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