I Shut Down An Oil Pipeline

| Resist!

Above: Emily Johnston uses bolt cutters to break a chain that was locking down an emergency shutoff. From the Seattle Times.

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Climate Change is a Ticking Bomb

A little over a year ago, four friends and I shut down all five pipelines carrying tar sands crude oil into the United States by using emergency shut-off valves. As recent months have made clear, climate change is not only an imminent threat; it is an existing catastrophe. It’s going to get worse, and tar sands oil—the dirtiest oil on Earth—is one of the reasons.

We did this very, very carefully—after talking to pipeline engineers, and doing our own research. Before we touched a thing, we called the pipeline companies twice to warn them, and let them turn off the pipelines themselves if they thought that was better; all of them did so.

We knew we were at risk for years in prison. But the nation needs to wake up now to what’s coming our way if we don’t reduce emissions boldly and fast; business as usual is now genocidal.

In shutting off the pipelines, we hoped to be part of that wake-up, to put ourselves in legal jeopardy in order to state dramatically and unambiguously that normal methods of political action and protest are simply not working with anywhere near the speed that we need them to.

One major hope of ours was to set legal precedent by using the “necessity defense” and bringing in expert witnesses to testify that because of the egregious nature of tar sands crude and the urgency of the climate crisis, we’d actually been acting in accordance with higher laws.

The classic example of a legitimate use of the necessity defense is when someone is arrested for breaking and entering after they hear a baby crying in a burning building, and rush in to save her.

Because it requires a high bar of proof—you must have tried everything else, the danger must be imminent, the action must be likely to be effective—courts seldom even allow this defense to be argued, or expert witnesses to be brought; their only concern, generally, is did you break and enter? Not why.

Three of our trials (which are in four states) had already rejected the use of the necessity defense. In North Dakota, the judge said essentially “I’m not going to let you put US energy policy on trial”. But recently, I and the other Minnesota defendants were finally granted it.

I have little doubt that the awful weather events of the last couple of months played some role in this—it’s not just scientists seeing the truth anymore: the building is indeed burning, and all the world’s babies are in it. I was struck by the North Dakota judge’s implicit understanding that letting science be spoken in her courtroom would have had the effect of putting energy policy on trial—of reversing, in effect, who was the defendant, and who the prosecutor.

We had no demagogues lined up; we had the nation’s pre-eminent climate scientist ready, as well as two people who were to speak on the effectiveness of actions such as ours (often referred to as nonviolent resistance). How far awry must a system go, before the laws of physics are forbidden in a court of law?

Yet it is indeed a dangerous thing to speak the truth sometimes—dangerous in particular to those who have been lying to us for decades, and who have gotten very, very rich by doing so. Those who are also, at the moment, running our country.

So I find myself feeling peculiarly exposed now. When I first heard the news, elated, I called and texted and emailed family and friends. I deeply regretted that my mother—who died in June—didn’t live long enough to see us do our best to change legal history.

I wish she had known that a judge had been persuaded by the legitimacy of our argument (if not yet of its rightness)—a judge, no less, in a county where the pipeline company, Enbridge, is the single largest property tax payer.

I’m heartened by the way the law can be supple—not a thing that, once set, holds that exact shape forever (or we’d still have slavery, and I couldn’t vote or marry), but a thing that responds—slowly—to our evolving understanding of what is just and true.

When it comes to climate change, there’s little enough to feel heartened by, so I’ll take it.

Emily Johnston is a poet and co-founder of 350Seattle.org. She will face trial starting 11 December on felony charges for shutting the emergency valve on the Enbridge tar sands pipeline in Leonard, Minnesota, together with her co-defendant Annette Klapstein. The charges carry maximum penalties of some 20 years in prison and fines up to $40,000. 

  • Jon

    We must insist on using the necessity defense, or otherwise declare the scene a kangaroo court. Motive is ALWAYS relevant. Hats off to Emily!

  • kevinzeese

    I have been a big supporter of the necessity defense since the beginning of my legal career. The first legal medical marijuana users got their right to use marijuana through a necessity defense. The government ended up supplying ten joints a day of cannabis grown in Mississippi. It was terrible marijuana but an important precedent.

    But, the necessity defense is very difficult and rarely successful. It is very dangerous for a defendant to put all their eggs in the necessity basket. And, when you pursue the defense you are basically giving up other defenses because you are admitting the crime and saying you did so for a necessity — a reason greater than the reason for the crime.

    The big hurdle in the defense is if you have any other alternative than you are likely to lose. There is almost always another alternative, i.e. write a letter, meet with someone, organize a protest etc. So, it is a tough defense that is almost never successful.

    The safer approach is to defend yourself and if convicted explain your actions based on a necessity argument.

  • Jon

    Thanks for your input, Kevin. But my point remains, we must not let “the court” refuse a genuine defense and ignore motives. Courts can be intimidating, but with support from allies, we can challenge that scene.

  • Bolt cutters require a lot of strength – Whenever using bold cutters try leaning one of the handles against something solid like the post in the background which then enables the user to push into the device by using their body weight.

  • kevinzeese

    In the courtroom, the judge decides whether the defense can be presented. If the judge says ‘no necessity defense’, then there is no necessity defense. Not only can a judge be intimidating, they decide what is allowed in their courtroom. An appeal court can reverse them, but I have never known of a judge who refused the necessity defense being reversed. So, how do you “not let ‘the court’ refuse”?

  • Jon

    By turning it into a circus, with ridicule, which needs far more than the defendant to participate– basically saying, “If those are your rules, I’m not playing your game.” Of course, they have the power to put the person in jail, but “our side” may win in the court of public opinion for such defiance. Ever know about Fidel’s courtroom speech just before he was put in prison years before their revolution? Essentially that’s what he did.

  • What defense is possible when some of the most important decisions effecting the environment are made behind closed doors in a private tribunal where corporate officials hold governments accountable and award damages in taxpayers funds.

    That is what I consider to be the real problem.

    The ISDS and IIAS provisions are found in many trade agreements.

    There is no appeal, even when a government wins such a case it still has to pay cost to the other side.

    Here’s an example.

    In the fine print of the trade deal is a clause, It’s called the Investor State Dispute Settlement or ISDS, it allows corporations to sue a government whenever it imagines that a certain decision or ruling will have an impact of it’s own and imagined turnover, like for example the ISDS in an existing trade deal was used to overcome an active ban on hydraulic fracturing in Canada.

    In other words the ISDS can be used to manipulate a government into doing things it would not consider on a voluntarily basis — it also serves as a vital back up in the unforeseen event of voters actually electing a people’s person as their representative, via the trade deal they can be manipulated to the demands of the investor aka the corporations.

    F.E. ”Free trade critics say a $250-million damage suit being pursued as a result of Quebec’s moratorium on fracking is proof Canada needs to be careful in negotiating trade pacts around the world.

    The Council of Canadians, the Sierra Club and Quebec-based Eau Secours say the suit by Lone Pine Resources Inc. (TSX:LPR) shows that trade deals that include investor protection clauses are a bad idea because they can prevent governments from passing laws to protect the environment. [ Huff-Po]