Valve turners Emily Johnston and Annette Klapstein threaten to shut down Enbridge Line 67 in October 2016 and are using the necessity defense in their case.Valve turners Annette Klapstein, left, and Emily Johnston won the right to use the necessity defense in their trial for threatening an Enbridge oil pipeline. Photo credit: shutitdown.today

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By Seamus McGraw

No one—least of all the defendants—disputes the facts of the case against four people known as valve-turners: activists who trespassed on private property to shut down an oil pipeline in 2016. As their otherwise straightforward case goes to trial in October, it’s their defense that has everyone’s attention.

It was a cool, gray and wet October morning two years ago, when four people armed with a bolt cutter, cell phones, a video recorder and a mission, slipped onto a piece of property in the sleepy, conservative western Minnesota community of Leonard. Through it ran a pipeline owned by the Canadian company Enbridge Energy, which carries tar sands oil from Alberta.

Part of a multi-state protest in 2016 dubbed #Shutitdown, their goal was straightforward: to force Enbridge to shut down the pipeline, which the activists viewed as a serious and imminent threat to the global environment. If the company refused to do so, the activists would turn the valves themselves. Enbridge did stop the flow safely, until the trespassers were arrested.

Annette Klapstein and Emily Johnson 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.

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 Minnesota trial could add another weapon in that arsenal if 12 jurors rule that the tar sands oil flowing through that pipeline posed such a critical and immediate threat to the climate that the activists were justified in their dramatic action to shut it down.

This would be no small feat. The 12 jurors are from a county that in 2016 voted 69.2 percent for a presidential candidate who claims climate change is a hoax.

But the very fact that the appeals court has allowed the defense to be used at all is a victory, according to the valve turners’ defenders.

Ever since six Greenpeace activists, charged with shutting down a coal-fired power plant in Great Britain, successfully used a version of it and were acquitted in 2008,  activists in the United States and elsewhere have been looking for opportunities to use the defense in related cases.

In Minnesota, they’re getting their chance.

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.”

Expert witnesses expected to testify in Minnesota include Dr. James Hansen, the former NASA scientist whose landmark Congressional testimony about climate change in 1988 brought the issue to the American public, and climate activist and 350.org co-founder Bill McKibben.

The defendants and their supporters lauded the appeals court ruling that cleared the way for this defense in court.

“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,” said Klapstein, herself a retired attorney. “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 judgments of those actions.”

The valve turners are being represented by lawyers from the the Civil Liberties Defense Center (CLDC), a Seattle-based legal advocacy group.  Lauren Regan, the group’s lead attorney, said it tried to use the necessity defense in similar cases over the last few years in the states of Washington, North Dakota and Montana, but the courts blocked it. In each of those cases, however, the CDLC—working pro bono in rural counties every bit as conservative as Clearwater—was able to work in enough evidence about the threat of climate change and its clients’ motives to win the sympathy of the juries, if not outright acquittals.

In one of those cases—against Ken Ward, who was charged with sabotage in Washington in a #shutitdown action on the same day— the first trial ended in a hung jury and the second ended with an acquittal on the most serious offense and a conviction, instead, of second-degree burglary. 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.

“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.”

Still, Quigley and other supporters acknowledged that the defendants would have a tough row to hoe to convince a jury that the peril of climate change—which plays out over decades—meets the law’s definition of imminent danger. As Jordan Kushner, the Minnesota attorney who co-authored the amicus brief with Quigley, put it, “You can’t say ‘the world is going to be destroyed in 100 years.’ That’s not going to cut it.’

But others say there is enough flexibility in the language of the Minnesota law for the valve turners to work with. Michael Noble, who heads Fresh Energy, a Minnesota organization that advocates for renewable energy policy, and has been monitoring the case closely, said the word imminent “doesn’t necessarily mean that the ax murderer is chopping down your door with an ax and you’re on the other side of the door. That’s not the only definition of the word imminent.”

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.”

Whether that argument is compelling enough to persuade a jury in a conservative county remains an open question. Regan said she is optimistic. So is Kushner. Moderately. While the necessity defense might find a more receptive audience in Hennepin or Ramsey counties in the Minneapolis-St. Paul region, it could still work in Clearwater.  “Sometimes,” Kushner said, “you get receptive views from people that you wouldn’t expect.”