Press Release 10.9.18 - Acquitted On All Charges

FOR IMMEDIATE RELEASE: October 9, 2018
Interviews Available!

Contact:
Celia Alario: 310-721-6517 celiaalario@gmail.com
Alec Connon: 206-258-9176 alecconnon@gmail.com

Judge Throws Out All Charges Against Climate Defenders

MN Valve Turners Acquitted On All Charges In Landmark Climate Necessity Defense Trial

BAGLEY, MN -- District Court Judge Robert Tiffany acquitted defendants of all charges today in the Clearwater County case of two “Valve Turners,” Annette Klapstein and Emily Johnston, and support person Ben Joldersma. Judge Tiffany ruled that the prosecution failed to demonstrate any evidence of damage to two Enbridge pipelines. Klapstein and Johnston faced state felony charges for their part in the “Shut It Down” climate direct action two years ago, in which climate activists successfully disrupted all five pipelines carrying Canadian tar sands crude oil into the United States.

The acquittal came a week after the climate activists were preparing to present a “climate necessity defense,” with expert testimony in areas including pipeline safety, climate science, climate policy and the efficacy of civil disobedience. The expert witnesses would have corroborated the defendants’ testimony that their actions were justified by the need to avert imminent climate catastrophe. However, in a stunning about-face last week, the court forbade all expert testimony related to climate change and civil disobedience, while still allowing safety testimony, and possibly testimony to direct, non-climate impacts of tar sands extraction and pipelines.

“The Judge found what I was about to tell the jury: that these defendants caused no damage to the two pipelines they closed. Indeed, they acted out of concern for communities that are harmed by fossil fuel pipelines, and the climate emergency,” said Dr. Anthony Ingraffea, an expert who authored the American Pipeline Institute pipeline safety guidelines.

“While I'm very glad that the court acknowledged that we did not damage the pipelines, I'm heartbroken that the jury didn't get to hear our expert witnesses and their profoundly important warnings about the climate crisis,” said defendant Emily Johnston, 52, a Seattle resident and poet. “We are fast losing our window of opportunity to save ourselves and much of the beauty of this world. We turned those valves to disrupt the business-as-usual that we know is leading to catastrophe, and to send a strong message that might focus attention to the problem. We will continue to do that in every peaceful way we can; the stakes are far too high for us not to," Johnston added.

With the acquittal, the case establishes two important legal precedents.
"First, the climate necessity defense was upheld by the highest court in the State, which affirmed that these climate activists had the right to assert the climate necessity defense to a jury,” said Lauren Regan, Executive Director of the Eugene Oregon-based Civil Liberties Defense Center.

“Further, the defendants were acquitted of felony criminal damage to critical energy infrastructure and pipelines. In an attack on our democracy, this law, like others of its kind in 31 states, was pushed through the state legislature at the behest of the fossil fuel industry, which sought to increase the penalties against activists who dared to challenge the profiteering motives of some of the biggest corporations,” Regan said.

Dr. James Hansen was another of the expert witnesses scheduled to give testimony. “It's great that the defendants were found not guilty, but we missed an opportunity to inform the public about the injustice of climate change. Now we need to go on offense against the real criminals, the government,” said Former NASA Chief Scientist Dr. Hansen. “The government, especially the Trump Administration, is guilty of not protecting the constitutional rights of young people. They should have a plan to phase down fossil fuel emissions, but instead they aid and abet the expansion of fossil fuel mining, which, if not stopped, will guarantee devastating consequences for young people.”

“As older white people, we acknowledge that our white privilege may have resulted in better treatment in the legal system than activists of color often receive. That is why it is important for people of privilege to take bolder risk on behalf of the planet” said defendant Annette Klapstein.  “There are lives in the balance, thousands of people are already dying from the effects of climate change and if we don’t put a stop to it, it will be millions within a few short years. It is morally unacceptable to me to stand idly by while even one life is sacrificed to the greedy oil company executives and their already rich shareholders and the banks who fund them can continue to make their even more obscene profits at the expense of all life on earth,” Klapstein added.


FURTHER QUOTES AND STATEMENTS

Ben Joldersma, defendant, software engineer and father of three:


“Standing up to the oil corporations is scary, and while my wife and I were aware of the risk we were taking, in the face of the things we will lose we knew being in support of Emily and Annette was the right decision. So, 20 or 30 years from now, as the world descends further into climate chaos and our kids ask us what were we doing in 2018, we can look them square in the eye and honestly tell them we did everything we could.
While I’m glad the court acquitted the three of us I am disappointed not to take the stand. In the two years since the action, more than one billion barrels of tar sands oil have passed through Lines 4 and 67 here in Minnesota. We are in a climate emergency that presents the gravest threat our civilization has ever faced and we have just a few short years to make some very hard changes. The good news is that if we as a people do that work it could be a powerful engine for our economy, creating 65 million good new jobs and eliminate the Fossil Fuels Tax: trillions of dollars in health care and disaster recovery costs from air pollution and climate change.”

Annette Klapstein, retired attorney and grandmother:

I want to acknowledge that we were treated more gently by the court than any people of color ever are and we know that is in part because of our white privilege. As older white people we are often in the best position to take the riskier actions because we will be treated more gently. We know from our young activist friends who are people of color that when they take any kind of direct action, they run the risk of having police showing up and shooting them. And this happens over and over for no reason whatsoever. And when they are arrested they are almost always treated more harshly by the criminal justice system.
We see this in the trials of the indigenous people who were arrested at Standing Rock many of them have been charged with felonies for doing much less than the Valve Turners did, and most of them are being convicted and given harsh sentences, such as a several years.
Because I was a lawyer and spent many years working within the legal system, I know how poorly the legal system sometimes works for ordinary people and how incapable it is of adequately addressing some issues. Ultimately, I decided to take this action because my conscience would not let me do otherwise. There are people all over the world who are already losing their homes and even their lives to the catastrophic effects of climate change - they have no choice but to deal with the climate emergency we are now in. So I feel that morally, I have no choice either.
There are lives in the balance, thousands of people are already dying from the effects of climate change and if we don’t put a stop to it, it will be millions within a few short years. Every life is precious and it is absolutely morally unacceptable to me to stand idly by while even one life is sacrificed so that greedy oil company executives and their already rish shareholders and the banks who fund them can continue to make their even more obscene profits at the expense of all life on earth. I did this because I have tried every legal possibility many times - I would not have chosen to break the law if I had any other effective alternative - but we are almost completely out of time to turn this around and I believe it is absolutely my moral duty to step up and put my body on the line to stop these fossil fuel corporations from destroying the very basis of life on earth.
I have very mixed feelings about het verdict. On the one hand I am very happy to have been acquitted and quite frankly to be off of bail so that I that don’t have to be so careful about committing other acts of civil disobedience. I’ve been very careful for the past two years while on bail because if I was arrested I might have been taken back to the Clearwater County jail to await my trial.
We are in a dire and desperate time, the widow of opportunity to turn around the climate catastrophe is now rapidly closing. We have at most maybe two years. According to the recent IPCC report, and as basically all the climate scientist have told us, this is the time, and if we don’t do it now it will be past the tipping point, and state of climate catastrophe will be permanent, until the point that virtually all life on earth will be extinct.
Dr. Anthony Ingraffea, author of the American Pipeline Institute pipeline safety guidelines:
“I was to testify concerning two essential elements of the case. The first was whether Emily and Annette damaged the pipelines. They did not, as the judge ruled, damage the pipelines. The flipside of that is the question: Do pipelines and the petrochemical products they deliver damage, increase risk or harm anybody? The answer to those questions is an emphatic yes.”

Kelsey Skaggs, Attorney and Executive Director, Climate Defense Project:

“This case is about an act of civil disobedience. As part of the necessity defense, we were prepared to present evidence that civil disobedience is an effective way to influence social and policy change. Our expert witnesses would have testified about the rich tradition of civil disobedience in the United States--including the abolition of slavery, the women’s suffrage movement, and the Civil Rights Movement of the 1960s--and the important role of civil disobedience in fighting fossil fuels”

Alice Cherry, Attorney and Co-Founder, Climate Defense Project:

Although the defendants were disappointed that they were unable to present their case to a jury, the acquittal is a significant step forward for activists who have increasingly turned to the court system to press their demands for action on climate change. In three cases involving Valve Turners in other states who coordinated their actions with the Minnesota activists, defendants were convicted after being denied the opportunity to present a necessity defense. In Minnesota, today’s courtroom victory follows a lengthy effort to defend the activists’ right to argue climate necessity, a battle which went all the way to the state supreme court.”

Press Release 10.08.18 - #ClimateTrial Day 1

For immediate release. For media inquiries contact: Celia Alario, celiaalario@gmail.com, 1-310-721-6517.

Note: Because charges and potential penalties, while remaining very serious, have been reduced since they were mentioned in previous Valve Turner press releases, we list current Minnesota changes here

As Landmark ‘Climate Necessity Defense’ Trial Opens Today in MN, Shocking Last Minute Court Ruling Silences Scientists Scheduled to Provide Expert Testimony

Bagley, MN – A groundbreaking ‘climate necessity defense’ trial of Valve Turners Emily Johnston, Annette Klapstein, and their support person Ben Joldersma begins today in Clearwater County, Minnesota. The three are standing trial for their role in a coordinated action in 2016 that shut down every tar sands crude pipeline coming into the United States. The action temporarily halted the flow of 2.8 million barrels of oil, which according to a report from Reuters was equivalent to 15% of daily U.S. oil consumption. 

The trial has been delayed for over a year as the prosecution sought to overturn the District Court’s earlier written ruling expressly allowing a necessity defense, a decision upheld by a MN appeals court, and affirmed by the State’s Supreme Court. 

Yet, in a stunning, 11th hour reversal by the court, attorneys Lauren Regan (Civil Liberties Defense Center ), Tim Phillips, and Kelsey Skaggs (Climate Defense Project) will be prohibited from calling their full suite of planned expert witnesses including climate scientists Dr. James E. Hansen, Dr. Mark Seeley and Dr. Peter Reich; public health expert Dr. Bruce Synder; renowned climate and policy experts Dr. Martin Gilens, Harvard Law Professor Lawrence Lessig, nonviolent direct action historian Jamila Raqib, Executive Director of the Albert Einstein Institution and 350.org cofounder Bill McKibben; and oil infrastructure expert Dr. Anthony Ingraffea. The experts were poised to testify on the overwhelming threats of climate change, and why the Valve Turners’ actions were not only right, but necessary in today’s challenging political paralysis.

Indicating that he believed that it would be confusing information for the jury, the court barred testimony from defense experts on the barriers to effective political action for addressing climate change, the efficacy of civil disobedience historically, and the imminence of climate change.

“I’m baffled by the surreal nature of this court’s decision and timing,” said Annette Klapstein. “We were looking forward to entrusting this case to a Minnesota jury of our peers to decide after hearing expert scientists and social scientists discuss the facts of climate change and public policy. By requiring us to establish the necessity defense, without allowing us to use our planned expert testimony to do so, the court has placed an overwhelming burden on us.”

“Four days before trial, for no apparent reason, the court eviscerated our defense, and essentially overruled itself,” defendant Emily Johnston, a Seattle-based poet, said. “It is impossible for us to properly defend ourselves without expert testimony.” 

“The irony is that the judge may be proving our point—we acted as we did because we know that the paralysis and myopia of the executive and legislative branches with regard to climate change mean that the political system itself must be shaken up if there is to be any hope for all of us. We were hoping that the judiciary might show the way,” Johnston added.

The trial is expected to complete this week. If the jury is allowed to consider this testimony, it will be the first time a 'climate necessity defense' has been considered in a US jury trial.

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For more on the action and the trial: http://www.shutitdown.today/

Daily updates during the trial will be posted on the Shut It Down Facebook page.

On Twitter, follow @ClimateDA and @enjohnston, as well as the hashtags #ClimateTrial and #FossilFuelsOnTrial for the latest. 

 

Background and Resources

Check out these short videos of Emily and Annette, and see bios for all the Valve-Turners here.   

See this February 2018 piece in New York Times Magazine for an in-depth look at the Valve-Turners and check out other media coverage of the actions and previous Valve-Turner trials here.

More on this Climate Necessity Defense here and here.

Info about prior Valve Turner Cases: In Washington, Valve Turner Ken Ward had one hung jury on two charges, and, on a split verdict in a second trial, was found guilty of one count of burglary, and sentenced to time served and 30 days of community service. Ken's conviction has been appealed on the basis that he was denied a necessity, and will be heard by a Washington appeals court in November.

In Montana, Leonard Higgins was found guilty of criminal mischief and misdemeanor criminal trespass, sentenced to three years deferred imprisonment, meaning he will serve no jail time. Leonard’s conviction has been appealed on the basis that he was denied a necessity defense 

In North Dakota, Michael Foster was convicted of criminal mischief, conspiracy to commit criminal mischief (both felonies) and criminal trespass (a misdemeanor), and sentenced to three years, two deferred, for which he served 6 months. Michael's conviction has been appealed on a question of application of state law. Sam Jessup, who live-streamed Foster’s action, was convicted of conspiracy to commit criminal mischief (a felony) and conspiracy trespass (a misdemeanor), and was required to pay $5,000 restitution.

NOTE TO EDITORS AND PRODUCERS:
The defendants and defense attorneys can comment and grant interviews on request. For further information, to request copies of court documents or to arrange interviews, please contact Celia Alario, celiaalario@gmail.com, 1-310-721-6517.


Press Release 6.18.18

For immediate release. For media inquiries contact: Celia Alario, celiaalario@gmail.com, 1-310-721-6517.

Note: Because charges and potential penalties, while remaining very serious, have been reduced since they were mentioned in previous Valve Turner press releases, we list current Minnesota changes here

[St. Paul, Minnesota – July 18, 2018] The Minnesota Supreme Court yesterday denied a petition from state prosecutors appealing a lower court ruling in 2017 that granted the defense the right to present evidence regarding a “necessity defense” for climate activists who shut off tar-sands pipeline emergency valves in order to fight climate change.

Minnesota Supreme Court Judge Lorie S. Gildea denied the appeal and declined to review the matter further. Her ruling sets an important precedent, because it will guarantee the defense team will be able to present, and the jury will be able to hear and consider, evidence about climate change, including expert testimony on climate harms, to support the defendants’ contention that the immediate threat of catastrophic climate change justified the their action. When the case goes to trial later this year, it will likely be the first time that such a necessity defense of direct action on climate change is 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 had tried many different legal means to do so over many years, to no avail. “Valve-turners” Emily Johnston and Annette Klapstein therefore initiated shutdown of block valves on Enbridge tar sands pipelines in Clearwater County, Minnesota, on October 11, 2016 as part of a coordinated action in four states. The action disrupted five pipelines, temporarily halting the flow of tar sands crude from Canada to the United States.

Klapstein and Johnson 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. Two other defendants, videographer Steve Liptay and support person Ben Joldersma, also face criminal charges for documenting and livestreaming Johnston and Klapstein’s action.

The defendants freely admit they took the action, but have sought the opportunity to justify it in court via necessity defense. If they are successful, it would create a potentially far-reaching precedent for many other cases of climate action working their way through the courts.

"We chose this action because we hoped it could make a real difference in how the public and the legal system respond to the overwhelming threats of climate change,” said co-defendant Emily Johnston. “The Minnesota Supreme Court has validated the decision of the judge in our case, and its ruling means that we might indeed get to make that real difference. It's been a long road, but we're almost there--and not a second too soon."

"I am very happy that the Minnesota Supreme Court chose not to review the lower court’s decision to allow us to present the necessity defense in our case,” said defendant AnnetteKlapstein, who is a retired attorney. “Our right to present and the jury's right to hear the facts about the ongoing and accelerating climate catastrophe have been upheld, and we look forward to presenting this evidence to the jury."

Members of the defense team who will try the case include attorneys Tim Phillips of the Minneapolis law office of Joshua R. Williams and Lauren Regan of the Civil Liberties Defense Center, with assistance from Kelsey Skaggs of the Climate Defense Project. A date for the trial has not yet been set, but it is expected to take place later this year, as soon as October 2018.

Meanwhile, other high-profile cases concerning climate change are coming before in the courts. The trial of Juliana v. US starts October 29, in which young people are suing the federal government for violating their constitutional rights and the public trust by failing to fight climate change. Nine cities and counties in Colorado, California, Washington, and New York, and the state of Rhode Island, have filed lawsuits against fossil fuel companies to hold them accountable for GHG emissions and climate damage (two of the California suits were recently thrown out).


NOTE TO EDITORS AND PRODUCERS:
The defendants and defense attorneys can comment and grant interviews on request. For further information, to request copies of court documents or to arrange interviews, please contact Celia Alario, celiaalario@gmail.com, 1-310-721-6517.


Press Release 4.23.18

For immediate release.
For media inquiries contact:  Celia Alario, celiaalario@gmail.com, 1-310-721-6517.
[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 Halbrooksaffirmed 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.”
NOTE TO EDITORS AND PRODUCERS: 
Sources named in this press release can comment and grant interviews on request. For further information, to request copies of court documents or to arrange interviews, please Celia Alario, celiaalario@gmail.com, 1-310-721-6517.

Press Release 3.20.18

 

No jail time for climate activist who shut off tar sands pipeline to prevent climate harms 

[Fort Benton, Montana --March 20] Today in Chouteau County District Court, Leonard Higgins, the 66 year-old retired Oregon state worker turned climate activist who shut off a tar sands pipeline to fight climate change, was sentenced to three years deferred imprisonment, meaning he will serve no jail time. He was also ordered to pay restitution of $3,755.47. The prosecution sought $25,630 in restitution, but the sentence followed the recommendations of the defense.

 Higgins was convicted in November 2017 of criminal mischief and misdemeanor criminal trespass, charges which could have carried a sentence of up to 10 years in jail and fines of up to $50,000.

As he openly admits, on October 11, 2016, Higgins cut two chains to enter a fenced enclosure around the Enbridge (formerly Spectra) tar sands pipeline in Coal Banks Landing, Montana, and turned the emergency shutoff valve. He is one of five climate activists who simultaneously shut down pipelines in four states as an act of civil disobedience, temporarily halting the flow of all tar sands from Canada into the US, disrupting 15% of US daily oil supply. These “valve turners” selected those pipelines because tar sands is the most carbon-intensive, climate-damaging form of oil, and thus for them, burning it constitutes an emergency. A two-minute video about the action is posted here.

There is no dispute about the facts of the action Higgins and others took. On the contrary, they were open and deliberate, alerting the pipeline companies in advance of the shut down, allowing time for the companies to shut down the pipelines themselves, in some cases. Higgins and his fellow activists live streamed their actions and then waited calmly for police to arrive and arrest them.

“His motivations were not selfish, but selfless,” said defense attorney Lauren C. Regan, one of Higgins’ defense attorneys and the founder and executive director of The Civil Liberties Defense Center, in her statement before the court. “He attempted to act out of the public interest, not to harm anyone. He was in Chouteau County to try and prevent catastrophic climate change that will eventually affect the good people of this county just as it is already impacting island nations, the Arctic, and coastal regions around the globe.”

“This is not a crime for which he received any benefit,” said presiding Judge Daniel Boucher. “He should have this removed from his record.”

In Higgins’ statement to the court, he expressed respect for the court and the authority of the judge, and took responsibility for trespassing, cutting two chains to enter the pipeline enclosure, and accidentally damaging a metal plate on an electric motor in his act of civil disobedience. He pointed out that his was an act of conscience.

“The facts of climate science, the tragic impacts of changes already under way, and the negligence of government in responding drove me across the line from a public employee to someone who would consider civil disobedience,” Higgins said. “There is strong evidence that we may have already crossed this line. Today I’m here in part because of my faith in the courts, in humanity and in the law. I say this not to ask for leniency from the court but to ask to stand here and take responsibility for the actions which I have taken.”

Higgins and his attorneys signaled that they planned to appeal his conviction, because he was not permitted to mount a “necessity defense,” which would have argued that his action was necessary and justified in order to prevent climate harms much worse than the consequences of trespassing and interfering with the pipeline. Granting necessity defense would have allowed the defense to call expert witnesses and present evidence on climate change and the climate harms done by tar sands. Before trial Higgins’ defense team petitioned Chouteau County District Court and the Montana Supreme Court to allow it to mount such a defense, but both petitions were denied without hearing.

“I appreciate the chance to present the intent of my action more fully than I was able to at my trial,” Higgins said today, a reference to the fact that the jury was not permitted to hear evidence pertaining to climate change. “I look forward to appealing to the court for my 6th Amendment right of a full defense to present my case again with the full scope of information available,” he said.

 

“It is highly likely we will file notice of appeal to challenge denial of necessity defense,” said Regan.  “But for that denial, we may not have even been here today. There could have been a very different outcome [in] the jury’s deliberations if they had been allowed to use necessity defense in their decision making process.”

 

Two other valve turners, Ken Ward, who acted in Washington state, and Michael Foster, who acted in North Dakota, were also denied the right to a necessity defense, and convicted on felony charges. Ward was convicted of second-degree burglary and sentenced to community service with no jail time. Foster was convicted of criminal mischief, conspiracy to commit criminal mischief (both felonies) and criminal trespass (a misdemeanor), and sentenced to three years in prison, including two deferred. He is serving time now. Both have appealed their convictions, partly because necessity defense was denied.

 

However, the necessity defense was recently granted to fellow valve-turners Emily Johnston and Annette Klapstein, whose trial is pending in a Minnesota court and expected to take place this summer. It’s the first such written decision in a climate case in U.S. history. Leading experts in the fields of climate science and civil disobedience will testify for the defense. Immediately following the Minnesota decision, necessity defense was again granted in a climate action case in Spokane, Washington.

Necessity defense in climate cases is a rapidly evolving area of law, the stakes of which are rising as climate change accelerates, and as more citizens protest fossil fuel extraction and expansion amid an intensifying crackdown on protest and citizen action.

2017 was the third hottest year on record and saw record storms, droughts and forest fires. In February this year, Arctic temperatures soared above freezing. More pipeline protests generating more arrests of activists have sprung up nationwide, including against the Line 3 pipeline expansion in Minnesota, the Bayou Bridge Pipeline in Louisiana, the Trans-Pecos Pipeline in West Texas, the Diamond Pipeline in Memphis, the Sabal Trail Pipeline in Florida, and others. At the same time, several states have passed laws that would criminalize and toughen penalties for peaceful protest and non-violent direct action. More states are considering such measures.

That makes the trials of Higgins and his fellow climate activists important precedents. More such trials are coming, with more serious charges and penalties at stake. The Civil Liberties Defense Center and the Climate Defense Project are working on appeals in the valve-turner cases, and to advance climate necessity defense in general.

 
 

 


Press Release 2.6.18

For media inquiries contact: Celia Alario, celiaalario@gmail.com, 1-310-721-6517.

Climate activist Michael Foster sentenced to three years in prison (two deferred) for shutting off Keystone tar sands pipeline in North Dakota

[Cavalier, North Dakota – February 6, 2018] Climate activist Michael Foster is going to jail  for shutting off the emergency valve on TransCanada’s Keystone 1 tar sands pipeline in North Dakota. This morning in Pembina County Court, Judge Laurie A. Fontaine sentenced Foster to three years in prison, including two years deferred.  Barring a motion to delay, he will begin serving his sentence today.    

For his act of shutting off the Keystone pipeline, Foster was convicted on October 6th, 2017 of misdemeanor trespass and felony criminal mischief and conspiracy to commit criminal mischief.  Those convictions carried a potential maximum penalty of 21 years in prison.

TransCanada and the State of North Dakota had both pushed for a harsh sentence to deter other climate activists (the prosecution recommended five years). Foster's act was part of a simultaneous, coordinated action in four states to shut off all major tar sands crude pipelines entering the United States. Today’s sentence comes 16 months after the original October 11, 2016 action, which temporarily stopped the flow of tar sands bitumen into the US --  the equivalent of 15% of daily domestic oil consumption.

A 53-year-old mental health counselor from Seattle, Foster has no prior convictions. He decided to take the action to shut off the Keystone pipeline after spending five years giving presentations on the climate emergency to over 13,000 people, spearheading litigation, and starting multiple climate groups, including Plant-for-the-Planet, which engages children in tree planting.

"I made a decision to commit civil disobedience to defend my family tree and yours, knowing that there is no government, no politician, no corporation on planet right now putting forward a plan to defend life as we know it,” Foster said in a pre-sentencing interview. “My kids and yours won’t survive this mess if we don’t clean up all this.”

Reacting to the sentence, Foster said, “It doesn’t matter if I’m sitting in jail. What matters is stopping the pollution. If other people don’t take action, mine makes no difference. And if they don’t, the planet comes apart at the seams.The only way what I did matters is if people are stopping the poison.”

Foster’s co-defendant Sam Jessup was convicted of conspiracy to commit criminal mischief (a felony) and conspiracy trespass (a misdemeanor) for helping Foster by livestreaming his action. Those convictions carried a total potential maximum of 11 years, but Jessup will not be going to jail. Today he was sentenced to two years in prison with both years deferred and supervised probation.

At trial, Foster and Jessup’s legal team petitioned to be allowed to present the “necessity defense,” a legal defense which acknowledges that the defendants technically violated the law, but argues that it was permissible because they did so to prevent a much greater harm, in this case the harms that tar sands, the most carbon-intensive form of oil, do to the climate. It would have allowed the defendants to call expert witnesses and introduce testimony about climate change for the jury to consider. But Judge Fontaine refused to permit it.


Press Release 11.23.17

For media inquiries contact: Celia Alario, celiaalario@gmail.com, 1-310-721-6517.

BARRED FROM DISCUSSING CLIMATE CHANGE IN COURT, CLIMATE ACTIVIST LEONARD HIGGINS GETS FELONY CONVICTION FOR SHUTTING OFF A TAR SANDS PIPELINE

[Fort Benton, Montana – November 22, 2017]  In a remarkably short trial in Montana’s Chouteau County District Court lasting just a day and a half, the jury found Leonard Higgins, a retired Oregon state worker turned climate activist who shut off a tar sands pipeline to fight climate change, guilty of felony criminal mischief and misdemeanor criminal trespass.  The conviction carries a maximum possible sentence of 10 years in jail and fines of up to $50,000.  A sentencing hearing is scheduled for January 2, 2018. 

Higgins openly admits that on October 11, 2016, he cut two chains to enter a fenced enclosure around the Enbridge (formerly Spectra) tar sands pipeline in Coal Banks Landing, Montana, and turned the emergency shutoff valve.  In fact, he and others called the company to alert them to obviate any safety problems, and a supporter filmed and livestreamed the action, after which they both waited to be arrested. 

The case made national news. Higgins’ action was part of a coordinated effort that simultaneously shut off tar sands pipelines in four states, temporarily halting all flow into the US of tar sands, which is the most carbon-intensive and climate damaging form of oil. In addition to being prosecuted in state court, Higgins and his fellow “valve turners” were recently the target of a letter signed by 84 members of Congress to the Justice Department, asking pointedly why it hadn’t also prosecuted them under federal law, and whether their actions met the definition of domestic terrorism under the Patriot Act. Earlier this month Reuters reported the letter and the Justice Department’s response “could escalate tensions between climate activists and the [Trump] administration.” 

But Higgins, a mild-mannered 65-year-old who says he acted out of conscience to help prevent climate harms for the sake of his children and grandchildren, was the opposite of confrontational.   He expressed gratitude for his day in court and the chance to share his story and spend Thanksgiving with friends and supporters who attended the trial, “in such a beautiful place."  He pleaded guilty to misdemeanor trespass and doesn’t dispute the facts of what he did, but argues that the imperative to prevent climate harms justified his action. He was not permitted to make that argument in court, however.

"I'm happy for the opportunity to share why I had to shut down this pipeline, and I really appreciate the time and dedication of the jury and the judge,” Higgins said. “I was disappointed and surprised by the verdict, but even more disappointed that I was not allowed a ‘necessity defense,’ and that I wasn't allowed to talk about climate change as it related to my state of mind. When I tried to talk about why I did what I did I was silenced. I'm looking forward to an appeal."

"We're disappointed that Mr Higgins was denied the opportunity to present a full defense and explain to the jury why he took his courageous action,” said Kelsey Skaggs, Executive Director of the Climate Defense Project and member of Leonard's legal team.  “Because of the fossil fuel industry's enormous influence, activists fighting for the future are being convicted while the real climate criminals walk free."

Before trial, Higgins and his defense team filed a motion with the Chouteau County District Court and a petition to the Montana Supreme Court asking permission to offer a “necessity defense,” and argue before the jury that his action was necessary in order to prevent climate harms much more severe than the consequences of trespassing and turning the pipeline emergency valve. It would have allowed the defense team to bring in expert witnesses and evidence on climate change and the climate impacts of tar sands oil. Such a climate “necessity defense” was recently granted to Higgins’ fellow valve-turners Emily Johnston and Annette Klapstein, whose trial is pending in a Minnesota court and in a similar case in Spokane, Washington. 

But Judge Daniel Boucher, who presided in the trial, denied without a hearing Higgins’ requests for a necessity defense, calling them a “mistaken attempt” “to place U.S. energy policy on trial.”  That ruling meant Higgins’ jury was barred from hearing or considering evidence about the climate harms that motivated him. 

In court, Higgins himself was also prevented from discussing climate change or explaining that he was motivated by the need to prevent climate harms.  In fact, whenever he used the word "climate" in his testimony, the prosecutor objected and the judge sustained the objection.

So without using the word “climate,” Higgins sought to convey that his action was a matter of conscience, answering a call he felt to do something effective to prevent the harms tar sands cause. "I began to reactivate in my church, and thought about what I could do to atone, frankly, for just paying attention to my own comfort and success," he said.  When asked by the prosecutor what he expected to be the repercussions of turning off the pipeline, Higgins responded, “Two things: to face the consequences, and to use this chance to talk about the problem."

By “the problem,” Higgins meant the problem of accelerating climate change amid continued exploitation of carbon-intensive fossil fuels.  In the wake of Standing Rock, more pipeline protests have sprung up nationwide, including against the Line 3 pipeline expansion in Minnesota, the Bayou Bridge Pipeline in Louisiana, the Trans-Pecos Pipeline in West Texas, the Diamond Pipeline in Memphis, the Sabal Trail Pipeline in Florida, and others. At the same time, the crackdown on the protests is intensifying. So far this year, several states have passed laws that would criminalize and toughen penalties for peaceful protest and non-violent direct action. Another 20 states are considering such measures.

That makes the trials of Higgins and his fellow climate activists important precedents. More such trials are coming, with more serious charges and penalties at stake.  “As [more people] see examples of people putting aside the comforts and the complacency,” said Higgins, “they’ll feel the same compulsion, the same duty to take action, to do what’s right.”

NOTE TO EDITORS AND PRODUCERS: Video of Leonard Higgins reacting to the verdict is posted here. Higgins, Kelsey Skaggs and other knowledgeable sources are available for further comment on request.  For more information or to arrange interviews, contact Celia Alario, celiaalario@gmail.com, 1-310-721-6517.


Press Release 10.16.17

For media inquiries contact: Celia Alario, celiaalario@gmail.com, 1-310-721-6517.

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.   

#   #   #

NOTE TO EDITORS AND PRODUCERS:  Sources named in this press release can grant interviews on request.  For further information, or to arrange interviews, please contact Stephen Kent, skent@kentcom.com 914-589-5988


Press Release 10.6.17

For Immediate Release

After Judge Refused to Allow Climate Change Experts To Testify In Their Defense, Climate Activists Michael Foster and Sam Jessup Are Convicted on Felony Charges in North Dakota Court for Shutting Off the Keystone Tar Sands Pipeline

For media inquiries contact: Celia Alario, celiaalario@gmail.com, 1-310-721-6517.

[Cavalier, North Dakota – October 6, 2017] The landmark trial of Michael Foster, a mental health counselor in his 50s from Seattle, just ended in conviction on several felony charges for his action of shutting off the emergency valve on the Keystone 1 tar sands pipeline in North Dakota to fight climate change.

Foster was convicted in North Dakota’s Pembina County District Court of criminal mischief, conspiracy to commit criminal mischief (both felonies) and criminal trespass (a misdemeanor). He was acquitted on the charge of reckless endangerment. The convictions carry a total maximum sentence of 21 years.

Foster’s co-defendant Sam Jessup, who livestreamed Foster’s action, was convicted of conspiracy to commit criminal mischief (a felony) and conspiracy trespass (a misdemeanor). His convictions carry a total maximum sentence of 11 years.

Foster and Jessup are out on bail awaiting sentencing, which is scheduled for January 18. The presiding judge, Laurie A. Fontaine, has ordered a pre-sentencing investigation on both defendants.

Reacting to the verdict, Foster said, “We're here to change everything--the laws, whether it's legal to pump tar sands, whether we can defend our young. I've been here in North Dakota a month trying to listen and learn, and I know we have to start these conversations. But the courtroom is for combat, and couldn’t allow us to make a defense that undermines the written codes, even in order to defend life. Unfortunately, we're out of time. Our kids can't wait any longer for us to shut this stuff down."

"I'm feeling so relieved and peaceful right now," Foster added. "I'm grateful to the jury for wrestling with this for several hours. There were some tearful faces in there, I think they were taking it as seriously as they could."

Foster is one of five of #ShutItDown “valve-turners” who acted simultaneously in four states and successfully shut off the flow of tar sands bitumen from Canada into the US -- the equivalent of 15% of daily US oil consumption. They targeted tar sands because it’s the most carbon-intensive, climate-damaging form of oil.

"I still think that if the people of North Dakota were given the opportunity to consider the facts of the climate crisis with the same kind of rigor that lawyers use in a court of law to put evidence before a jury, that they would recognize the emergency," said co-defendant Sam Jessup. "Our government is not responding to this crisis... It's important to find ways for the American people to have the right to deliberate on the greatest crisis we've ever faced."

The trial made national news because it probed the question of whether Foster, Jessup and other climate activists whose trials are pending would be allowed to cite evidence and testimony about climate impacts of carbon-intensive fuels like tar sands to show their actions were motivated by the need to prevent climate damage.

Foster wrote in a Newsweek column this week: " The prosecution...moved to block me from presenting evidence of climate danger, the main reason I acted. Prosecutors argue jurors might be biased by hearing about climate change, or being shown evidence of how dirty fossil fuels like tar sands affect it, and what those impacts mean for North Dakotans and all of us.. ..As a matter of justice, it’s fundamental to have that discussion, and cite evidence to support it, in front of a jury."

That discussion was disallowed by the judge. Dr. James Hansen, perhaps the leading authority on climate change in the US, travelled to North Dakota to testify, because, as he said, "I'm the one who said tar sands are 'game over' for climate, and here [is Michael Foster] facing trial for trying to do something about it." But Hansen and other climate change experts were barred by Judge Fontaine from testifying for the defense. Hansen also prepared written expert testimony, which is available on request. It finds that North Dakotans and all Americans are in serious danger from climate change, unless "meaningful action to confront the crisis" is taken now, especially on tar sands.

“I wonder what the jury would have said if Hansen and the other expert witnesses had been allowed to testify?” said Emily Johnston, a fellow valve-turner whose trial for shutting off the emergency valve on the Enbridge tar sands pipeline is pending in Minnesota. She and her co-defendant retired attorney Annette Klapstein each face charges of criminal damage and criminal trespass, and aiding and abetting both, carrying up to 22 years in jail and fines of up to $46,000.

Ken Ward, valve turner in Skagit County, Washington, was convicted of burglary at a June trial, after two trials in which the judge refused to allow a necessity defense. Leonard Higgins, a retired Oregon state government employee, faces felony charges carrying up to 10 years in jail and fines of up to $50,000 for shutting the emergency valve on the Spectra Energy Express oil sands pipeline in Montana. His trial is scheduled for late November.

NOTE TO EDITORS AND PRODUCERS:

Foster, Hansen and other sources mentioned in this release are available for interviews on request. For more information, or to arrange an interview, contact Stephen Kent, skent@kentcom.com , 914-589-5988


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