TAGS: DELTA 5, CLIMATE, CIVIL DISOBEDIENCE, NECESSITY DEFENSE, OIL TRAINS TIM
DECHRISTOPHER, CLIMATE DISOBEDIENCE CENTER
When the Delta 5 sat in front of an oil train at BNSF Everett Delta
Yard Sept. 2, 2014, we did not expect to stop climate disruption or dangerous fossil
fuel shipments.
By ourselves, that is.
What we did expect was that our act of civil disobedience,
positioning on a tripod and blocking a fossil fuel train, would help generate a
rising crescendo of actions spurring the public pressure needed to address those
deadly threats. After many years when
political response that scales to the challenge has been blocked by big money
and corporate power, we believed that to make the political system work again,
it needs the shock, dissonance and friction of nonviolent civil
disobedience.
That was the essence of our necessity defense, the first to be
argued in a U.S. climate or fossil fuel-connected civil disobedience trial, and
only the second climate necessity trial in the world. In 2008 Greenpeace
climbers who scaled a coal plant stack in Britain were found
innocent on the basis of climate necessity. Like this Brits we argued that
any crimes we committed were necessary to avert greater climate and fossil fuel
harms. The trial took place at the
Lynnwood, Washington branch of the Snohomish County District Court Jan.
11-15.
 |
| Delta 5 seated. Trial support team backing them up. |
Climate civil disobedience veteran Tim DeChristopher, live tweeting the event through
the week, later set the trial in perspective. “In an American courtroom activists were
presenting the full case for how serious the climate crisis is, how much our
government has entirely failed to address that crisis, and how powerful people
can be when they step up to their responsibility to stand in the way of the
fossil fuel industry.”
“It was one of the most coherent and comprehensive cases for
climate action that I’ve seen anywhere,” DeChristopher continued. “It’s
a tremendous resource for future activists taking their case to court.”
In our testimony, the five of us recounted the range of legal
actions we took to address climate and fossil fuel threats before we crossed
the line. It was a spanning inventory of
legal citizen activism.
Retired music teacher Jackie Minchew told of his climate-centered
run for Everett City Council and numerous letters and op-eds on the topic
published in the local newspaper, as well as community gardening and logging 8,000
miles on an electric bike.
Abby Brockway, owner of a house painting company, and educator Liz
Spoerri talked of their multiple efforts to keep the Northwest from becoming a
fossil fuel export corridor – letter writing, speaking at hearings,
participating in legal protests. How nothing they did seemed to get through
before the Delta 5 action.
My testimony covered my long history as a professional climate
activist. A founder of Climate Solutions
back in 1998, participant in legislative campaigns and consensus-building
roundtables, co-author of a book
and writer of many papers on practical climate solutions from renewable energy and
electrified transportation to natural carbon sequestration. I related how I am still working on those
solutions through legal currents, and will continue to do so. But that is not enough.
As I told the jury, even though I have seen progress, it hardly approaches
the towering challenge of climate disruption.
I spoke of the need for a World
War II-scale global mobilization to begin rapidly replacing fossil fuels with
solar and wind energy, and to have the job largely accomplished by 2030. That
is the only way we can hope to stay anywhere close to the 1.5°C/2.7°F limit on
global warming set as an aspirational goal in the Paris climate agreement, the
minimum needed to avert runaway climate change and disruption.
Achieving this global mobilization requires massive people power
to overcome the power of corporations such as Exxon, now
documented to have conducted climate science research that accurately
forecasted the impacts, and then a massive lie campaign to stop public action. And
to spur this people power revolution we need the shock to the system provided
by nonviolent civil disobedience. This
was the case I made in my testimony and statements acting as my own
attorney
(For more on why I did the action see my original
post from September 2014.)
Dr. Richard Gammon, a veteran climate scientist and our expert
witness on the topic, reinforced the message.
He noted studies in the past two years indicate the tipping
point to massive ice loss in West Antarctic and Greenland has been crossed. Humanity faces major sea level rise already.
Our fossil fuel train experts also laid out a powerful
case. Eric de Place of Sightline
Institute noted the Northwest’s strategic position “pinched” between some of the world’s largest
fossil fuel reserves and growing Asian markets.
Some 20
proposed export projects would ship fuels generating five times the carbon
pollution of the now cancelled Keystone XL pipeline. He
also recounted the railroad industry’s invention of a dangerous new animal since
2010, the bulk oil train serving the shale industry. Derailments have caused 10
fiery explosions and numerous spills over the past few years.
Oil train safety expert Fred Millar noted the speeds at which
easily-punctured oil tanker cars can run with any level of safety is far
exceeded by the speeds railroads believe they need to make money. He also eloquently testified to the capture
of railroad regulatory agencies by the industry. Bellingham physician Frank
James told of the health threats caused by the standard leakage of 0.5-3% of
oil train cargo. BNSF whistleblower Mike Elliott testified how he was fired
after he pressed the railroad on serious safety violations. All options are needed to overcome the power
of the railroad, said Elliott, who is now regularly up against BNSF power as a
rail labor lobbyist working the Washington Legislature.
In the end, the Delta 5 made third base, but we did not score
the full home run. That would have been
an instruction to the jury to consider the necessity evidence. Instead, Judge Anthony Howard ordered the
six-member jury to disregard the evidence and only consider the immediate circumstances
of our act. Did we trespass? Did we obstruct or delay a train?
A necessity defense requires four elements. The judge said we met three. First, defendants believed there was a danger
greater than the crime committed. Second,
the danger was in fact greater than the crime. And, third, we did not cause the
danger. But, in the judge’s view, we did
not prove the fourth element, that there were “no reasonable legal
alternatives.” We always knew that would
be the hurdle. And from the judge’s comments it appears we made our case of
imminent and avertable danger more on oil train dangers than climate.
Judge Howard did deliver some compliments even as he handed down
his ruling: “Frankly
the court is convinced that the defendants are far from the problem and are
part of the solution to the problem of climate change . . . they are tireless
advocates that we need in this society to prevent the kind of catastrophic
effects that we see coming and our politicians are ineffectually addressing. People in the courtroom learned much, including the guy in the black robe.”
In the end we were found guilty of 2nd degree criminal
trespass, for which we will be on probation the next two years, and innocent of
obstructing/delaying a train.
Ironically, though we intended to delay the oil train, the railroad said
it was not leaving until later that night.
Meanwhile, our attorneys proved to the jury that the five trains the
railroad said we did delay were actually stopped by rail managers out of
“safety” concerns.
The defendants met some of the jurors in the hall outside after
the verdict. (Video
here.) They assured us that we would have been found innocent on both
charges if the jury had been able to consider necessity. All six plus the alternate were with us but
were constrained by the very tight instructions given to them by the
judge. They thanked us for what they
learned, and one or two may accompany Abby to the Faith Action Network lobby
day in Olympia.
In my closing statement to the jury, I sought to empower
them. I told them that jurors are the
most powerful people in the courtroom.
No one can second guess them. But
anything that hints at the power of juries to nullify instructions from judges
is strictly verboten. When I told the
jurors they could do anything they wanted to uphold justice, the prosecutor
objected and the judge sustained.
I couldn’t justly tell this story without a large shout-out to
our team of pro bono attorneys, Bob Goldsmith, M.J. McCallum, Bridge Joyce and
Evelyn Chuang. They did incredibly hard
work and put in many hours thinking through legal strategies. They got us close. And Bob’s old partner Jim Roe kicked it all
off. Jim took on many pro bono civil
disobedience cases, and sadly passed away before the trial. Abby sat with a picture of Jim at the
defendant’s table next to me.
We were also backed by supporters who filled the courtroom every
day. The Delta 5 honestly expected a
large first day crowd, but not packed benches and even people sitting on the
floor each day. Their presence heartened
us.
In a way the verdict is the best of both possible worlds, short
of actually gaining the jury instruction.
The innocent verdict on train obstruction undermines an $11,000
restitution claim against us – BNSF owner Warren Buffett hardly needs the money
– though contrary to some reports we are not entirely out of those woods. Meanwhile the guilty verdict opens the way
for an appeal on the denial of necessity.
And we will appeal. Judge Howard
did face an imposing body of case law weighing against the necessity defense in
civil disobedience cases. We hope to set new precedents that broaden the use of
necessity.
In planning my testimony I strained the most to draw the
connection that established the necessity of climate CD. I was least
satisfied with this part of my testimony. Sure we were trying to focus
public attention, and sure we were trying to do it by gaining media
coverage. I tried to explain the need extraordinary acts to gain that
attention. But it was not enough to pass the “no legal alternatives" bar. We are going to have to make a better case that
draws out why civil disobedience is necessary even when there are legal
avenues, how it is needed to make those legal channels work.
In that regard, one of the most important contributions of our
trial might have been an insight from Tim
DeChristopher. Tim has his own climate
disobedience story. For bidding on a
federal oil lease in Utah to stop drilling without having the money to pay for
it, DeChristopher was sent to federal prison for nearly two years. He wanted to
conduct a necessity defense but was shut down by the judge. His experience is the topic of the movie Bidder 70.
Since then he founded the Climate Disobedience Center (CDC)
to support climate CD and necessity defenses, along with Marla Marcum, Ken Ward and Jay
O’Hara. Ken and Jay in 2013 blocked a
ship delivering coal to a Massachusetts power plant with a lobster boat. Marla
organized support for the action. Theirs was the first U.S. climate civil
disobedience necessity defense allowed in court. But as the trial started in 2014, the
district attorney dropped
the charges, said they were right, and went to march with them in the New
York People’s Climate March the next week.
CDC was recently launched publicly to support actions and
defenses such as ours. The Delta 5 were
honored to be the first case CDC supported.
They helped us prepare our communications and legal strategies and were
with us in Lynnwood. The epiphany Tim
had as he watched our testimony could be key to the broader movement. It is about what makes civil disobedience
uniquely necessary.
As listened to the trial Tim hit on what civil disobedience
“does what other forms of activism do not do, and why it has played such a
central role in so many social movements,” he told a post-trial gathering.
“The intent of civil disobedience is to arouse the conscience of a community in
order to build the kind of public pressure that is necessary to resist the
corporate control of our government.”
The essential act of nonviolent CD is deliberately placing one’s self in
a vulnerable position. “That
vulnerability rattles people out of their everyday lives.” Just what is needed in “our apathetic,
disengaged society. It does something entirely unique, and that answers the
question of no legal alternatives.”
The response of the jurors to our case is strong evidence for
DeChristopher’s insight. In our appeal,
we will press the case for the unique and necessary role of civil disobedience
in spurring the public conscience to move on climate and fossil fuel threats.
For years before our Delta 5 action, I experienced growing
frustration at the blockage of political response to climate disruption that in
any way measured to the challenge. At repeated
legislative failures and executive actions that still leave the world on a
course for climate catastrophe. The
recent Paris climate agreement underscores that – a 1.5°C aspirational goal
accompanied by plans that put the world on course to a 2.7-3.5°C global
warming. That would guarantee sea level
rise of dozens if not hundreds of feet, dieback of a large portion of Earth’s
species, and an acceleration of destructive storms and droughts.
Economists believe they can fit climate change into computer
models and measure it in terms of dollars shaved from the gross domestic
product. Historians know better. They have documented how rapid climate change
disrupts human systems in ways that release the horsemen of the apocalypse –
famine, pestilence and war. I have been
reading Global
Crisis, a recent book about the impact of the Little Ice Age on the 1600s
world when rapid global cooling caused chaos from China to Europe and up to
one-third of the world’s people died. I
believe humanity is on a similar course with rapid global warming. That is why
I can no longer abide with business as usual politics that downplays the
dangers or fails to forward the massive global mobilization needed to avert
them. That is why I crossed the line into climate civil disobedience.
We face a monumental political challenge of arousing the world
to act in a very few years. But it is
more than a political challenge. It is a
moral-spiritual challenge that will require a revolution in values. We must move beyond mere intellectual and
political approaches to a frankly spiritual activism, putting our bodies on the
line, taking risks, making ourselves vulnerable, being prepared to make
sacrifices. This, and only this, will
move people to overcome the dark forces controlling the political system, enabling
us to make the rapid changes we must to leave a world with which our children
can cope.
It is up to us. The Delta
5 never expected to do it alone. We need
you. Take action now. Cross the line. Disobey the law to follow a higher necessity. Do it soon. We don’t have much time left.
If you’re interested
in climate disobedience action or support, Rising Tide is a good place to
start:
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