[St. Paul, Minnesota – April 23, 2018] The Minnesota Court of Appeals today upheld a Minnesota District Court ruling granting the right to a “necessity defense” for climate activists who shut off a tar-sands pipeline valve in order to fight climate change. The ruling will permit the climate defense team to present evidence to a jury of their peers, including expert testimony on climate harms, to support the contention that the immediate threat of catastrophic climate change justified the defendants’ action.
State prosecutors had appealed the landmark decision to grant necessity defense, issued byJudge Robert Tiffany of Minnesota’s Ninth Judicial Court in Clearwater County in October 2017. But today the Court of Appeals dismissed the State’s appeal and upheld the Ninth District court’s ruling, rejecting the prosecution’s assertion that a necessity defense would undermine its case and “unnecessarily confuse the jury.” The Appeals Court decision,signed by Judge Jill Halbrooks, affirmed the legitimacy of presenting a necessity defense, ruling that “Generally speaking, necessity is an effective defense to a criminal charge ‘if the harm that would have resulted from compliance with the law would have significantly exceeded the harm actually resulting from the defendant’s breach of the law.’”
Today’s decision means that the defense will be able to call scientists and other expert witnesses who will join the defendants in presenting evidence that will prove to the jury that the climate harms of tar sands exceeded the harm of their action, which was nonviolent and only caused very minor property damage to a locked gate. The Judge will instruct the jury that they may consider the necessity of the climate defenders’ actions when deciding whether to acquit them of several charges or not. It will be the first time that such a necessity defense of climate direct action on climate change will be presented to a jury in the United States.
The defendants in the case are climate activists who sought to prevent climate damage by stopping the flow of carbon-intensive tar sands, and tried many different legal means to do so over many years, to no avail. “Valve-turners” Emily Johnston and Annette Klapstein closed block valves on Enbridge pipelines in Clearwater County, Minnesota, on October 11, 2016 as part of a coordinated, simultaneous action in four states. The action disrupted five pipelines, temporarily halting the flow of tar sands crude from Canada to the United States. Two other defendants, videographer Steve Liptay and support person Ben Joldersma, also face criminal charges for documenting Johnston and Klapstein’s action, and will join in the necessity defense.
"I'm very happy about this decision,” said Johnston. “If we get to present a necessity defense trial, and the jury has to grapple with full knowledge of our shared reality, the jig is up for the fossil fuel industry, and the end of their devastating business model comes into much clearer view. I think they'll do everything they can to prevent that. But we're doing our best to stand up for a lot of vulnerable people, and we need our day 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. “As a retired attorney, I am encouraged to see that courts across the country seem increasingly willing to allow the necessity defense in climate cases. 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 judgment of those actions.”
“Our clients have risked their liberty to protect future generations from the growing consequences of climate change, and to help the mass movement of Americans who believe that people and the planet are more important that corporate profits grow," said Lauren Regan of the Civil Liberties Defense Center, one of the attorneys who will be trying the case, along with attorney Tim Phillips of the Minneapolis law office of Joshua R. Williams, with assistance from Kelsey Skaggs of the Climate Defense Project. "It is high time that a jury of regular people had an opportunity to weigh in on this extremely important issue. We are optimistic about sharing our case with this Clearwater County jury and testing the strength of our judicial process.”
“We are looking forward to presenting the first full climate necessity defense in a U.S. jury trial,” Skaggs said. "This is an important opportunity for the legal system to acknowledge the climate crisis, and we are pleased that the appellate court agreed that the jury deserves to hear all of the relevant evidence in this case.”
There is significant momentum in the courts regarding climate change and the right of citizens to act to prevent its devastating consequences. Many high-profile climate-related cases are advancing in the courts.
Two weeks ago, the young people in the Juliana v. US trial were granted a trial date of October 29, despite multiple attempts at delay and derailment by the Trump Justice Department. The same week, the Supreme Judicial Court of Massachusetts handed Massachusetts Attorney General Maura Healey a victory in the state's suit against ExxonMobil. Last month, a judge found thirteen defendants in a pipeline protest in West Roxbury, Massachusetts "not responsible by reason of necessity." Community members engaged in several civil disobedience actions at a controversial liquefied natural gas project in Tacoma, Washington in the last year were acquitted of almost every charge. Last year, a week after the four Minnesota defendants were granted their necessity defense, a 77 year-old minister in Spokane, Washington was also granted the necessity defense in his trial for blockading coal and oil trains.
Johnston and Klapstein’s trial date has not yet been set. They each face felony charges of criminal damage to critical public service facilities and aiding and abetting the felony, as well as misdemeanor criminal trespass and aiding and abetting the misdemeanor. The charges carry a potential maximum penalty of over 20 years in jail and fines up to $40,000.
Climate activist, author and a potential expert witness in the Minnesota trial Bill McKibben said, "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.”
Preeminent climate scientist Dr. James Hansen is also expected to testify in support of the Minnesota defendants. 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.”