Valve turners Emily Johnston, Ben Joldersma and Annette Klapstein before their necessity defense trial in MinnesotaValve turners Emily Johnston, Ben Joldersma and Annette Klapstein will tell a jury their pipeline shutdown was necessary to stop climate change. Photo credit: Shutitdown, via Facebook

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By Seamus McGraw

Two years after activists forced their way onto a remote piece of private property in western Minnesota to forcibly shut down an oil pipeline, their case is finally going to trial and the judge threw a twist into the proceedings right at the beginning.

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.  

The three activists on trial, the so-called valve turners, could face up to 10 years in prison. Their defense revolves around whether their actions were justified because of the clear and present danger posed by climate change and the peculiar risks posed by tar sands oil. The pipeline carried oil from Alberta’s tar sands to the U.S.

The defendants, Annette Klapstein and Emily Johnston, are facing several felony charges. A third defendant, Benjamin Joldersma, who assisted them, is facing misdemeanor charges. Misdemeanor charges against a fourth person, videographer Steve Liptay, who documented the action, have been dropped. They were part of a multistate protest in October 2016 dubbed #shutitdown.

Their case gained widespread attention among climate activists and legal scholars earlier this year when a state appeals court cleared the way for the defendants to use a novel and controversial strategy— the so-called necessity defense—to argue that the peril posed by climate change was imminent and destructive enough that the defendants had no choice but to take immediate action. The defendants must also prove that they had exhausted all other legal options to confront the peril.

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.

Jury selection will continue Tuesday morning. Opening arguments in the case are expected to begin Tuesday afternoon.