On Jan. 15, Snohomish County Judge Anthony E. Howard handed down sentences to five people who say our political system is rigged to destroy the planet.
The trial was the latest in a series of protests against the increasing volumes of fossil fuels traveling through the Pacific Northwest, bound for Asian markets, despite the considerable damage to regional eco-systems already resulting from climate change, including ocean acidification, loss of snowpack in the Cascades, rising stream temperatures and summer deadzones along the coast.
In September 2014, Abby Brockway, Patrick Mazza, Jackie Minchew, Mike LaPointe and Liz Spoerri locked themselves to a 20-foot tripod at the BNSF railroad’s Delta yard in downtown Seattle. Dubbed the Delta 5, their protest was designed to draw attention to the danger of crude oil on rail lines in the Pacific Northwest, and to their contribution to irreversible climate change.
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In a historic and highly anticipated trial that lasted four days, the Delta 5 were allowed to argue that their action was the lesser of two evils when compared to the status quo. In court shorthand, it’s called the necessity defense. Specifically, the Delta 5 presented evidence and legal arguments showing that their occupation of BNSF property was necessary to protect the public’s safety, calling numerous expert witnesses who testified to the public health risks of oil trains, both in their immediate risks to neighborhoods and to the damages climate change is bringing to Washington state. They included Richard Gammon, professor of chemistry and oceanography at the University of Washington, and Fred Milar, a hazardous-materials expert and former consultant to the railroad industry.
In another groundbreaking lawsuit concluded in November, King County Superior Judge Hollis Hill ruled that the state of Washington had a constitutional duty to uphold the public trust in natural resources and that this created a binding obligation for the state to protect the atmosphere for future generations. In an unusually dire ruling, Hill said, “Survival depends upon the will of their elders to act now, decisively and unequivocally, to stem the tide of global warming … before doing so becomes first too costly and then too late.”
One of the elders in that room was Abby Brockway. Reflecting on the trial, she recalled, “Everybody wants to kick the can down the road. … They said, ‘Well, the Legislature’s supposed to do it,’ and they’re saying ‘No, ecology’s supposed to do it,’ so nobody wants to try.”
Andrea Rodgers, who represented eight youth plaintiffs in the November climate lawsuit, who in turn brought the lawsuit on behalf of future generations, explained: “What Judge Hill said in our case is really important for the world to know: that the climate crisis is real, it’s happening now, and the government in Washington state is not doing anything to address it. And they need to step up and protect the fundamental rights of these people. … People are starting to speak out and defend their own rights in a variety of ways, and hopefully the judges of the justice system will catch up with that.”
Under U.S. law, the necessity defense can be used when a law is broken to protect the public, and no reasonable legal alternative was available. One classic example: A person is trapped in a burning building, and another person breaks down the door to rescue the trapped person. If such a person were ever prosecuted, they could invoke necessity to avoid the charge of breaking and entering. Other classic examples include stealing food to avoid hunger, breaking out of a burning prison, and organizing a mutiny when a ship is unseaworthy.
In 2008, six defendants known as the Kingsnorth 6 cut the power to a coal-fired power plant in Kingsnorth, England, and successfully argued in court that their action was taken to prevent the greater harm of climate change. In a successful application of the “lawful excuse” doctrine – the English equivalent of the necessity defense – the jury agreed with their argument, and the activists were cleared of all wrongdoing.
By combining the imminent threat of oil trains with their long-term contribution to climate change, the Delta 5 became the first ever to argue in a U.S. court that civil disobedience was necessary to slow down climate change.
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The five defendants finished their testimony on Jan. 13, with expert witnesses completing their testimony the following afternoon.
In public statements, Brockway said she felt compelled to take action against oil trains after one of them derailed under the Magnolia Bridge just a mile from her daughter’s school.
“After that day, I realized that I couldn’t wait any longer – I needed to take action,” Brockway said.
By timing the protest a week before a railroad union voted on single-person crews, the Delta 5 had designed the action, the court was told, to send a political message and exercise free speech. Soon after the protest, the union representing conductors unanimously rejected one-person crews in one of the largest voting turnouts in the history of the United Transportation Union. Mike Elliott, a lobbyist with the Brotherhood of Locomotive Engineers and Trainmen, testified Jan. 14 that worker safety would have been compromised by the move and that the Delta yard protest helped affect the vote.
In the United States, past attempts to use such a defense have not been permitted.
In November 2009, Tim DeChristopher was forbidden to argue necessity after disrupting an oil and gas auction run by the Bureau of Land Management, where he won 14 bids for mining rights before being revealed as an activist. At trial, District Judge Dee Benson of Utah refused to allow DeChristopher to argue the necessity defense. DeChristopher served two years in prison.
On May 15, 2013, Jay O’Hara and Ken Ward used a tiny lobster boat to block a 40,000-ton coal barge in Somerset, Mass. After a Massachusetts judge cleared them to use the necessity defense, the district attorney agreed to drop all criminal charges. As he announced the settlement outside the courthouse, District Attorney Sam Sutter held a copy of Bill McKibben’s Rolling Stone article “Global Warming’s Terrifying New Math,” and told the crowd outside, “Climate change is one of the gravest crises our planet has ever faced. In my humble opinion, the political leadership on this issue has been gravely lacking.”
Ward, O’Hara and DeChristopher were all present at the Delta 5 trial in Snohomish County, helping to raise funds and speaking at public events promoting civil disobedience. O’Hara explained, “Our top priority is making sure that those of us who have had the experience of doing this type of work in the movement are able to have the backs of others who are willing to take high levels of risk.” The three activists, together with Marla Marcum, founded the Climate Disobedience Center to support civil disobedience actions and promote use of the necessity defense, which their website describes as “a moral argument couched in the language of criminal law.”
In order to prove they acted out of necessity, the Delta 5 had to meet four conditions: that they were faced with a clear and imminent danger, that they reasonably expected their actions would be effective in addressing the danger, that they did not create the danger they were avoiding, and finally, that there were no legal alternatives that would have been effective in addressing the danger.
Last Thursday, Judge Howard announced that defendants had met the first three conditions of the necessity defense – but not the fourth. As a result, he did not allow the jury to consider whether the defendants acted out of necessity. The next morning the jury returned their verdict: the Delta 5 were found guilty of trespassing and not guilty of obstructing a train, the more serious charge.
In the court recess that followed, three jurors gathered with defendants and their supporters in the halls of the courthouse, thanking them for the action they took and telling them that they would have been acquitted if a necessity instruction had been given.
Hours later, the judge handed down the sentences: none would go to jail, but they would all be on probation for two years.
Brockway explained after the trial, “It wasn’t that we just decided to break the law on a whim, but we tried everything else and we felt like we had no other legal alternative, and that is exactly why we had to break the law – to enforce the law.”
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“Since 1998, I have worked professionally advancing solutions to the climate crisis,” said Patrick Mazza, a co-founder of Climate Solutions. “I have spent a lot of time sitting in front of a computer, trying to stop global warming. But after many years of seeing the climate crisis only worsen, it was time to sit in front of a train.”
DeChristopher criticized the judge’s reasoning Friday evening, comparing it to the Nuremberg defense.
“The judge disregarded the question of sufficiency,” DeChristopher argued. Discussing the classic case of breaking a door to save someone in a burning building, DeChristopher argued, “There’s plenty of other alternatives. … You could call your rural fire department that might be 15 minutes away and hope that they get there in time. You could throw a bucket of water from the stream that’s nearby. You could pee on it. You could spit on it. You could try to blow it out like a birthday cake. … There’s plenty of things that you could do to that fire. The question is: Are any of those things actually going to save the life of that child?”
Mazza articulated the same point during oral argument on Jan 14, observing: “The critical word here is ‘effective.’ In a limited sense, as I testified, I’ve personally seen effects of my work over the years on climate and clean energy. But is it effective in terms of it being a proportional response to what is demanded, what is needed, to truly address the issue? And I have to say it’s not. Because of the way the political system has been twisted and rigged by large corporations, in this case the fossil fuel corporations, we haven’t, we cannot act, it is not reasonable to expect the system to act in proportion to what we really need to accomplish.
“Direct action is kind of a shock to the system. It’s a piece of dissonance, it’s a friction, that sets up a dynamic, that focuses attention, that shows that people are willing to take extraordinary risk, that people are willing to potentially suffer jail and prison time, fines, probation and all the downsides that come with having a criminal record. People are prepared to do that because they see that the system they’re up against is not capable of responding proportionally to the threat we face.”
DeChristopher said Judge Howard’s statements also reinforced the point that the government is unable to deal with the climate crisis. When announcing his rejection of the necessity defense, Judge Howard even acknowledged this and said the Delta 5 “are tireless advocates who we need in this society to prevent the kind of catastrophic effects that we see coming and that our politicians are ineffectually addressing.”
Despite this, he emphasized that he was bound by precedent, and therefore instructed the jury to ignore the expert testimony that summarized those catastrophic effects and the urgent action that will be needed to address them – in effect, instructing the jury to temporarily join the political mainstream, ignoring the warnings of scientists and safety experts.
In his closing statement to the court, Mazza addressed the jury, arguing that its decision did not actually depend on the judge.
“Ultimately you don’t have to explain your decision to anyone,” he said. “No one can second-guess you. You can’t get into trouble for any decision you make. As the judge just told you, you’re the sole judge of what you’ve heard.”
He added, “We don’t have a computer sitting in here; we have human beings.”
Minutes earlier, the prosecuting attorney, Adam Sturdivant, had told the jury, “You must not let your emotions overcome your rational thought process.”
Although the defendants have not yet made any formal declaration, Brockway said she is very much looking forward to an appeals trial, and believes they will have a better chance at winning in a higher court, where existing precedent can be challenged.
Local attorney Stu Sugarman, who has represented political defendants in Multnomah County for the past 20 years, said he has often won cases of civil disobedience on the basis of both necessity and freedom of speech.
In December 2007, Sugarman won a necessity defense for a group called The Seriously Pissed Off Grannies. On April 6, 2007, the group had held a silent vigil at a U.S. Army and Marine recruiting center, where they used red paint to put bloody handprints on the building’s windows. The Grannies argued they were stopping the greater harm of killing young people in a senseless war, and the jury agreed – with the foreman openly criticizing the district attorney’s office for bringing the prosecution.
Reflecting on his success with The Seriously Pissed Off Grannies, Sugarman admitted, “I can’t tell you the reason why the Seriously Pissed Off Grannies got the necessity defense, because we never expected to win. But you argue it, and there it was: The judge allowed us to argue it before the jury … and the jury agreed with us: that the protesters should never have been prosecuted because they were working for a just cause. And it is just a beautiful defense if the jury gets to consider it. I couldn’t tell you of any magic wand we waved to make it work. Sometimes the judge agrees with you … and that’s it.”
No one can predict whether the Delta 5 will win on appeal, or whether their argument will gain ground in other parts of the country. But like Portland’s fossil fuel export ban, the action of the Delta 5 is unprecedented, and what it lacks in certainty, it makes up for by speaking directly to the problem. As the effects of climate change continue to stack up, and the accepted ways of reforming policy fail, it might be efforts like these that create lasting change.