In a decision that could profoundly impact future litigation involving climate activists, the Washington Supreme Court this week refused to review a lower court's ruling to allow valve-turner Ken Ward to present a "necessity defense" for charges related to a 2016 multi-state action that temporarily shut down tar sands pipelines.
On Wednesday, a three judge panel from the state's highest court unanimously denied (pdf) a petition from the State of Washington to review a state appeals court ruling (pdf) in April that overturned Ward's conviction for disabling the Kinder Morgan Trans Mountain pipeline as part of the "Shut It Down" action on Oct. 11, 2016. The pipeline transports Canadian tar sands oil to refineries in Washington's Skagit County.
After his first trial ended with a hung jury, Ward was convicted of one count of burglary at his second trial in 2017. Ward's attorneys successfully argued to the appeals court that the second trial violated his constitutional rights because Ward had not been allowed to argue that he believed shutting down the pipeline was necessary because of the threat that fossil fuels pose to the planet and its inhabitants.
In a statement Thursday, Ward's lawyers welcomed the state supreme court's decision and highlighted the broader implications for climate activists.
"This victory upholds the right of a defendant to assert the necessity defense to the charges brought by the state, and also strengthens the essential role that a jury of community members will play in determining whether the accused should be found guilty or not," said Lauren Regan, attorney for Ward and director of the Civil Liberties Defense Center.
Alice Cherry of the Climate Defense Project, who is also an attorney for Ward, called the decision "a victory for free expression and dissent in the State of Washington."
"It creates a strong legal basis for climate protesters to justify their actions in a court of law, and to defend themselves against prosecutorial overreach," said Cherry. "This is significant, given that the fossil fuel industry is increasingly attempting to squelch public opposition to its expansion projects."
Ward also welcomed the court's decision, saying, "This is just great!"
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"I've said all along that I relish the chance to put the facts about climate catastrophe before a jury in Skagit County," he added. "I think that any reasonable group of citizens will agree that actions like the 'valve-turners' are necessary if we're to have any hope of avoiding the worst, given the stranglehold that the fossil fuel industry has on politics, and the speed of collapse."
Ward was one of five valve-turners who participated in the 2016 action, which took place on one day across four states. He was joined by Michael Foster in North Dakota, Leonard Higgins in Montana, and Emily Johnston and Annette Klapstein in Minnesota.
Johnston—who, along with Klapstein, was acquitted of all charges in October—celebrated the Washington Supreme Court move in a pair of tweets this week:
This means that two states now—MN & WA—have had appellate courts AND supreme courts affirm the use of the climate necessity defense. That's a VERY important precedent.
In WA & MN, the high courts have got your back.
You know what to do, people. #DirectActionGetsTheGoods
— Emily Johnston (@enjohnston) September 5, 2019
As Common Dreams reported last year, although Johnston and Klapstein were relieved that their charges were dismissed, they were also disappointed that they did not get to present a necessity defense to a jury. They would have been the first valve-turners to be allowed to do so, enabled by a decision from the Minnesota Supreme Court.