Climate activist Michael Foster is going to jail for shutting off the emergency valve on TransCanada’s Keystone 1 tar sands pipeline in North Dakota. This morning in Pembina County Court, Judge Laurie A. Fontaine sentenced Foster to three years in prison, including two years deferred. He has been taken into custody and begins serving his sentence today.
For his act of shutting off the Keystone pipeline, Foster was convicted on October 6th, 2017 of misdemeanor trespass and felony criminal mischief and conspiracy to commit criminal mischief. Those convictions carried a potential maximum penalty of 21 years in prison.
TransCanada and the State of North Dakota had both pushed for a harsh sentence to deter other climate activists (the prosecution recommended five years). Foster's act was part of a simultaneous, coordinated action in four states to shut off all major tar sands crude pipelines entering the United States. Today’s sentence comes 16 months after the original October 11, 2016 action, which temporarily stopped the flow of tar sands bitumen into the US -- the equivalent of 15% of daily domestic oil consumption.
A 53-year-old mental health counselor from Seattle, Foster has no prior convictions. He decided to take the action to shut off the Keystone pipeline after spending five years giving presentations on the climate emergency to over 13,000 people, spearheading litigation, and starting multiple climate groups, including Plant-for-the-Planet, which engages children in tree planting.
"I made a decision to commit civil disobedience to defend my family tree and yours, knowing that there is no government, no politician, no corporation on planet right now putting forward a plan to defend life as we know it,” Foster said in a pre-sentencing interview. “My kids and yours won’t survive this mess if we don’t clean up all this.”
Reacting to the sentence, Foster said, “It doesn’t matter if I’m sitting in jail. What matters is stopping the pollution. If other people don’t take action, mine makes no difference. And if they don’t, the planet comes apart at the seams.The only way what I did matters is if people are stopping the poison.”
Foster’s co-defendant Sam Jessup was convicted of conspiracy to commit criminal mischief (a felony) and conspiracy trespass (a misdemeanor) for helping Foster by livestreaming his action. Those convictions carried a total potential maximum of 11 years, but Jessup will not be going to jail. Today he was sentenced to two years in prison with both years deferred and supervised probation.
At trial, Foster and Jessup’s legal team petitioned to be allowed to present the “necessity defense,” a legal defense which acknowledges that the defendants technically violated the law, but argues that it was permissible because they did so to prevent a much greater harm, in this case the harms that tar sands, the most carbon-intensive form of oil, do to the climate. It would have allowed the defendants to call expert witnesses and introduce testimony about climate change for the jury to consider. But Judge Fontaine refused to permit it.
Dr. James Hansen, the nation’s premier climate scientist whose 1988 testimony to Congress alerted the public to climate danger, traveled to North Dakota to testify at the trial, but was barred from doing so by Judge Fontaine. Outside the courtroom, Hansen emphasized that the public is largely unaware of how little time is left before climate change becomes irreversible, and that we are entering “the age of consequences” for burning fossil fuels. He praised Foster for calling attention to it. “Michael Foster isn’t a criminal;” Hansen said, “he’s a hero.”
Ken Ward and Leonard Higgins, Foster’s fellow “valve turners” who shut off tar sands pipelines in Montana and Washington state, respectively, also sought to present the necessity defense in their trials, and were similarly denied permission to do so. Both were convicted of felonies. Ward received a sentence of 30 days’ community service. Higgins awaits sentencing in Ft. Benton, Montana on March 20.
But in a landmark ruling in Minnesota, valve-turners Annette Klapstein and Emily Johnston who shut off Enbridge tar sands lines 4 and 67, were granted their request for a necessity defense. It was the first written opinion allowing climate necessity to be argued in an American court. The ruling came during 2017’s record-breaking storms and fires. The State of Minnesota has appealed the ruling. The trial is likely to take place this summer.
The Minnesota ruling was followed a few days later by a similar ruling in Spokane, Washington, permitting a necessity defense for a climate activist who participated in a 2016 coal train blockade. That may be a sign that awareness of climate change and legal precedents are advancing to a point where other courts will entertain necessity defense for citizen climate actions.
“There is no chance the political system will prevent global collapse on its own,” said Annette Klapstein. “If the earth is going to remain habitable for our children and grandchildren and all future generations, it will be because people saw the necessity of fighting for their right to survival, and we’re going to argue the necessity of fighting for that right in court.”