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In Groundbreaking Ruling, Minnesota Judge Allows Climate Necessity Defense In Upcoming "Valve-turner" Trial
[Bagley, Minnesota – October 17, 2017] In a precedent-setting ruling, a judge in Clearwater County, Minnesota has allowed defendants facing criminal charges for shutting down two Enbridge tar sands pipelines to present a “necessity defense” at their upcoming jury trial. That will permit the defense to call scientists and other expert witnesses, and present evidence on climate harms to support their contention that the immediate threat of catastrophic climate change justified their action.
While this is not the first time a court has approved presentation of the necessity defense in a criminal trial of a climate activist, the ruling is a milestone that will have far-reaching implications. "Only a few courts have allowed presentation of the climate necessity defense, and until Friday, no judge in a jury trial in the United States had recognized the defense in writing,” according to a statement from the Climate Defense Project, a legal nonprofit that provided pre-trial briefing and is part of the defendants’ legal team.
The defendants are climate activists who sought to prevent climate damage by stopping the flow of carbon-intensive tar sands. “Valve-turners” Emily Johnston and Annette Klapstein closed safety block valves on Enbridge pipelines in Clearwater County, Minnesota, on October 11, 2016 as part of the coordinated “Shut It Down” climate direct action, which disrupted all five pipelines bringing carbon-intensive tar sands crude from Canada to the United States.
Two other defendants face criminal charges for documenting Johnston and Klapstein’s action: videographer Steve Liptay and support person Ben Joldersma. They have also been granted permission to present a necessity defense, and will be tried separately from Johnston and Klapstein.
"Finally, we'll get to bring climate experts into a court of law, to describe the distance between our current reality and what physics demands of us if we hope to leave a stable planet for our kids," said Johnston. "Doing so means there's an outside chance we can bridge that distance--and we need every chance we can get."
"What we did is not in dispute,” said Klapstein. “The only question before the jury will be whether our action was necessary to prevent imminent climate catastrophe. Now we'll be able to present evidence connecting the devastation we're seeing--from hurricanes in the Caribbean to wildfires throughout western North America—to an oil-soaked political system utterly failing to respond.”
The first two valve-turners to go to trial -- Ken Ward, in Skagit County, Washington, and Michael Foster, together with media support person Sam Jessup, in Pembima County, North Dakota --were not allowed to present necessity defenses. Ward was convicted of one felony. Earlier this month, Foster was convicted on two felony counts and one misdemeanor, and Jessup of one felony and one misdemeanor charge.
At Ward’s trial, Judge Michael Rickert admitted reluctance in denying the necessity defense, which he said “would be the Scopes Monkey Trial for climate change.” Now, it seems, that “Scopes Monkey Trial for climate change” will happen in Minnesota, where Ninth Judicial District Court Judge Robert D. Tiffany signed the order granting necessity defense on Friday.
Although the standard for allowing presentation of the necessity defense is a high bar in Minnesota, the judge ruled the standard was met in this case. It requires proof that the defendants avoided a significantly greater harm by breaking the law, that there were no legal alternatives to breaking the law, that the defendant was in imminent danger of physical harm, and that there was a direct causal relationship between breaking the law and preventing the harm. As Judge Tiffany wrote in the order granting necessity defense, "The defense 'applies only in emergency situations where the peril is instant, overwhelming, and leaves no alternative but the conduct in question.’”
Climate activist, author and potential expert witness in the Minnesota trial Bill McKibben noted, "The whole planet will be inside a single courtroom the day this trial begins--it's a rare chance to explain precisely why we need to act, and act now.”
Dr. James Hansen, the world’s preeminent climate scientist, is also expected to testify in support of the Minnesota defendants. He traveled to North Dakota to testify in Michael Foster and Sam Jessup’s defense, but was barred from doing so. Hansen called that “an egregious error.” In a brief submitted to Minnesota’s Ninth District Court, Dr. Hansen outlined testimony he expects to offer: “It is my expert opinion that global warming from persistent high fossil fuel emissions is in the danger zone, that CO2 emissions from all such sources must be reduced with all deliberate speed, that the situation is becoming worse with each passing day, and that we are likely approaching climate tipping points from which there is no reasonable prospect of return….[The] defendants by their actions, as I understand them, aimed to prevent the urgent and growing danger, and to turn around the government’s failure to date meaningfully to address it.”
Underscoring the significance of the judge’s ruling, Kelsey Skaggs of Climate Defense Project added, “This is an important step forward in the legal side of the movement to stop fossil fuel extraction. By recognizing the strength of the defendants’ arguments in favor of direct action, the court acknowledged both the scope of the climate crisis and the people’s right to act when their leaders fail them. This decision will make it easier for other courts to follow suit.”
Johnston and Klapstein’s trial is scheduled to start December 11. They each face charges of criminal damage to critical public service facilities and aiding and abetting same (both felonies), and misdemeanor criminal trespass and aiding and abetting same ( both misdemeanors). The charges carry a potential maximum penalty of over 20 years in jail and fines up to $40,000.
Ben Joldersma, who placed calls to Enbridge before Johnston and Klapstein closed the valve to help ensure the pipeline would shut down safely, is charged with conspiracy to commit criminal damage to critical public service facilities, and aiding and abetting the same. Both are felonies which carry five years maximum in jail and combined maximum fines up to $15,000. Steve Liptay, a documentary filmmaker who filmed the Johnston and Klapstein’s action, faces gross misdemeanor charges of trespass on critical public service facility, utility or pipeline, carrying up to two years in jail and fines up to $6000.
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