Delta 5 trial: Making the case for climate disobedience

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.

Mike LaPointe spoke of running the Firewheel Community Coffeehouse, Everett’s activist hotbed, and running for Congress to challenge Rick Larsen’s corporate-power-friendly positions. 

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 2^nd 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:  

Seattle Rising Tide

Portland Rising Tide

Rising Tide North America

WA state climate initiative conflict on road to resolution?

Update:  The answer to the headline question is apparently no, at least for now.  An alternative climate initiative proposal similar to Carbon Washington’s carbon tax, but investing revenues in actions to deal with climate change instead of using them for tax cuts and credits, was rejected by the CarbonWA Executive Committee later in the day on Dec. 23.  

Yoram Bauman of Carbon Washington sent this message: “Our Executive Committee met today and discussed an updated (more detailed) version of the alternative proposal. We debated the issues and considered arguments on both sides raised by the Executive Committee and by our grassroots base. After almost 3 hours it became clear that the Executive Committee would not accept the alternative proposal in its current form and that there was no chance of modifying the alternative proposal in the very short time frame remaining that would change the Executive Committee's decision.”

CarbonWA leadership received hundreds of comments regarding the proposal, which could have led to unification of climate movement forces around a single November 2016 ballot initiative.  Many comments were unfavorable to the idea and pressed to move forward with CarbonWA’s Initiative 732.  It appears that the organization will now file its 350,000 signatures in a few days and gain ballot placement.

This leaves more questions than answers.  Will 732 be able to draw sufficient resources to pass? Will the Alliance for Jobs and Clean Energy mount a second climate initiative?  Can we close the divide that has opened up in the Washington state climate movement?  All unknowns.  What this set of events does show is that CarbonWA built a powerful momentum that could not be stopped or re-directed, even though a significant element of its leadership favored moving in a different direction.  Citizen’s movements take on lives of their own.

I was on the losing side of this argument, but I still think it’s valid, and so I will leave the article standing as is. (PM)

It’s been a bumpy political ride in Washington state climate ballot initiative politics over the past year, but after all is said and done the product might the most winnable and effective November 2016 climate ballot measure. 

The break came Monday with an email and blog post from Carbon Washington co-founder Yoram Bauman regarding its Initiative 732 carbon tax signature-gathering campaign.  “We are on the fence about whether or not to turn in our 350,000 signatures because of the emergence of an alternative proposal.”

The CarbonWA board will make the decision between now and Dec. 30. Even though holding back signatures in a successful initiative campaign would be unprecedented, I am throwing my support behind a decision to do so.  This is because the proposal that is emerging has the best chance of overcoming the substantial obstacles that will be put in its way.  The potential is in sight to heal a fractious divide between the grassroots climate initiative and a coalition of progressive organizations aiming at its own ballot measure, the Alliance for Jobs and Clean Energy.  With unity will come the resources and people power needed to put a climate initiative across the finish line.

Even with unified forces, passing a carbon pricing measure at the ballot box is going to be a tough uphill fight.  If Washington achieves this, it will be a global first for any state or province, let alone nation.  Success means overcoming huge fossil fuel industry funding and the historic reluctance of state voters to approve new revenues. Climate community divisions have threatened to sink any ballot measure.

With unity the imperative for any chance of success, I outlined five scenarios to achieve it in a recent Cascadia Planet post.  Scenario #1, CarbonWA withholding signatures and undertaking a unified campaign, began to publicly play out this week.  As anticipated, it came with some pushback from within CarbonWA ranks.  Responses to the blog and in a Tuesday night conference call were mixed.  Some cried betrayal. Distrust of the Alliance, a legacy sown by the year’s conflicts, was strongly in evidence.  But sentiment in support of a unified effort seemed evenly represented.

What moved CarbonWA was polling it did in conjunction with The Nature Conservancy that strengthened a finding in earlier surveys by Alliance-affiliated groups. I-732 did even worse in a poll it helped design than in earlier polls conducted by its opponents. The revenue-neutral carbon tax design of CarbonWA’s Initiative 732 does not poll as well as an alternative measure that invests carbon revenues in clean energy development, clean water and healthy forests.  The odds for passage of the latter are better.  Polling finds that even conservatives and moderates are more swayed by clean energy investments than the tax cuts and credits promised under I-732. (The numbers are in Bauman’s post linked above.)  That and a failure to gain traction among business interests and Republicans swayed CarbonWA leadership to consider alternatives.

Clean energy investments draw support from across the political spectrum.

It makes sense that the way to pass a revenue measure is by associating it with concrete improvements.  A revenue-neutral carbon tax is, let’s face it, a fairly wonky and abstract proposition.  And revenue neutrality has always suffered from voter skepticism that tax cuts will be permanent.  The fear of a “bait-and-switch” is strongest among the conservative and centrist voters to whom revenue-neutrality is meant to appeal.  On the other hand, voters prove consistently willing to vote for revenue measures attached to specific stuff they can see, such as levies for schools and parks.  Clean energy has support across the spectrum, a proposition validated by the recent polling.

Another problem facing the I-732 revenue-neutral proposal is a state fiscal analysis indicating that it might actually be revenue-negative, causing a net loss to state revenues.  Democratic legislators have put up a stern wall of resistance to any such prospect.  CarbonWA contests the analysis, but nonetheless it represents an uncertainty hard to overcome.

Though CarbonWA ranks include many that genuinely believe revenue-neutrality is the way to win conservative and centrist voters, I-732 drew as much support as it did because it offered the only viable carbon pricing measure on the table.  Now that an alternative is emerging, it is likely to pull the vast bulk of I-732 supporters behind it.

One key reason I support the alternative is because it represents a substantial victory for the grassroots climate activist upsurge represented by the CarbonWA campaign. The victory is real. As a condition of withholding their signatures, CarbonWA has secured a commitment from key environmental nonprofits at the core of the Alliance that there will be a carbon pricing measure on the November 2016 ballot. 

Even though the Alliance had announced its intent to run an initiative, it was by no means a certainty.  There was still hemming and hawing over viability and poll numbers within Alliance leadership ranks, as there had been for months.  This was a significant reason why the Alliance did not file its own initiative to the legislature last spring when the governor’s climate bill, which it had been backing, was heading for defeat.  As I wrote in my five scenarios piece, CarbonWA had a much better sense of the climate streets and knew there was energy to carry a grassroots initiative campaign forward.  The group seized the early mover advantage, and achieved signature-gathering and fundraising success exceeding even its own expectations. 

Presented with the fait accompli, groups including Climate Solutions and Washington Environmental Council have been in talks with CarbonWA.  On the table are a campaign governance structure in which they and CarbonWA have equal weight, and an “insurance policy,” the deposit of funds sufficient for Carbon WA to re-run a petition campaign next year based on paid signature gatherers if the other parties do not carry through on their commitments.  Volunteers would not be asked to carry the signature-gathering load again.

Substantial concessions have also been made on policy design, and this is my major reason for swinging behind the alternative.  Unlike the governor’s bill and one of the options considered by the Alliance, it is not a cap and trade, but a straight-up carbon fee with set rates.  Whatever one’s views on cap and trade, effective climate policy or false solution, it never was a good idea to present such a complex proposal to voters.  Divisions in the progressive community over cap and trade plus the fossil fuel industry’s capacity to distort the issue made it particularly vulnerable.  Because of this, I was always skeptical about a political process that would even consider a cap and trade ballot measure as a serious option.  It just seemed that otherwise smart people were not drawing obvious conclusions.

That drew me to the simplified carbon tax of I-732.  It could be explained to voters in a fairly straightforward way.  A tax rate set under law, $25 per carbon ton after two years, would fund a one-percent sales tax cut, a Working Families Tax Credit and elimination of the B&O tax for manufacturers in order to keep them competitive.  It was a classic shift of taxes on goods to taxes on “bads,” in this case carbon pollution, a revenue-neutral system suggested by many experts since the 1980s. 

But, as someone who has studied and worked on climate policy for many years, revenue-neutral was not my ideal. I supported and gathered signatures for I-732 because the top priority is to discourage fossil fuel use by making it pay for its consequences.  What to do with the revenues came in second.  Nonetheless, it is a highly important second. Overcoming the climate crisis will require significant public investments.  It makes sense to fund investments with carbon revenues.  This will reduce carbon pollution to a greater degree than a pure revenue-neutral design.

The alternative proposal that is emerging makes such investments. As of this point, it is still a work in progress.  Assuming the final form substantially reflects the proposal, it is worthy of support. The measure is called a fee rather than a tax, because under the law a fee can be directed to specific programs whereas a tax cannot.  The early fee rate could be lower than I-732’s initial tax, but grow at a faster rate. Revenues would be devoted, in priority order, to:

•       Investments in clean energy and energy efficiency
•       Investments in clean water to adapt to climate impacts on state water resources
•       Investments in healthy forests
•       Tax credits to mitigate the impact of higher energy prices on the lower 40% of families
•       Transition for workers affected by carbon pricing such as refinery workers.

In addition, a requirement that a certain level of funds be invested in disadvantaged communities is part of the alternative.

These investments are likely to allay the concerns of social justice and labor groups that have caused them to oppose revenue-neutral I-732.  They have been strong advocates for the kind of funding envisioned in the alternative. The capacity of the alternative to re-unify these groups with the grassroots forces of the I-732 campaign is one of the most compelling reasons to go for it. 

I will throw down one big caveat.  The forest health piece would allow funding of forest thinning to reduce fire fuels and wildfires. It should not because thinning is generally not a carbon win. Because wildfires largely burn tree surfaces, even large wildfires leave the bulk of carbon on the ground. 

One study finds,  “Although fuel-reduction treatments may be necessary to restore historical functionality to fire-suppressed ecosystems, we found little credible evidence that such efforts have the added benefit of increasing terrestrial (carbon) stocks . . . Carbon losses incurred with fuel removal generally exceed what is protected from combustion should the treated area burn. Even among fire-prone forests, one must treat about ten locations to influence future fire behavior in a single location.”

The forest health provision of any alternative should be written to support only measures documented to actually increase forest carbon storage such as conservation easements and long-rotation forestry.  This will draw universal support from forest advocates, whereas support for forest health thinning will open an avenue of opposition.

I concluded my five scenarios piece with these words: “We should regard it as a triumph that so many people and groups are coming to the climate table firmly committed to take action.  We should all acknowledge each other as people of good will, and seek the best possible outcomes.  We can ill afford a climate policy train wreck.  Let’s do all we possibly can to avert one.”

Both sides of the past year’s climate initiative conflict have indeed shown good will and a common commitment to a win that would be unprecedented – popular ballot approval to create a carbon policy framework.  It is heartening to see people rise above conflicts to seek the undoubted common interest in climate victory.  Coming days will show whether their efforts have born success. 

Make your own comments to yoram@carbonwa.org or to the CarbonWA blog.

TOPICS: CLIMATE CHANGE, CARBON, GLOBAL WARMING, WASHINGTON STATE, INITIATIVE 732, CAP-AND-TRADE, CARBON TAX, CARBON WASHINGTON, ALLIANCE FOR JOBS AND CLEAN ENERGY