they have taken and will take."
         Klapstein is a "Raging Granny," a member of a social justice organization made up of women old enough to be grandmothers who are known for their activism and songs. "We are in a key window that is rapidly closing, where we can still stave off runaway climate change," she says. "This is the time to step up." Specifically, she says, "For old white people like myself, this is our duty. We are in the best position because of our privilege." She points out that the police are "unlikely to shoot us, unlike our young people of color activist friends."
         Klapstein is retired from her work as an attorney for the Puyallup Tribe. "While I don't relish the idea of prison, I'm not going back to work, no one is depending on me. I'm privileged in so many ways." "What better thing to do with your retirement?" she asks.
         Speaking of the upcoming case, as well as lawsuits such as the Our Children's Trust case and the climate liability cases, Johnston says, "They are super important because, there again it's all about changing the narrative. Cities and counties and jurisdictions are incurring tremendous bills. Those bills are directly the result of the of the fossil fuel industry." Johnston says, "It's time to hold people accountable to the level of evil fossil fuel companies have engaged in. We actually have an opportunity to stop devastation that nobody will ever have again."


    •*** "This Landmark Trial of Climate Activists Puts the Political System Itself on Trial", by Wen Stephenson, 5 October 2018, The Nation, 3,400 words

    EXCERPTS: Editor's note: Lengthy excerpts because this article provides background details and summary not found elsewhere, first on the valve-turning action and then on the necessity defense.

    [THE VALVE TURNING ACTION]

    On the morning of October 11, 2016, in what today might seem a different political era, five middle-aged climate activists from Washington and Oregon posted a well-reasoned if somewhat unusual letter to President Barack Obama. In the letter the activists laid out the case, as supported by science that Obama claimed to accept, for an expeditious end to the extraction and burning of coal and tar-sands oil in order to have a shot at the Paris Agreement goal of limiting global warming to 1.5 degrees Celsius above the preindustrial average. Pointing to the lack of any plausible legal means to bring about such a halt, they went on to inform the president that their only available option was to engage in direct action: "which is why we are acting today," they wrote, "to shut down the five pipelines used to transport tar sands oil from Alberta [Canada] into the US."
         With civilization and the future of human life itself in the balance, "the sane choice is to act now," the activists wrote to Obama. "Which raises the practical question of what a concerned citizen should do when our governments and economic systems are committed to a course of global suicide and are willing and able to bend the political system and civic discourse to their will."
         The action that those five concerned citizens, now known to the world as the Valve Turners, took that day — manually closing the emergency shut-off valves on tar-sands pipelines in Washington, Montana, North Dakota, and Minnesota, then peacefully awaiting their arrest — surely stands among the boldest acts of nonviolent civil disobedience, on climate or any other issue, in memory. As Reuters reported, it "shook the North American energy industry," stopping the flow of tar-sands oil from Canada, equaling some 15 percent of daily US consumption. They acted independently, without the backing of major environmental and climate groups. Three of the Valve Turners have been tried and convicted of felony charges — Ken Ward in Washington, Leonard Higgins in Montana, and Michael Foster in North Dakota — and one of them, Foster, has served time in prison.
         Now, in conservative Clearwater County in northwest Minnesota, the remaining two Valve Turners, Annette Klapstein and Emily Johnston, along with support-team member Ben Joldersma, are set to go to trial in district court on October 8. In what is already a landmark case, District Court Judge Robert Tiffany issued a written opinion granting use of the "necessity defense" (denied in the other three cases), and in July the Minnesota Supreme Court allowed the rarely approved defense to go forward. That means Klapstein, Johnston, and Joldersma will testify before a jury — along with expert witnesses such as former top NASA climate scientist James Hansen (now of Columbia University), Middlebury environmental scholar and 350.org founder Bill McKibben, Princeton political scientist Martin Gilens, Harvard Law School's Lawrence Lessig, and others — that their actions were necessary and legally justified in response to the threat of catastrophic climate change. If the judge instructs jurors to consider the evidence of necessity, it will be a historic first in a climate-related jury trial in the United States — at a time when states are cracking down on peaceful protest against fossil-fuel infrastructure.
         ... "This is the only way we get their attention, this is the only way we can put a stop to it, by putting our own bodies on the line. All other avenues have been exhausted at this point." Annette Klapstein, a retired lawyer for the Puyallup tribe in Tacoma and a mother of two, is speaking to a camera held by documentary filmmaker Steve Liptay in the gray early-morning light on that day in October 2016. She sits in the passenger seat of a parked car near the entrance to the fenced-in shutoff valves for Enbridge Lines 4 and 67 outside Leonard, Minnesota. "So, for the sake of the children and the earth that we love, I'm ready to do this." (Liptay, who has worked closely with filmmaker Josh Fox, produced a sleek, pulse-pounding video of the action and is at work on a feature-length documentary about the Valve Turners; for his journalistic efforts in Minnesota he received criminal charges, only recently dropped.)
         Like their valve-turning comrades in Washington, Montana, and North Dakota at that hour, Klapstein and Johnston proceeded to use heavy-duty bolt cutters to enter the enclosures and break the chains fastening the shut-off valve wheels. Meanwhile, according to plan, Joldersma called officials at Enbridge, the pipeline company, to inform them of the situation, giving them the opportunity to shut down the pipelines remotely — which the company promptly did, before Johnston and Klapstein could finish the job. "We cannot work through our political system, because its values are nothing but profit," Klapstein told me recently. "We live in an oligarchy, not a democracy." When asked what people like her, who may feel powerless, can do to be effective under such circumstances, she answered, "It's very much in the interest of the capitalist political system to make us feel powerless, to make us feel that we can't do anything." And yet, she said, "ultimately, they cannot win if we do not consent. If we really withdraw our consent, if we really go out there and sit down in front of the machine, eventually they can no longer operate it. And at this point, that is our only option."

    [THE NECESSITY DEFENSE]

    ... "The necessity defense offers a powerful framing of why people do civil disobedience," [Kelsey] Skaggs told me in a recent interview. "It's a powerful way of explaining to other people why they would take a risk like this — as reasonable human beings. I believe that's what we need to change political consciousness." In other words, one might say, putting the question of climate necessity before a jury is an exercise in democracy — at a time when democracy itself is failing.

       The climate-necessity defense has made significant strides in recent years. While peace and antinuclear protesters engaging in civil disobedience have successfully mounted necessity defenses since the 1970s, the first successful use in a climate case appears to have been in the 2008 Kingsnorth Six trial in the United Kingdom, in which Greenpeace activists were acquitted of charges stemming from a coal-plant protest. Until very recently, climate activists in this country have not been allowed by US courts to argue necessity. Tim DeChristopher attempted to use a necessity defense in his 2011 federal trial in Utah, but the judge in the case rejected it. Since then, a number of climate activists have tried to use the defense, with varying results. In 2014, the judge in Ward and O'Hara's trial in Massachusetts cleared the way for them to use a necessity defense, but the district attorney dropped the charges on the morning of the trial and very publicly joined their cause — giving credibility to the necessity argument without having it aired in court.

    The following year, in the Delta 5 case, climate activists who blockaded oil-train tracks in Everett, Washington, were allowed to present necessity evidence in their jury trial, but the judge ultimately declined to instruct the jurors to consider it. The jury convicted them of trespassing, but acquitted them of more serious charges. More recently, in the West Roxbury case in Boston earlier this year, a dozen climate activists (including DeChristopher and Karenna Gore) who disrupted construction of a fracked-gas pipeline through a residential neighborhood were cleared to present a necessity defense, but prosecutors reduced their charges at the last moment to avoid facing expert witnesses in a jury trial. Not to be deterred, Judge Maryann Driscoll acquitted the defendants of civil infractions by reason of necessity. In a current case in Spokane, Washington, activists who blockaded coal- and oil-train tracks have been allowed to present a necessity defense, pending appeal. And in Cortlandt, New York, a group of activists protesting fracked-gas infrastructure have been allowed to use the defense in a bench trial.
         ... On these latter points, the defense is prepared to call political scientists and legal scholars, such as Princeton's Gilens and Harvard's Lessig, whose research shows the influence of large corporations, including the fossil-fuel industry, over policy-makers in the United States, arguing that it's unreasonable to expect regular citizens to out-lobby the wealthiest industry on Earth in the corridors of government. Meanwhile, expert witnesses like Middlebury's McKibben and Jamila Raqib of the Albert Einstein Institution are prepared to testify on the effectiveness of civil disobedience and nonviolent direct action in igniting and spurring social movements that have brought profound political change — including in situations where the political system seemed as immovable as ours today.
         In an amicus brief for the Minnesota defendants signed by more than a hundred law professors, the authors draw a direct link between the climate-necessity defense and the federal Juliana case going to trial in Oregon, noting that the doctrines involved "underscore the serious constitutional implications of the ongoing climate crisis." The harms that the Valve Turners are trying to prevent, the authors write, "are matters not of personal political opinion but of constitutional rights and duties." The government's failure to protect a stable climate is an abrogation of those rights and duties, and the defendants' efforts to redress that failure through nonviolent civil disobedience "is part of the American democratic tradition." Indeed, the defendants "stand in the shoes of the American freedom fighters, the abolitionists, the suffragettes, the civil rights campaigners of the 1960s, and the antiwar protesters that followed," the authors write. "Criminal trials in which protesters have explained and argued their views are an integral part of that tradition."
         "The core and indispensable function of the necessity defense," the amicus brief argues, "lies in submitting to a jury of the defendant's peers the question of whether the defendant's protest actions were justified by the social, political, scientific, and moral context in which they took place. Jurors are called upon to act as the 'conscience of the community.'"
         ... "It's important that the necessity defense is going to be argued in a relatively conservative community where Big Oil and even a particular company, whose pipes were shut down, have a pretty big footprint," [Marla] Marcum said. "Because ordinary folks in places like that, people who will be in that jury pool, have not actually had many opportunities to hear the full truth about what's going on." "Very few necessity cases ever get to a jury trial," Marcum said. "But when they do, there's so much potential for the jury to be a sort of last bastion of real direct democracy, if the jurors are allowed to hear all of the relevant facts. And even if it's Trump Country, or whatever labels you want to put on this community, I trust that ordinary folks care about their families, and they care about the future, and they don't really understand what is being done in their name, right under their noses, every day — because it's a multimillion-dollar industry to ensure that they don't know."
         "I think that's largely an excuse," she [Annette Klapstein] said. "Is it too late? It could be. Absolutely. But what is my alternative to fighting to the end? I'm going to go down fighting, because I don't know — I can never be absolutely certain it's too late. I'm going to do what I can to at least lessen the damage for as long as I draw breath." "I hope the jury will be open to hearing what the scientists and political scientists have to say," she told me. "I don't know if they will. But I went into this accepting the possibility that I could go to prison. I'm completely at peace with whatever outcome we get. Whatever happens, it's OK. I'm very happy to be able to present our case, both to the jury and judge and to the larger world."


    •*** Judge Limits Expert Climate Testimony as Valve Turners Necessity Defense Trial Begins, by Seamus McGraw, 8 October 2018, Common Dreams

    EXCERPTS: ... Jury selection began Monday in Clearwater County, an overwhelmingly conservative corner of an otherwise purple state, after the judge decided on Friday to dramatically restrict the number of expert witnesses the defense would be permitted to call, and hinted at possible limits to the scope of testimony the remaining witnesses would be able to give.
         With the judge's decision on the eve of the trial to limit the witnesses, the burden for making their case falls largely on the defendants themselves. In a statement released over the weekend, the defendants criticized what they described as the "11th hour" decision by the judge to limit the defense. "Four days before trial, for no apparent reason, the court eviscerated our defense, and essentially overruled itself," said Johnston, a Seattle-based activist. "It is impossible for us to properly defend ourselves without expert testimony."
         The judge allowed the defense team, Lauren Regan of the Civil Liberties Defense Center and Tim Phillips and Kelsey Skaggs of the Climate Defense Project, to call five witnesses, which was cut down from nine on their original roster. One of those five, however —climate activist, author and 350.org founder Bill McKibben — said he would not be able to appear because his flight was canceled.
         The others are former NASA scientist James Hansen, public health expert Bruce Snyder, former Cornell University professor and pipeline expert Anthony Ingraffea and activist Ken Ward, who was charged with sabotage in Washington in a #shutitdown action on the same day.
         Like the defendants in Minnesota, Ward relied on the necessity defense. His first trial ended in a hung jury and the second ended with an acquittal on the most serious offense and a conviction, instead, on a second-degree burglary count. Ward was sentenced in June 2017 to two days in jail — which he had already served while awaiting trial — and 240 hours of community service.
         It's unclear at the moment how many of the five witnesses may be called, or how much latitude they will be given to explain the issues surrounding climate change. They may be required to focus narrowly on the direct impact of climate change on this corner of rural Minnesota. Ingraffea, for example, a noted pipeline expert who spent years advising the oil and gas industry on how to build pipelines before becoming a vocal critic of the industry, is scheduled to testify on Tuesday specifically on whether or not the defendants' actions created a danger to the pipeline or the surrounding community. He said he plans to testify that they did not.
         The judge's ruling also requires all of the defendants to appear in person, Ingraffea said. "My intention was to testify over the Internet, which I've done before in other valve turner cases," Ingraffea told Climate Liability News. "But on Friday afternoon, late, the judge said, 'Nope, you be physically in the courtroom or you ain't testifying.'" Ingraffea said he plans to be there, airline schedules willing.


    •*** Stunning": State Court Silences Climate Experts Set to Testify in Valve Turners' Necessity Defense Trial, by Jessica Corbett, 8 October 2018, Common Dreams

       EXCERPTS: In an eleventh hour decision, a Minnesota court "eviscerated" the defense of three activists — whose landmark trial began Monday for their 2016 multi-state #ShutItDown action that temporarily disabled tar sands pipelines crossing the U.S.-Canada border — by barring experts from testifying that their civil disobedience was necessary because fossil fuels are driving the global climate crisis.
         "The court barred testimony from defense experts on the barriers to effective political action for addressing climate change, the efficacy of civil disobedience historically, and the imminence of climate change," according to the group Climate Direct Action.

    While all charges against Steve Liptay, who filmed the Minnesota action, have been dropped, valve turners Emily Nesbitt Johnston and Annette Klapstein, along with their support person, Benjamin Joldersma, are still facing felony charges under Minnesota state law. Their legal team will now have to present their "necessity defense" without the slate of experts who had agreed to explain the climate crisis and the impact of civil disobedience to the jury.
         This "stunning" reversal came after an appeals court ruled in April that they could present a necessity defense, a decision upheld by the Minnesota Supreme Court in June. The rulings were celebrated by climate activists and experts nationwide as courts in Washington, North Dakota, and Montana blocked requests from fellow valve turners' on trial for the 2016 action to present such a defense.
         "We were looking forward to entrusting this case to a Minnesota jury of our peers to decide after hearing expert scientists and social scientists discuss the facts of climate change and public policy," said Klapstein, a retired attorney. "By requiring us to establish the necessity defense, without allowing us to use our planned expert testimony to do so, the court has placed an overwhelming burden on us," she added. "I'm baffled by the surreal nature of this court's decision and timing."
         "Four days before trial, for no apparent reason, the court eviscerated our defense, and essentially overruled itself," said Johnston. "It is impossible for us to properly defend ourselves without expert testimony."
         Experts that had planned to testify include climate scientists Dr. Jim Hansen, Dr. Mark Seeley, and Dr. Peter Reich; public health expert Dr. Bruce Synder; Princeton professor Dr. Martin Gilens; Harvard Law professor Lawrence Lessig; nonviolent direct action historian and Albert Einstein Institution executive director Jamila Raqib; 350.org co-founder Bill McKibben; and oil infrastructure expert Dr. Anthony Ingraffea.
         Minnesota District Court Judge Robert Tiffany claimed their testimonies would be confusing to the jury, Climate Direct Action said in a statement on Monday.
         "The irony is that the judge may be proving our point — we acted as we did because we know that the paralysis and myopia of the executive and legislative branches with regard to climate change mean that the political system itself must be shaken up if there is to be any hope for all of us," Johnston noted. "We were hoping that the judiciary might show the way."
         In a blog post on the Climate Direct Action's website, Nicky Bradford and Alec Connon explained that although many or all of the experts may be barred from testifying, the valve turners' supporters are still "hopeful" because "Emily, Annette, and Ben are still allowed to argue the necessity of their actions."
         "Together, our three friends have the combined experience of decades' worth of climate change activism," the post pointed out. "They have founded organizations, lobbied politicians, written letters and op-eds, drafted and delivered petitions, spoken at marches and rallies, given lectures at universities and in high school classrooms. They carry a lot of wisdom — they may not be climate scientists, Harvard law professors, or Princeton social science scholars, as their planned expert witnesses are, but they are smart as hell and ready to present their own knowledge of the necessity to act."
         The trial in Minnesota comes as the United Nations' leading climate science group, the Intergovernmental Panel on Climate Change (IPCC), on Monday released an alarming new report that warns without "rapid, far-reaching, and unprecedented" actions to curb planet-warming emissions from human activity, the temperature could rise to 1.5C above pre-industrial levels by around 2040. Klapstein and Johnston responded to the "heartbreaking update" in a video on Climate Direct Action's Facebook page.


    •*** Climate change trial: MN jury to decide if protesters' lawbreaking is justified, by Dan Kraker, 8 October 2018, Minnesota Public Radio News

    EXCERPTS: ... This trial in Clearwater County is rare because the activists will be allowed to argue that their actions to shut down the pipelines were justified because of the danger of climate change, which is caused by the burning of fossil fuels, including the oil flowing through Enbridge pipelines. But to succeed, they have a high legal bar to cross. They'll have to demonstrate that they exhausted all legal options in trying to stop climate change.
         "In this case, the defendants are being allowed to put on evidence of basically what their activist resumes are," said their attorney, Lauren Regan, with the Civil Liberties Defense Center, a nonprofit that defends environmental and social activists around the country. "Their testimony will be that all of those attempts failed." They also have to prove climate change presents an imminent danger, and that their criminal act would help to address that danger.
         Until a ruling by the judge late last week, the defendants were planning to call expert witnesses — internationally-known researchers and activists who focus on climate change and civil disobedience — to help bolster their argument.
         Regan had lined up a roster of well-known experts including retired University of Minnesota climatologist and frequent MPR News contributor Mark Seeley; former NASA and current Columbia University climate scientist James Hansen, who was one of the first scientists to warn about the threat of human-caused climate change in the 1970s; and writer and activist Bill McKibben.
         Now the judge has forbidden those experts from discussing climate change and civil disobedience. Instead, it appears the argument will fall largely on the defendants themselves to establish to the Clearwater County jury that climate change is a real and imminent threat.
         The first generally recognized attempt in the U.S. at using the necessity defense to curb climate change came in 2009, when an activist named Tim DeChristopher bid $1.8 million that he didn't have on federally owned oil and gas leases in Utah, with no intention of ever developing them.
         ... In northern Minnesota, where authorities have seen an increase in pipeline protests in the past several years, many in law enforcement fear a not-guilty verdict in Bagley will open the door to mayhem. "Whether you agree or disagree politically with pipelines, with climate change, I don't care what side of the issue you're on," said Beltrami County Attorney David Hanson. "If you give people the perception of the color of law to hide behind, they're going to push that envelope."
         Hanson, who previously served as the Clearwater County attorney before moving to neighboring Beltrami, said his main concern is public safety for protesters and for the general public. The freedom to assemble and protest, he added, doesn't extend to committing felonies. "They're going to take their First Amendment right to assemble, and they're going to push it beyond the right to assemble," he cautioned. "And they're going to start committing more crimes."
         Jury selection is scheduled to begin Monday in the Clearwater County Courthouse.
    ______

    Editor's note: The Editorial Board of the "The Grand Forks Herald" pointed to the facts of the case as presented by this MPR News report in its October 9 opinion: Editorial: 'Necessity defense' could unleash chaos.


    •*** Judge tosses case against pipeline valve turners, by Jordan Shearer, 8 October 2018, Bemidji Pioneer (Minnesota)

    EXCERPTS: BAGLEY -- ... "We are obviously relieved that the criminal charges have now been dismissed, but there is a lot of work to do with regard to climate change and the underlying issues," said Lauren Regan, one of the three defense attorneys in the case.
       Like the defendants, their legal team traveled thousands of miles to fight the battle in the small northwoods town. Regan works with the Civil Liberties Defense Center in Eugene, Ore. The team also consisted of Kelsey Skaggs from the Climate Defense Project in San Francisco and Twin-Cities based attorney Timothy Phillips.
         But Tuesday's dismissal did not garner unanimous approval from those watching from afar. "Today's decision is irresponsible, and sends the message that protesters are free to engage in reckless, illegal, and dangerous behavior that puts Minnesotans' safety at risk," said state Rep. Pat Garofalo, R-Farmington, who chairs the House Job Growth and Energy Affordability Committee. "Protesters have already shut down freeways, closed airports and stopped trains.  Now they are going after our energy infrastructure. This is a very dangerous action that needs to be corrected in the next legislative session."
    The judge, Robert Tiffany, dismissed the case at the defense attorneys' request midway through the second day of trial after County Attorney Alan Rogalla rested his case. Tiffany granted the dismissal based on arguments from the defense attorneys, one of which was that the prosecution failed to prove the defendants had damaged the actual pipeline rather than merely the chains and locks bound to the pipeline valve.
         Once the decision was announced, applause and celebration broke out in the courtroom, which had extra seating to accommodate the crowd. All told, there were approximately 65 people in the audience of the small courtroom, according to the courthouse staff.
            Tuesday started with the seating of 12 jurors and two alternates who had been selected after a full day of deliberation Monday. During that process, many of the potential jurors had provided mixed opinions on the validity of climate change.
         The prosecution then brought forth both Clearwater County Sheriff Darin Halverson as well as Enbridge supervisor Bill Palmer to testify. Under cross-examination, Palmer testified that simply shutting off the valve would not have caused any damage to the pipeline. It did, however, cause significant loss of production for the company, which was essentially the intent of the valve turners. Palmer testified that each of the two pipes the defendants turned off was capable of transporting as many as 33,000 gallons of oil an hour. Since the company had to shut down the pipelines for eight hours following the incident, the valve turners effectively delayed the transportation of more than half a million gallons of oil.
         Rogalla also showed a video the defendants filmed the day of the incident. It showed the defendants approach the valve site and then call an Enbridge representative on the phone to explain what they had done and why they did it. "For the sake of climate justice and to ensure the future for human civilization, we must immediately halt the extraction (and) burning of Canadian tar sands," defendant Joldersma could be heard saying on the video while on the phone with Enbridge.
         The defense requested to have the case dismissed before it ever brought forth any of its own witnesses, even though Regan said her clients wanted to testify. The defense also intended to invoke the "necessity defense," which would have allowed them to claim they performed the crime as a way to prevent greater harm. Since the judge dismissed the charges early, the defendants did not get to use the defense they had planned.

       "I also admit that I am disappointed that we did not get to put on the trial that we hoped for," Johnston said.
             In October 2017, Tiffany ruled the defendants could use the necessity defense, but prosecutors appealed that decision all the way to the Minnesota Supreme Court, which declined to hear the case. By doing so, the high court essentially backed the Minnesota Court of Appeals, which had sided with the defendants.
         Requesting the dismissal also may have been an early exit strategy for the defense since it had sustained a blow earlier in the day. Tiffany ruled the defense's expert witnesses could not testify on the effects of climate change, explaining it could prejudice the jury.

    In addition to the three defendants in Clearwater County, there was an activist from at least one of the other valve turner trials who came to court Tuesday. Michael Foster spent time in prison for his part in a similar event in North Dakota.
         The valve turners have been at least somewhat successful in communicating their core message in the two years since they carried out their plan against pipelines. In February, the New York Times Magazine published a 6,400-word story on the environmental activists who were involved in the coordinated act of civil disobedience, including both Johnston and Klapstein. A writer from Wired Magazine was on hand for Tuesday's proceedings.


    •*** Minnesota judge dismisses case against oil pipeline 'valve turners', by Jordan Shearer, 8 October 2018, Duluth Tribune (Minnesota)

       Editor's note: This article, written by the same reporter as the above, is the same except for these additional paragraphs at the end:

    ... The defendants and their legal team fielded questions on the courthouse steps shortly after the judge made his announcement.
         Joldersma stood with his 8-year-old daughter, indicating it was partly for her generation that he helped take part in the valve-turner activism.
         Klapstein said the time frame in which climate change can be reversed is continuing to narrow and they will continue to work toward mitigating its effects. "We did this two years ago, and things have only got massively worse since then," Klapstein said. "Would I rule out civil disobedience again? Absolutely not."


    •*** Minnesota Judge Tosses Charges Midtrial Against 3 Activists, by Steve Karnowski, 9 October 2018, ASSOCIATED PRESS, in Minneapolis Star Tribune and Great Falls Tribune

       EXCERPTS: A Minnesota judge abruptly dismissed charges against three climate change activists during their trial on Tuesday, saying prosecutors failed to prove that the protesters' attempt to shut down two Enbridge Energy oil pipelines caused any damage.
         Clearwater County District Judge Robert Tiffany threw the case out after prosecutors rested their case and before the protesters could use their defense: that the threat of climate change from using crude oil drilled from Canadian tar sands was so imminent that the activists' actions were not only morally right, but necessary.
         ... Their attorney, Lauren Regan, acknowledged outside the courthouse in Bagley that she and her clients were surprised that the judge granted their motion to dismiss the case. The three defendants faced felony charges involving criminal damage to critical public service facilities. They could have faced up to a year in jail, according to prosecutors.
         "I'm very relieved the state of Minnesota acknowledged that we did no damage and intended to do no damage," defendant Emily Johnston said. "I also admit that I am disappointed that we did not get to put on the trial that we hoped for."
         Clearwater County Attorney Alan Rogalla declined to comment afterward.


         ... "We did everything in our power to make sure this was a safe action, and we did this to protect our children and all of your children from the devastating effects of climate change," Klapstein said at the activists' news conference afterward.
         While the judge took the unusual step of allowing the necessity defense in a ruling last October, he said the defendants had to clear a high legal bar to succeed. He said the defense applies "only in emergency situations where the peril is instant, overwhelming, and leaves no alternative but the conduct in question."
         The valve turners had hoped to put climate change itself on trial by presenting expert witnesses who would have backed up their claims that climate change was making natural disasters worse, and that the threat of climate change from Canadian tar sands crude — which generates more climate-damaging carbon dioxide than other forms of oil — was so imminent that they had no legal alternatives. But they never got the chance.

    PRESS RELEASES BY THE VALVE TURNERS (Climate Direct Action) are available here:

    • October 7: As Landmark 'Climate Necessity Defense' Trial Opens Today in MN, Shocking Last Minute Court Ruling Silences Scientists Scheduled to Provide Expert Testimony.

    • October 9: MN Valve Turners Acquitted On All Charges In Landmark Climate Necessity Defense Trial


    •*** Climate politicking isn't working. We need climate civil disobedience , OP-ED by Bill McKibben, 9 October 2018, L.A. Times

       FULL TEXT: The small town of Bagley, Minn., looked set to be the scene for one of the nation's most interesting airings of the climate controversy this week. Three people went on trial there on Monday for shutting down a pipeline from Canada's tar sands in 2016 — one of them, after warning the company, turned the valve that shut the pipe, and then they sat and waited for the police to arrive. They were arrested and charged with felony destruction of public property.
         The judge had originally signaled that they would be allowed to mount a full "necessity defense," and argue that climate change presented such a severe threat that they had little choice but to break the law. On Friday, however, he decided not to allow the team of expert witnesses — including me — to testify about the main points at issue: the danger of global warming, the lack of alternatives to civil disobedience and the effectiveness of direct action. Then on Tuesday, after a jury had been selected, the judge dismissed the case, announcing that the activists' actions didn't meet the seriousness of the charges.
         I'm glad the protesters in Minnesota aren't facing 10 years in prison, but it's almost too bad. The case for climate activism needs to be made. If I'd had the chance to testify, here are the points I would have tried to impress on the jury.

    First, it is as bad as the scientists say, and you don't need to know a thing about degrees Celsius or parts per million CO2 to understand why. As we've burned fossil fuel, we've raised the temperature, and now we're feeling the results. Last year, Hurricane Harvey dropped more water than any storm in the history of the country — 60 inches in parts of Houston — because warm air holds more water vapor than cold. This year Hurricane Florence broke every rainfall record for the East Coast. This is not some future threat — it's happening right now, and absolutely anyone can imagine what it would be like to have five feet of rain fall on your roof.   The victims of these changes are now numerous, and they are concentrated among those who have done the least to cause the problem: People forced to migrate because their islands are sinking beneath ocean waves or because their farms have withered in the face of devastating drought, for instance. Polar bears too, but by no means polar bears mostly.
         Second, our political system is not working to address the challenge. Some of us have been trying for 30 years to make change in the obvious, rational ways. We've met with politicians, testified before Congress and legislatures, written letters to politicians and to newspapers, organized seminars. And gotten not much of anywhere — the U.S., famously, has withdrawn from the Paris climate accords.
         This political problem is not confined to America, which produces more fossil fuels than any other country. Russia, which comes in second, poisons critics of its government, including its energy policies. Saudi Arabia, which is third, is now apparently dismembering critics of its oil-saturated regime. Around the world, carbon emissions continue to rise. Politics as usual seems not to be working to address the climate emergency, save for a few outliers like California or Norway. And a few outliers is not enough.
         Lastly, much of what progress has been made toward mitigating climate change has largely come through protest. When demonstrators went to jail in record numbers against the Keystone XL pipeline, they not only stopped its construction but fired up people around the world to take similar steps against every new piece of fossil fuel infrastructure: Kayakers blocked Shell's drilling rigs in the Seattle harbor, for example, which led to the company's retreat from plans to open the Arctic to oil drilling. Pension funds and endowments worth $7 trillion have begun divesting their holdings in fossil fuel companies — Shell said in a recent report to shareholders that that movement had become a "material risk." In other words, protest has weakened the very industry that has made political progress on climate change all but impossible. It's the long campaign of deceit and misinformation by the oil industry, above all else, that is responsible for our governments' inaction.
         And like peaceful protest during the civil rights movement, civil disobedience has helped shift the zeitgeist away from the idea that coal, oil and gas are the natural and obvious sources of power for our societies. Protest helps overcome the inertia that is slowing our transition to cheaper solar and wind power. If normal politics ever does work on the issue of climate change, it will be in part because it's been prodded by the unconventional kind.
         These points are logical, I think. Necessity of the most desperate kind motivated the three activists who were on trial in Bagley, and they were right to turn the pipeline valve. In another sense, though, it's clearly crazy that people have to risk going to jail to make these points. Science has been offering us an unambiguous warning for three decades. As a society, and as a planet, we decided to ignore it. And we prosecute the people who remind us of our failings.
         The valve turner and her compatriots should have been judged not guilty in Minnesota. But the system under which we live is still on trial, and the verdict is all too clear.


    •*** Judge shoots down climate necessity defense at last minute, yet acquits pipeline protesters , by Mark Hand, 10 October 2018, Think Progress

       FULL TEXT: A Minnesota court on Tuesday acquitted "valve turners" Emily Johnston and Annette Klapstein of all charges, in a landmark jury trial that permitted the use of a climate "necessity defense" — until a last-minute change of mind by the trial judge.
         After the prosecution had made its case against the two activists, Clearwater County, Minnesota District Judge Robert Tiffany surprised the court by abruptly ruling that prosecutors had failed to meet their burden of proof that the activists had damaged a tar sands pipeline when they trespassed on private property to shut down two Enbridge Energy oil pipelines in 2016 by turning the wheels at an above-ground valve site.

    Tiffany dismissed all charges against the defendants. Johnston and Klapstein were facing up to 10 years on felony counts related to the incident, and Benjamin Joldersma, part of their support team, faced misdemeanor charges for assisting them.
         The case, however, was also seen as a significant test of a new type of climate defense strategy. Ahead of the case, the judge accepted that the climate necessity defense could be used by the activists in their case. As part of this, the judge agreed to let expert witnesses corroborate the defendants' testimony that their actions were justified by the need to avert imminent climate catastrophe.
         As it turned out, though, the Minnesota judge acquitted the defendants before they could argue that their actions were necessary due to climate change.
         And only days before the trial was scheduled to begin, Judge Tiffany did an about-face from his earlier decision to grant them the necessity defense. He barred testimony from defense experts who would testify about the barriers to effective political action for addressing climate change and the effectiveness of civil disobedience, similar to the valve-turning action, into historical context.
         "It was shocking and our supporters in the courtroom were ecstatic because we're definitely not going to jail. And we were happy," Klapstein said Wednesday in an interview with ThinkProgress. "But at the same time, we were indeed disappointed not to be able to present this to the jury. We were hoping to educate the jury and the classroom of greater public opinion on the dire issues of climate change."
         It remains unclear why the judge, at the last minute, decided not to allow the use of the climate necessity defense.
         As climate action remains stalled at the federal level, climate activists are increasingly turning to protest and civil disobedience to disrupt fossil fuel infrastructure projects around the country. With those acts of civil disobedience on the rise and the risk of arrest increasing with stricter laws being proposed, more defendants are turning to the climate necessity defense.


    •*** Thankful to Avoid Prison, Acquitted Valve Turners Lament Lost Chance to Defend Planet-Saving Necessity of Pipeline Shutdown , by Jessica Corbet, 10 October 2018, Common Dreams - QUOTES WITHIN:

    EMILY JOHNSTON: "While I'm very glad that the court acknowledged that we did not damage the pipelines, I'm heartbroken that the jury didn't get to hear our expert witnesses and their profoundly important warnings about the climate crisis.... We are fast losing our window of opportunity to save ourselves and much of the beauty of this world. We turned those valves to disrupt the business-as-usual that we know is leading to catastrophe, and to send a strong message that might focus attention to the problem."

       JAMES HANSEN: "It's great that the defendants were found not guilty, but we missed an opportunity to inform the public about the injustice of climate change. Now we need to go on offense against the real criminals, the government.... The government, especially the Trump administration, is guilty of not protecting the constitutional rights of young people. They should have a plan to phase down fossil fuel emissions, but instead they aid and abet the expansion of fossil fuel mining, which, if not stopped, will guarantee devastating consequences for young people."

    ANNETTE KLAPSTEIN: "We were treated more gently by the court than any people of color ever are and we know that is in part because of our white privilege. As older white people we are often in the best position to take the riskier actions.... We know from our young activist friends who are people of color that when they take any kind of direct action, they run the risk of having police showing up and shooting them. And this happens over and over for no reason whatsoever. And when they are arrested they are almost always treated more harshly by the criminal justice system.... We see this in the trials of the indigenous people who were arrested at Standing Rock; many of them have been charged with felonies for doing much less than the valve turners did, and most of them are being convicted and given harsh sentences.... It is absolutely morally unacceptable to me to stand idly by while even one life is sacrificed so that greedy oil company executives and their already rich shareholders and the banks who fund them can continue to make their even more obscene profits at the expense of all life on Earth."

    LAUREN REGAN: "First, the climate necessity defense was upheld by the highest court in the state, which affirmed that these climate activists had the right to assert the climate necessity defense to a jury.... Further, the defendants were acquitted of felony criminal damage to critical energy infrastructure and pipelines. In an attack on our democracy, this law, like others of its kind in 31 states, was pushed through the state legislature at the behest of the fossil fuel industry, which sought to increase the penalties against activists who dared to challenge the profiteering motives of some of the biggest corporations."


    •*** VIDEO: Johnston, Klapstein, Skaggs, and Hansen on Democracy Now, 10 October 2018

       TIMECODES of responses:
    40:26 - Intro
    43:44 - JOHNSTON
    44:28 - KLAPSTEIN
    46:10 - JOHNSTON
    47:09 - SKAGGS
    49:08 - break
    50:50 - HANSEN
    57:54 - JOHNSTON


    •*** VIDEO: Four-minute Minnesota Trial video by STEVE LIPTAY, 10 October 2018

       TOTAL TIME 4:16 minutes

    One month before the Minnesota trial, filmmaker Steve Liptay was suddenly cleared of the misdemeanor charges against him (incurred while filming the valve-turning action in Minnesota in October 2016).

    Thus, he was free to film the trial (outside of the courtroom itself).



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