No Jail Time for Climate Activist Who Shut Off Tar Sands Pipeline to Prevent Climate Harms

Yesterday in Chouteau County District Court, Leonard Higgins, the 66 year-old retired Oregon state worker turned climate activist who shut off a tar sands pipeline to fight climate change, was sentenced to three years deferred imprisonment, meaning he will serve no jail time. He was also ordered to pay restitution of $3,755.47. The prosecution sought $25,630 in restitution, but the sentence followed the recommendations of the defense.

Higgins was convicted in November 2017 of criminal mischief and misdemeanor criminal trespass, charges which could have carried a sentence of up to 10 years in jail and fines of up to $50,000.

As he openly admits, on October 11, 2016, Higgins 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. He is one of five climate activists who simultaneously shut down pipelines in four states as an act of civil disobedience, temporarily halting the flow of all tar sands from Canada into the US, disrupting 15% of US daily oil supply. These "valve turners" selected those pipelines because tar sands is the most carbon-intensive, climate-damaging form of oil, and thus for them, burning it constitutes an emergency. A two-minute video about the action is posted here .

There is no dispute about the facts of the action Higgins and others took. On the contrary, they were open and deliberate, alerting the pipeline companies in advance of the shut down, allowing time for the companies to shut down the pipelines themselves, in some cases. Higgins and his fellow activists live streamed their actions and then waited calmly for police to arrive and arrest them.

"His motivations were not selfish, but selfless," said defense attorney Lauren C. Regan, one of Higgins' defense attorneys and the founder and executive director of The Civil Liberties Defense Center , in her statement before the court. "He attempted to act out of the public interest, not to harm anyone. He was in Chouteau County to try and prevent catastrophic climate change that will eventually affect the good people of this county just as it is already impacting island nations, the Arctic, and coastal regions around the globe."

"This is not a crime for which he received any benefit," said presiding Judge Daniel Boucher. "He should have this removed from his record."

In Higgins' statement to the court, he expressed respect for the court and the authority of the judge, and took responsibility for trespassing, cutting two chains to enter the pipeline enclosure, and accidentally damaging a metal plate on an electric motor in his act of civil disobedience. He pointed out that his was an act of conscience.

"The facts of climate science, the tragic impacts of changes already under way, and the negligence of government in responding drove me across the line from a public employee to someone who would consider civil disobedience," Higgins said. "There is strong evidence that we may have already crossed this line. Today I'm here in part because of my faith in the courts, in humanity and in the law. I say this not to ask for leniency from the court but to ask to stand here and take responsibility for the actions which I have taken."

Higgins and his attorneys signaled that they planned to appeal his conviction, because he was not permitted to mount a "necessity defense," which would have argued that his action was necessary and justified in order to prevent climate harms much worse than the consequences of trespassing and interfering with the pipeline. Granting necessity defense would have allowed the defense to call expert witnesses and present evidence on climate change and the climate harms done by tar sands. Before trial Higgins' defense team petitioned Chouteau County District Court and the Montana Supreme Court to allow it to mount such a defense, but both petitions were denied without hearing.

"I appreciate the chance to present the intent of my action more fully than I was able to at my trial," Higgins said yesterday, a reference to the fact that the jury was not permitted to hear evidence pertaining to climate change. "I look forward to appealing to the court for my 6th Amendment right of a full defense to present my case again with the full scope of information available," he said.

"It is highly likely we will file notice of appeal to challenge denial of necessity defense," said Regan. "But for that denial, we may not have even been here today. There could have been a very different outcome [in] the jury's deliberations if they had been allowed to use necessity defense in their decision making process."

Two other valve turners, Ken Ward, who acted in Washington state, and Michael Foster, who acted in North Dakota, were also denied the right to a necessity defense, and convicted on felony charges. Ward was convicted of second-degree burglary and sentenced to community service with no jail time. Foster was convicted of criminal mischief, conspiracy to commit criminal mischief (both felonies) and criminal trespass (a misdemeanor), and sentenced to three years in prison, including two deferred. He is serving time now. Both have appealed their convictions, partly because necessity defense was denied.

However, the necessity defense was recently granted to fellow valve-turners Emily Johnston and Annette Klapstein, whose trial is pending in a Minnesota court and expected to take place this summer. It's the first such written decision in a climate case in U.S. history. Leading experts in the fields of climate science and civil disobedience will testify for the defense. Immediately following the Minnesota decision, necessity defense was again granted in a climate action case in Spokane, Washington.

Necessity defense in climate cases is a rapidly evolving area of law, the stakes of which are rising as climate change accelerates, and as more citizens protest fossil fuel extraction and expansion amid an intensifying crackdown on protest and citizen action.

2017 was the third hottest year on record and saw record storms, droughts and forest fires. In February this year, Arctic temperatures soared above freezing. More pipeline protests generating more arrests of activists 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, several states have passed laws that would criminalize and toughen penalties for peaceful protest and non-violent direct action. More 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. The Civil Liberties Defense Center and the Climate Defense Project are working on appeals in the valve-turner cases, and to advance climate necessity defense in general.