By Ben Jervey, GOOD Magazine
KEN WARD NEVER DENIED THAT HE BROKE THE LAW. Facing a possible 20 years in prison for taking bolt cutters to an oil company’s property and manually shutting down a pipeline that funnels tar sands crude to refineries in Anacortes, Washington, Ward showed the jury a video of exactly how he did it. How he cut the chain on the pipeline’s valve wheel and closed it down. Despite the uncontested facts of the case, and the fact that the presiding judge had denied Ward the use of a “necessity defense” that would legally justify his otherwise illegal actions, the jurors were unable to come to unanimous agreement. A mistrial. Today, Ward walks free awaiting a retrial.
Ward was one of five climate activists arrested that October morning for shutting down four different tar sands pipelines. Together, they cut off roughly 15 percent of the crude oil imported into the U.S. for nearly a day. There was no physical risk to these actions—in fact, the activists called the pipeline companies before shutting down the valves to ensure that no equipment would be damaged, nor any oil spilled. But the legal risk was significant. All five face felony charges and tens of thousands of dollars in fines. Ward was the first to face trial, and the outcome was stunning.
While representing himself on trial, Ward had hoped to use the “necessity defense”—a legal argument that essentially states that a defendant should not be held liable for an illegal action if it was necessary to prevent a greater harm from occurring. The judge, who had publicly doubted the legitimacy of climate change as a threat, denied the necessity defense, leaving Ward in an awfully precarious position.
Unable to prove the legal necessity of his actions, Ward doubled down on proving the moral necessity in his self-defense, hoping to at least reach the consciences of a few jurors. That, as he told Wen Stephenson in The Nation, “I would see at least one or two jurors feel bad about it—come over to us, maybe have a few tears in their eyes, maybe be willing to say in public that they really wrestled with this.”
When the jury came back hung, Ward was “astonished”:
At least some of the jury agreed with us that avoiding climate cataclysm is a more important problem than enforcing the letter of the law. We did not get exactly what I wanted, because we were not able to offer the necessity defense. But bottom line, the jury was presented two possible stories here: They were presented with the choice between cataclysm and the simple, normal application of the law. And some of them saw a greater need.
So how did Ward win over the jury, or at enough of the jurors to bring about the mistrial? With an authentic narrative and simple visuals of climate science.
Ward spoke of the urgency of climate action, citing Dr. James Hansen’s seminal 2005 paper on the growing potential for massive and rapid sea level rise, A Slippery Slope.
And he entered into the record a few simple visuals. First was the video of the coordinated actions, including those he took in Washington, laying bare the fact that he did indeed break the law.
Ward also shared a NASA chart showing 400,000 years of carbon dioxide levels in the earth’s atmosphere, which reveals the truly staggering abnormality of the present moment, and undercuts the oft-uttered claim that “the climate is always changing.”
To make it personal for jurors, Ward included a map of potential sea level rise in Skagit Country, where the trial was held. Using Climate Central’s Surging Seas mapping tool, Ward forced the jurors to consider the physical fate of their region in the face of five feet of sea level rise. While these projections are all over the map, the increase represents a slightly higher than middle-of-the-road projection for midcentury, and is a figure that had been cited by the U.S.’s top climate envoy to the United Nations climate talks in Marrakech.
Projected 5' sea level rise impact on Skagit County map show to the Skagit County jury.
Ward emphasized that the targeting of pipelines hauling tar sands crude was deliberate, and used a chart from the Carnegie Institute to show how oil derived from the Canadian tar sands has the highest life cycle of carbon emissions for any oil.
It worked. At least one morally fierce juror listened to their conscience, dug in their heels, and forced the mistrial. “In my defense, truncated as it was, I was able to present the barest minimum of information outlining and supporting the simplest and direst aspect of the climate emergency: catastrophic sea level rise and why my action can be considered appropriate in the circumstances,” Ward wrote.
The Urgent Need for Direct Climate Action
Nearly seven years ago, Tim DeChristopher—who has since founded the Climate Disobedience Center with Ward and two others to support direct action on the fossil fuel industry—told GOOD how it was the moral responsibility of anyone who understood the climate threat to “be the carbon tax.”
You know how Gandhi said you have to “be the change you want to see in the world.” Well the change that most of us wish to see is a carbon tax, but our leaders aren’t doing that for us, so Gandhi’s call is then for us to be the carbon tax. What does that mean—to “be the carbon tax?” To cost the fossil fuel industry money in any way that we can. Getting in their way, slowing them down, shutting them down. Doing whatever we can to be that tax. It forces our leaders to make a choice—to either be more explicit in their war on the young generation, to to get serious about stopping climate change.
The Shut It Down actions in October were one example of this—they certainly cost the pipeline companies money—but they also churn more energy into a rising wave of civil disobedience in the face of climate crisis. As years go by and emissions continue to rise, eating into our rapidly disappearing carbon budget, the need for tougher action becomes increasingly urgent.
To get in the way of the fossil fuel industries’ business as usual, is to “deny consent,” as Ward’s friend and fellow valve turner Emily Johnston put it.
To understand our power as citizens of the world, we have to remember that in countries where it’s still frowned upon to murder environmental activists, fossil fuel companies cannot operate without our consent. What does that consent look like? It looks like the Standing Rock Sioux deciding not to defend their water and their sacred sites. It looks like Seattle shrugging when an Arctic drilling rig is in our port, and figuring well, they’re going to do it anyway. It looks like Keystone XL being built in 2011, because ranchers and Native Americans and young people across the country believe the industry when its arrogant executives tell us it’s a done deal. It looks like people leaving their money in banks that fund these terrible projects, because they don’t see how it matters, or they think the banks are all equally bad.
In a democracy, passivity is implicit consent.
You don’t have to shut down pipelines or anchor a lobster boat in front of a coal tanker or outbid gas companies for fracking leases (though those are all creative, inspiring ideas!), but to deny consent you must do something. Maybe it’s divesting from your bank if it funds pipeline projects. Maybe it’s fighting a mine in court. Maybe it’s taking breaking the law to help prevent a greater harm. (And if you do get into some hot water for an illegal act, looks like Ken Ward has a few charts that might get you off the hook.)
To learn more about the #ShutItDown action, and the necessity of civil disobedience for the sake of climate survival, be sure to read Wen Stephenson’s interview with Ward and fellow climate activist Emily Johnson, who shut down another tar sands pipeline that October morning in Minnesota. And to support the legal defenses of the five activists, visit their Shut It Down Today site.