The climate movement secured a major victory on October 9 2018 after a judge dismissed all charges against the Valve Turner activists who shut down a tar sands pipeline in northern Minnesota nearly two years previously.
The activists — who were represented by Lauren Regan of the Civil Liberties Defense Center, local counsel Tim Phillips, and Kelsey Skaggs of Climate Defense Project — were prepared to present a climate necessity defense featuring expert testimony on the dangers of climate change and the effectiveness of civil disobedience. After the prosecution closed its case on the second day of trial, however, the judge agreed with the defense that there was insufficient evidence that the activists — Emily Johnston, Annette Klapstein, and Benjamin Joldersma — had damaged or helped to damage the pipeline, and tossed out all remaining charges.
“This victory is an important rebuke to government efforts to punish activists while letting harmful industries off the hook. At the same time, we need to keep fighting to make sure that activists’ voices and rights are respected in the courtroom, particularly for those who are less privileged,” said Kelsey Skaggs.
On October 11, 2016, after months of studying how to undertake their action safely, five climate activists from Washington and Oregon had shut down key pipelines used to transport tar sands oil from Alberta to the United States.
As The Nation noted in an article on the action, “manually closing the emergency shut-off valves on tar sands pipelines in Washington, Montana, North Dakota, and Minnesota … surely stands among the boldest acts of non-violent civil disobedience, on climate or any other issue, in memory.”
The activists stopped the pipelines from pumping as much as 15 per cent of daily oil demand in the U.S., which calculates as roughly three million barrels of oil.
“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,” according to The Nation.
Foster was sentenced to one year, but in the end served six months in a state prison before being released on parole.
The trial for the two remaining valve-turners — Annette Klapstein and Emily Johnston — along with support-team member Ben Joldersma began on October 8.
Implications of ‘necessity defence’
This trial has historic significance because while the previous three defendants were denied the “necessity defence,” the Minnesota court allowed Klapstein, Johnston, and Joldersma to argue that their actions were necessary and legally justified given the harm of climate change.
The necessity defence acknowledges that while technically a crime was committed, it was done to prevent a greater harm.
Rather than proceeding to trial and having witnesses called who could speak to climate crimes, the judge acquitted the three defendants.
But the initial acceptance of the necessity defence could have implications for future anti-pipeline actions in both the U.S. and Canada.
In May 2018, climate activist Tom Sandborn called on B.C. Supreme Court Judge Kenneth Affleck to accept the “defence of necessity” argument after Sandborn was arrested and charged for blocking a gate at the Trans Mountain pipeline terminal in Burnaby.
But Affleck said the “excuse of necessity has no air of reality in these proceedings,” that its use must be “strictly controlled” and that a defendant must show there was “no other viable option” other than the action and that there must be an “imminent risk of an immediate peril.”
And despite the lack of free, prior and informed consent — highlighted in the United Nations Declaration on the Rights of Indigenous Peoples — for the pipeline, and a DARA International study linking 400,000 deaths worldwide each year to climate change, the judge ruled, “The work is lawful and to call it a crime is just a slogan, not an argument.”
Valve-turning in Canada
There have been pipeline valve-turning actions in Canada too.
In December 2015, three men turned off a valve for the Enbridge Line 9 pipeline near St-Justine-de-Newton where it crosses the Ontario-Quebec border. They were charged with mischief, trespassing (breaking and entering), and obstruction.
Then just two weeks later, three women turned a manual hand wheel at a station in Sarnia and interrupted the flow of the pipeline for two hours.
In the latter case, Vanessa Gray, Sarah Scanlon and Stone Stewart were charged with mischief endangering lives, a charge that carries a maximum penalty of life imprisonment, and mischief over $5,000.
In January 2017, after a long court battle, the charges were withdrawn after Gray, Scanlon and Stewart agreed to an 18-month court order to stay away from Enbridge property.
The now-defeated 1.1 million barrel-per-day Energy East pipeline would have been 4,500 kilometres in length with a shut-off valve located every 30 kilometres along the route. That would have been about 150 shut-off valves susceptible to this type of action.
The same would generally still hold true for the 300,000 barrel-per-day Line 9 pipeline that runs about 831 kilometres from Sarnia to Montreal and the Trudeau government’s Trans Mountain pipeline that runs about 1,150 kilometres in length.
“Allowing [the necessity] defence will embolden other activists to commit crimes to further their causes,” stated the Minnesota Chamber of Commerce about the court hearings for Klapstein, Johnston, and Joldersma.
Reflecting on the action, valve-turner Klapstein said: “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.”
Although the defendants were disappointed that they were unable to present their case to a jury, the acquittal is a significant step forward for activists who have increasingly turned to the court system to press their demands for action on climate change. In three cases involving Valve Turners in other states who coordinated their actions with the Minnesota activists, defendants were convicted after being denied the opportunity to present a necessity defense. In Minnesota, today’s courtroom victory follows a lengthy effort to defend the activists’ right to argue climate necessity, a battle which went all the way to the state supreme court.
Among the experts who had been slated to testify in the case were former NASA scientist James Hansen, 350.org co-founder Bill McKibben, Harvard Law professor Lawrence Lessig, and experts on political science, the history of social movements, pipeline safety, and other topics.
McKibbenn, speaking to Climate Cast after the verdict said:
In a surprising move, the judge acquitted the protesters due to insufficient evidence they’d damaged the pipeline.
McKibben said it seems “odd” the case ended due to a lack of evidence. “It seems like they might have been able to figure that out a long time ago,” he said.
Nonetheless, McKibben believes actions like the valve turners’ are crucial for the public in addressing climate change.
He joined Climate Cast for an interview on Tuesday and reflected on the state of climate activism:
Why activism is necessary for action on climate change
Scientists have been offering this warning for 30 years and what’s happened. We’ve reached the point where the United States, historically the biggest emitter of carbon, has withdrawn from the Paris climate accords — the only international effort to get anything done. The 30-year campaign by the fossil fuel industry to misinform people has been pretty successful.Given all that, protest has been one of the few things that’s actually managed to get anything done. Where we’ve made progress, it’s because people have taken to the streets … it’s because people have done all the things that they shouldn’t have to do. In a rational world, it wouldn’t take people going to jail to get government to pay attention to a clear consensus warning from scientists that were facing the deepest problem we’ve ever faced. But in our world, a world poisoned by the power of the fossil fuel industry, apparently that’s exactly what it takes.
I think that civil disobedience is something that is part of the activist toolkit. Only a part. And it’s not a tool you want to use all the time. Like any tool it gets dull if you use a very much. But there are moments when you have to underline the moral seriousness, the urgency of a problem.