Working simultaneously in North Dakota, Montana, Minnesota, and Washing State, five of the activists “entered fenced-off areas and closed the emergency valves for five pipelines—operated by Enbridge, Spectra Energy, Kinder Morgan, and TransCanada—as Michael Foster, a Seattle based mental health counsellor, described in Newsweek, and on CBC radio. The five activists have been nicknamed “valve turners.”
“I shut off the valve on TransCanada’s Keystone 1 pipeline in North Dakota. We called the pipeline companies in advance to notify them, live-streamed our action to prove it wasn’t a hoax, then peacefully waited for arrest,” he said. Foster has been charged with two Class B felonies and two misdemeanours, and faces up to 22 years in jail. He has pleaded “not guilty,” and his legal team is asking to present what is called a necessity defence.
To make a necessity defence, the accused must prove that they believed their act was necessary to avoid or minimize a harm; that the harm was greater than the harm resulting from the violation of the law; and that there were no reasonable legal alternatives.
Although civil disobedience was not the precipitating factor in Juliana v US, this is the same argument made in Our Children’s Trust case, covered by ClearLife under the heading We the People, in which Anne Aiken, Chief Judge of the US District Court for Oregon said, “Exercising my reasoned judgment, I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.”
Under the name Juliana v US, this “Lawsuit of the Century” in fact bears the weight of a liveable future for the entire generation of children who now inhabit a planet their parents have depleted of the very elements necessary for life—clean air and water and soil, and an awareness of the threat to these elements by their actions, and by their failures to act.
Judge Thomas Coffin described the singular position today’s children are in, and the unique significance of the lawsuit they have brought against their own government: “In essence, plaintiffs assert a novel theory somewhere between a civil rights action and National Environmental Policy/Clean Air Act/Clean Water Act suit to force the government to take action to reduce harmful pollution.”
When a government has clearly breached the public trust doctrine, and denied citizens their constitutional rights of due process and equal protection, then the courts must find in favour of the plaintiffs, or there is no justice, and civil disobedience is the only moral choice.
While the gears in the court system grind forward, the environmental tsunami sirens are going off on every coast. Urgency and outrage over the North American administrators of government and industry have motivated activists to put their own freedom on the line, and this is what some members of Climate Direct Action have now done.
As Jeremy Brecher explained in a March op-ed in Common Dreams, the defence “will have to prove to the court that the harm of climate change is greater than that of shutting a pipeline,” which they planned to do by calling “expert witnesses who will have no difficulty laying out the catastrophic current and future effects of fossil fuel emissions.”
This strategy hit a landmine on Wednesday, when the judge barred Dr. James Hansen—a former NASA scientist who has been called “the father of modern climate change awareness”—and other key climate witnesses from testifying. Defendant Foster’s legal team said the judge claimed “presentation of climate change testimony and evidence would confuse the jury and mislead them.” He is guilty of criminal trespass, therefore he is a criminal.
This judicial decision, however, may come back to bite the judge. Jurors are citizens who—even if they are Republicans—are aware that these activists are not criminals. Hansen is clear— “If they understood what he [Foster] was trying to prevent, the morality of what he was doing, the immorality of our governments as they get paid off by the fossil fuel industry, I think he would have been found innocent. As it is now, I’m afraid that he can look forward to cooking in the slammer for some time.”
Hansen went on to say, “If this court refuses to take into consideration why he did what he did, and the fact that he had previously tried every lawful action that our democracy allows, it will suggest that our judicial system has descended to a point that it is incapable of being fair. It is giving priority to the rights of big business over the public, and over young people in particular. Governments were instituted to protect people, not corporations.”
Jesica Corbett reported in Common Dreams this week that, before arriving in North Dakota, Hansen had prepared a written expert report outlining how North Dakotans and all Americans are in danger from climate change unless “meaningful action to confront the crisis” is taken. The report, he said, “emphasizes the fundamental concepts of climate change,” and ” the slow response of the climate system implies that young people and future generations will experience far greater effects from our CO2 emissions than we do.”
“It is this aspect that makes it a case of inter-generational injustice if we continue our high emissions,” Hansen continued. “The tar sands oil, and other unconventional fossil fuels, specifically fracking to get more oil and gas, if we allow these to be exploited, will push the system beyond the point of no return, assuring that future generations experience many-meter sea level rise and loss of our coastal cities.”
“The US is among the nations that has the most to lose,” he added. “Of course we are the largest contributor to the excess CO2 in the air, so it might be argued there is some justice in that. However, the tragedy is that we could be the solution, and would benefit greatly from it.”
Hansen and Foster gave a press conference from this year’s ground zero, North Dakota, following the court debacle.
Foster is the second of the “valve turners” to stand trial. The first activist to stand trial, Ken Ward, was convicted of burglary in Washington in June. The Associated Press reported, ”Jurors deadlocked on a sabotage count. Ward was sentenced to the two days he had already spent behind bars, plus community supervision and community service.”
Prosecutors have dropped charges against Lindsey Grayzel and Carl Davis, who filmed Ward’s protest. However, Samuel Jessup, who filmed Foster’s protest, is also standing trial in North Dakota this week, and criminal cases are pending against Ben Joldersma, Emily Johnston, Annette Klapstein, and Steve Liptay, in Minnesota, as well as Leonard Higgins and Reed Ingalls in Montana.
Renown in North America for his stand on the moral duty of civil disobedience, Henry David Thoreau will be turning over in his grave.
Publisher’s Note: Judith Stapleton is a writer in the fields of science and medicine.