Press Release 2.6.18

For media inquiries contact: Celia Alario, [email protected], 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, [email protected], 1-310-721-6517.


[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, [email protected], 1-310-721-6517.

Press Release 10.16.17

For media inquiries contact: Celia Alario, [email protected], 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.   

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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, [email protected] 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, [email protected], 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.


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, [email protected] , 914-589-5988

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