Press Release May 11, 2017
IN LANDMARK CLIMATE ACTIVIST TRIALS, JUDGES DENY DEFENDANTS’ REQUESTS TO LET JURIES HEAR EVIDENCE ABOUT CLIMATE CHANGE
[Mount Vernon, WA – May 11] — In the landmark case of Ken Ward, one of several climate activist facing severe felony charges for shutting the emergency valves on pipelines carrying oil sands, Judge Michael E. Rickert of Skagit County Superior Court in Washington state has for a second time denied the request for a “necessity defense.”
The necessity defense is an established legal defense in cases where a defendant acted to prevent greater harm. But Judge Rickert’s decision bars Ward’s defense team from using it, and arguing before a jury that his actions were necessary to prevent worse climate harms. It further prohibits the defense from calling expert witnesses and submitting evidence about the impact of climate change.
Ward freely admits that he entered a Kinder Morgan TransMountain oil sands pipeline facility near Anacortes, Washington and turned an emergency shutoff valve. In fact, he notified the company in advance, livestreamed his action, then waited for the police to arrive. As a result he faces felony charges of burglary, criminal trespass, and sabotage carrying decades of potential jail time and fines of up to $21,000.
Ward acted in conjunction with other “Shut It Down" valve turners who simultaneously did likewise in and Minnesota, Montana and North Dakota. They were responding to a call for action from the Standing Rock pipeline protest in North Dakota. Together, these five activists plus four helpers succeeded in temporarily halting the flow of carbon-intensive Canadian oil sands into the US.
The facts of Ward’s case are established and not in dispute. What is at issue is whether Ward’s actions were justified since he acted to prevent worse climate harms from the use of carbon-intensive oil sands, and whether he has the right to make that case before a jury. He contends that since he worked in the climate movement for decades and exhausted all legal avenues to reduce fossil fuel exploitation and greenhouse gas emissions, to no avail, direct, principled citizen climate action is legally justifiable and “necessary.”
The first time Judge Rickert ruled to deny Ward the necessity defense was in late January, before Ward’s first trial. In the pre-trial hearing, the judge questioned the existence of climate change, saying, “ “there’s tremendous controversy over the fact whether it even exists. And even if people believe that it does or it doesn’t, the extent of what we’re doing to ourselves and our climate and our planet, there’s great controversy over that.” Rickert’s ruling prevented the jury from hearing Ward’s full defense including evidence about imminent harm from climate change. But Ward did testify about the motives for his actions, and the first trial ended in a hung jury, as one or more jurors refused to convict him. Judge Rickert declared a mistrial and scheduled a second trial for May.
In the pre-trial phase of Ward’s second trial, the defense submitted a motion to reconsider the necessity defense, citing ample evidence that the existence of human-caused climate change is an established fact that should not be kept from the jury. The prosecution filed a response which again questioned the existence of climate change, saying, “ Some would even argue that [climate change] is not a true threat to begin with, as there are clearly different sides to the issue." Copies of the defense’s motion and the prosecution’s response are available on request. Ward’s second trial is scheduled to start the week of May 22.
“The Constitution guarantees the right to a complete defense, and juries are supposed to decide whether or not a defendant’s conduct was justified,” said Kelsey Skaggs, a staff attorney at the Climate Defense Project and a member of Mr. Ward’s defense team. “It’s disconcerting to see a judge impose his own opinion about the value of protest so as to limit these fundamental rights.”
“While presenting a necessity defense in court would enable Ken Ward to tell the full story of his act of conscience, this is not a setback.” said Marla Marcum, Director of the Climate Disobedience Center. “Ken’s poise and determination in taking decisive action to avert climate cataclysm was the necessary thing to do, and is still the necessary thing to do. He will continue to inspire people across the country to do what’s needed in the face of government inaction.”
Meanwhile, last month in Fort Benton, Montana, Judge Daniel Boucher of Montana’s Twelfth Judicial District Court similarly denied a necessity defense to Leonard Higgins, another “valve turner” who acted simultaneously with Ward. He faces charges of criminal trespass and criminal mischief (a felony) 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 Coal Banks Landing, Montana. Like Ward, Higgins notified the company in advance, documented his action and waited for law enforcement. As in Ward’s case, the judge also ruled testimony about climate change and civil disobedience “irrelevant” in Higgins’ case. Higgins trial is currently scheduled to start July 18.
But the necessity defense has been deemed relevant and used successfully by climate activists before, and some legal scholars say the case for applying it to climate action is getting stronger all the time as climate change becomes more obvious, and climate action gets more urgent while massive expansion of the fossil fuel industry aided by massive government subsidies continues, despite decades of clear scientific evidence of climate harms. Climate scientists project that at the current rate of greenhouse gas emissions, in just four years we’ll blow past the Paris climate agreement’s goal of holding global warming to 1.5 degrees Celsius.
Valve-turner trials now getting underway are important test cases and could set far-reaching precedents for the legal status of US citizen direct action on climate change.
Four more climate activists who face charges for taking part in a related “valve turner” action Minnesota, Annette Klapstein, Emily Johnston, Ben Joldersma, and documentarian Steve Liptay, are also pursuing a necessity defense. Their pre-trial hearing is scheduled for May 30 in Clearwater County District Court in Bagley, Minnesota.
NOTE TO EDITORS AND PRODUCERS – Ken Ward, Leonard Higgins and other “valve turner” defendants and sources are available for interviews on request. Copies of documents filed in Ward’s and Higgins’ cases are also available on request. For updates on the trial dates and developments, go to www.shutitdown.today. To request interviews, court documents or further media information, contact Stephen Kent, [email protected], 914-589- 5988.