Barred From Discussing Climate Change in Court, Climate Activist Who Shut Off Tar A Sands Pipeline in Montana Gets Felony Conviction

Higgins openly admits that on October 11, 2016, he cut two chains to enter a fenced enclosure around the Enbridge (formerly Spectra) tar sands pipeline in Coal Banks Landing, Montana, and turned the emergency shutoff valve. In fact, he and others called the company to alert them to obviate any safety problems, and a supporter filmed and livestreamed the action, after which they both waited to be arrested.

The case made national news. Higgins' action was part of a coordinated effort that simultaneously shut off tar sands pipelines in four states, temporarily halting all flow into the US of tar sands, which is the most carbon-intensive and climate damaging form of oil. In addition to being prosecuted in state court, Higgins and his fellow "valve turners" were recently the target of a letter signed by 84 members of Congress to the Justice Department, asking pointedly why it hadn't also prosecuted them under federal law, and whether their actions met the definition of domestic terrorism under the Patriot Act. Earlier this month Reuters reported the letter and the Justice Department's response "could escalate tensions between climate activists and the [Trump] administration."

But Higgins, a mild-mannered 65-year-old who says he acted out of conscience to help prevent climate harms for the sake of his children and grandchildren, was the opposite of confrontational. He expressed gratitude for his day in court and the chance to share his story and spend Thanksgiving with friends and supporters who attended the trial, "in such a beautiful place." He pleaded guilty to misdemeanor trespass and doesn't dispute the facts of what he did, but argues that the imperative to prevent climate harms justified his action. He was not permitted to make that argument in court, however.

"I'm happy for the opportunity to share why I had to shut down this pipeline, and I really appreciate the time and dedication of the jury and the judge," Higgins said. "I was disappointed and surprised by the verdict, but even more disappointed that I was not allowed a 'necessity defense,' and that I wasn't allowed to talk about climate change as it related to my state of mind. When I tried to talk about why I did what I did I was silenced. I'm looking forward to an appeal."

"We're disappointed that Mr Higgins was denied the opportunity to present a full defense and explain to the jury why he took his courageous action," said Kelsey Skaggs, Executive Director of the Climate Defense Project and member of Leonard's legal team. "Because of the fossil fuel industry's enormous influence, activists fighting for the future are being convicted while the real climate criminals walk free."

Before trial, Higgins and his defense team filed a motion with the Chouteau County District Court and a petition to the Montana Supreme Court asking permission to offer a "necessity defense," and argue before the jury that his action was necessary in order to prevent climate harms much more severe than the consequences of trespassing and turning the pipeline emergency valve. It would have allowed the defense team to bring in expert witnesses and evidence on climate change and the climate impacts of tar sands oil. Such a climate "necessity defense" was recently granted to Higgins' fellow valve-turners Emily Johnston and Annette Klapstein, whose trial is pending in a Minnesota court and in a similar case in Spokane, Washington.

But Judge Daniel Boucher, who presided in the trial, denied without a hearing Higgins' requests for a necessity defense, calling them a "mistaken attempt" "to place U.S. energy policy on trial." That ruling meant Higgins' jury was barred from hearing or considering evidence about the climate harms that motivated him.

In court, Higgins himself was also prevented from discussing climate change or explaining that he was motivated by the need to prevent climate harms. In fact, whenever he used the word "climate" in his testimony, the prosecutor objected and the judge sustained the objection.

So without using the word "climate," Higgins sought to convey that his action was a matter of conscience, answering a call he felt to do something effective to prevent the harms tar sands cause. "I began to reactivate in my church, and thought about what I could do to atone, frankly, for just paying attention to my own comfort and success," he said.

When asked by the prosecutor what he expected to be the repercussions of turning off the pipeline, Higgins responded, "Two things: to face the consequences, and to use this chance to talk about the problem."

By "the problem," Higgins means the problem of accelerating climate change and continued exploitation of carbon-intensive fossil fuels. In the wake of Standing Rock, more pipeline protests have sprung up nationwide, including against the Line 3 pipeline expansion in Minnesota, the Bayou Bridge Pipeline in Louisiana, the Trans-Pecos Pipeline in West Texas, the Diamond Pipeline in Memphis, the Sabal Trail Pipeline in Florida, and others. At the same time, the crackdown on the protests is intensifying. So far this year, several states have passed laws that would criminalize and toughen penalties for peaceful protest and non-violent direct action. Another 20 states are considering such measures.

That makes the trials of Higgins and his fellow climate activists important precedents. More such trials are coming, with more serious charges and penalties at stake. "As [more people] see examples of people putting aside the comforts and the complacency," said Higgins, "they'll feel the same compulsion, the same duty to take action, to do what's right."