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State Appeals Court Rules Valve Turners Can Proceed With Necessity Defense for Pipeline Protest

"This is an important opportunity for the legal system to acknowledge the climate crisis." 

Valve turners Annette Klapstein and Emily Nesbitt Johnston

Valve turners Annette Klapstein and Emily Nesbitt Johnston plan to fight felony charges for a pipeline protest with a necessity defense in Minnesota court. (Photo: @enjohnston/Twitter)

In a victory for activists who shut down a tar sands pipeline as part of a multi-state protest in 2016, a Minnesota appeals court has ruled that the "valve turners" can present a defense that their action was necessary because of the threat that fossil fuel production poses to the planet.

On Monday, the Minnesota Court of Appeals issued a 2-1 decision (pdf) upholding a district judge's October ruling that Annette Klapstein, Emily Nesbitt Johnston, Steven Liptay, and Benjamin Joldersma can present a "necessity defense" for participating in the #ShutItDown action, which temporarily disabled all tar sands pipelines crossing the U.S.-Canada border.

State prosecuters had challenged last year's ruling, claiming that such a defense would jeopardize the likelihood of a successful prosecution and "unnecessarily confuse the jury." Monday's decision means that those charged can call expert witnesses to exlain to jurors how tar sands crude is harming the planet.

It is unclear if the prosecution will appeal the decision to the state's Supreme Court. 

"If we get to present a necessity defense trial, and the jury has to grapple with full knowledge of our shared reality, the jig is up for the fossil fuel industry, and the end of their devastating business model comes into much clearer view," said Johnston, who faces felony charges for shutting down the pipeline.

Dr. James Hansen—a former NASA scientist who has been called "the father of modern climate change awareness"—is among the experts who plan to appear in court to support the valve turners. Summarizing what he plans to tell the jury, he said: 

It is my expert opinion that global warming from persistent high fossil fuel emissions is in the danger zone, that CO2 emissions from all such sources must be reduced with all deliberate speed, that the situation is becoming worse with each passing day, and that we are likely approaching climate tipping points from which there is no reasonable prospect of return….[The] defendants by their actions, as I understand them, aimed to prevent the urgent and growing danger, and to turn around the government’s failure to date meaningfully to address it.

While the valve turners are aiming to fight criminal charges with scientific testimonies from witnesses like Hansen, environmentalists across the country are also forcing courtroom conversations about global warming with lawsuits that seek to hold fossil fuel companies and governments accountable for their contributions to the climate crisis.

Although judges in North Dakota and Montana barred fellow valve turners from presenting necessity defenses last year, after Monday's ruling, Klapstein—who also faces felony charges in Minnesota—expressed hope for future climate cases.

"As a retired attorney, I am encouraged to see that courts across the country seem increasingly willing to allow the necessity defense in climate cases," she said. "I believe that many judges are aware that our political system has proven itself disastrously unwilling to deal with the catastrophic crisis of climate change, which leaves as our only recourse the actions of ordinary citizens like ourselves, and the courts and juries of our peers that stand in judgment of those actions."

Climate Defense Project executive director Kelsey Skaggs, who is assisting the Minnesota valve turners' attorneys, concluded, "This is an important opportunity for the legal system to acknowledge the climate crisis."

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