Courts Across US Move Closer To Finding Civil Disobedience Necessary To Avert Climate Change
Climate activists are making the case they have no other choice but to take matters into their own hands.
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Boston, MA - Three weeks after a Boston judge found 13 climate activists innocent of blockading construction on a high-pressure fracked gas pipeline by reason of necessity, courts in Washington, North Dakota, Minnesota, and Pennsylvania are responding to activists urging the judicial system to use a unique justification defense for their actions.
The so-called necessity defense is being turned to by communities across the country as they defend their land and climate, arguing that lawful recourse to averting catastrophic climate change and protecting communities is a dead-end. To-date, no US judge has instructed a jury to determine whether actions that disrupt fossil fuel infrastructure are necessary in order to prevent greater harm, but that may be about to change in this rapidly evolving area of the law.
See the Climate Disobedience Center website for background on the judge’s ruling in the Boston case.
Appeal in Seattle
Today in State Appellate Court in Seattle, Washington, another step in the journey toward a full climate change necessity case in the United States will be taken. The court will hear oral arguments in the appeal of the denial of the necessity defense by climate activists known as the ‘Delta 5’. In 2016 the Delta 5 stood trial for blockading a mile long crude oil “bomb train” in Everett, Washington. In their case, Judge Howard permitted their defense to put climate change science, oil train safety and other experts on the stand. However, Judge Howard ultimately instructed the jury to ignore the testimony of those experts. After reaching a split verdict, jurors spoke with defendants and expressed deep regret that they were not allowed to consider the expert testimony in their deliberations.
Abby Brockway of Seattle, one of the Delta 5 activists, said today, “We are fully invested and committed to the long term in this fight. Many would not bother to appeal this far, but we have the potential to pave the way for broader waves of climate disobedience to come. With legislative and executive branches of government across the country in denial of climate realities, this sort of action is more necessary than ever.”
The Rev. George Taylor is scheduled to stand trial April 23-24 in Spokane using a necessity defense. In September 2016, Rev Taylor was joined by Maevea Aeolus and Rusty Nelson in blocking coal and oil trains from passing through Spokane.
In the summer of 2017, Judge Debra Hayes from the Spokane District Court heard testimony from three expert witnesses on safety, climate change, and civil disobedience, and from the defendant, Rev. Taylor, that the reverend's actions to block coal and oil trains was necessary to combat climate change, ensure public safety, and that direct action was warranted because legal alternatives did not exist to deal with the imminent harm of coal and oil trains passing through Spokane.
In October 2017 Judge Hayes granted the climate necessity defense in Reverend Taylor’s upcoming trial. You can find documents related to Rev. Taylor’s trial here:
Lancaster County, Pennsylvania
In Lancaster County, seven activists who stood in the way of pipeline construction on the fracked-gas Atlantic Sunrise pipeline are planning to use a “justification defense” as they head to trial for an October 17, 2017 action. On that day, twenty three members of Lancaster Against Pipelines stood in a chapel intentionally erected in the path of the pipeline on land owned by by local nuns, the Adorers of the Blood of Christ, who cite the first amendment in claiming protected expression of religious freedom.
Last week, in a pre-trial hearing, the judge allowed the activists’ request for a justification defense to move forward, providing them a 60-day window to present expert witness statements for the judges review before determining whether their defense could move forward. The seven defendants have pleaded not-guilty to a misdemeanor charge of “defiant criminal trespass.”
Mandan, North Dakota
Standing Rock water protector Chase Iron Eyes appeared in Morton County Court on April 4th in a hearing for discovery and other motions. Iron Eyes plans to use a necessity defense in his upcoming trial (currently scheduled for November 5, 2018)
According to Indian Country Today, his attorney Dan Sheehan said, “This legal defense is gaining momentum… In our case, it’s a potential landmark for our legal system. We want every climate advocate, every Native rights advocate and every advocate for the Constitution to have this defense at his or her disposal to protest injustices in this nation.”
Attorneys in Iron Eyes’s case expect pre-trial motions on the necessity defense to happen in the early fall, ahead of the scheduled November 5, 2018 trial date.
For more information see the Lakota People's Law Project: https://www.lakotalaw.org/resources/legal-update-from-chase-iron-eyes-attorneys
Minnesota - The Valve Turners
Emily Johnston and Annette Klapstein closed emergency safety valves two Enbridge pipelines in Minnesota carrying Canadian tar sands into the United States on October 11, 2016. They, along with two compatriots Ben Joldersma and Steve Liptay, have been given permission by the court in Clearwater, Minnesota, to present a necessity defense, calling expert witnesses including world renown climate scientist Dr. James Hansen and author and environmentalist Bill McKibben.
The prosecution has appealed the judge’s ruling, and oral arguments on that appeal were heard February 15, 2018. No date has yet been given for the appeals court’s decision or for a trial date.
For more information see: http://shutitdown.today
- Court documents on individual cases is available on request
- Please see the Climate Defense Project for further resources about climate necessity defense: https://climatedefenseproject.org/resources/
- The north-east based Climate Disobedience Center exists to support a growing community of climate dissidents who take the risk of action, grounded in love, commensurate with the scale and urgency of the crisis. More info at http://www.climatedisobedience.org/
- The Oakland based Climate Defense Project is a non-profit public interest law firm filling a gap in the legal landscape by supporting front-line activists, pursuing climate impact litigation, and connecting attorneys with communities and campaigns. More info at https://climatedefenseproject.org/
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We are able to make connections to the above organizations associated with these cases, including attorneys and defendants.