A district court judge in North Dakota has barred climate change scientist Dr. James Hansen and other experts from testifying in the landmark trial of Michael Foster, one of the 11 climate activists with the group Climate Direct Action who temporarily halted the flow of tar sands bitumen from Canada into the U.S. in a #ShutItDown action last October.
"The science has been made clear to the government, but the government isn't doing its job."
—Dr. James Hansen
Working simultaneously in North Dakota, Minnesota, Montana, and Washington, 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 Foster, a Seatte-based mental health counselor in his 50s, described in a Newsweek column published Tuesday. 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, livestreamed our action to prove it wasn't a hoax, then peacefully waited for arrest," he wrote. Foster, whose trial started Monday, has been charged with two Class B felonies and two misdemeanors, and faces up to 22 years in jail. He has pleaded "not guilty," and his team is asking to present what is called a necessity defense.
As Jeremy Brecher explained in a Common Dreams op-ed in March: "To make a necessity defense, 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." To achieve that, the defense "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."
However, they hit a roadblock on Wednesday, when the judge barred Hansen—a former NASA scientist who has been called "the father of modern climate change awareness"—and other key climate witnesses from testifying. The judge, according to Foster's representatives, claimed "presentation of climate change testimony and evidence would confuse the jury and mislead them."
"The refusal to allow me to testify is likely to have a huge impact on the jurors' decisions," Hansen told Common Dreams. "If they understood what he 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 that 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."
"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," he said. "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."
Before arriving in North Dakota, Hansen 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 "that 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."
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"The U.S. 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 North Dakota on Thursday afternoon.
Watch (start at 1:45):
"America's courts are an essential place to discuss the imperative for citizens act to against climate change," Foster wrote in Newsweek. "As a matter of justice, it's fundamental to have that discussion, and cite evidence to support it, in front of a jury. The prosecution disagrees."
"It moved to block me from presenting evidence of climate danger, the main reason I acted," he continued. "Prosecutors argue jurors might be biased by hearing about climate change, or being shown evidence of how dirty fossil fuels like tar sands affect it, and what those impacts mean for North Dakotans and all of us."
Foster is the second of the 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 reports. "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.
This post has been updated to include statements from Dr. James Hansen.