Lessons From the Delta 5 Necessity Defense

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Above Photo: From PopularResistance.org.

Delta 5 trial: Making the case for climate disobedience

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 werefound 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 and their support team.

Delta 5 and their support team.

“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.”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.”

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 documentedto 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 that 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.

  • Jon

    Excellent article! Seeing this in conclusion:

    “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,”

    I will suggest a tactic we used in the sixties vis a vis the War Against Vietnam–picketing churches to shake them out of silent complicity and lethargy. Challenge their institutional conscience! But be sure to choose ones who have dragged their feet, not ones who have divested or otherwise taken positive steps.