As Their Trials Begins, Climate Protecting "Valve Turners" Say "Shut It Down" Is "Necessity"
Is there anything people can do about climate change in the Trump era? The new American president has asserted that global warming is a fraud perpetrated by the Chinese to steal American jobs; threatened to ignore or even withdraw from the Paris climate agreement; and pledged unlimited burning of fossil fuels. Whatever the details, Trump’s agenda will escalate global warming far beyond its already catastrophic trajectory. As we learn that 2016 was the hottest year on record, it sounds like a formula for doom.
On October 11 2016, with the presidential campaign still raging, five climate protectors traveled to five secluded locations in North Dakota, Montana, Minnesota, and Washington state and turned the shut-off valves on the five pipelines that carry tar sands oil from Alberta, Canada into the United States. Their action – dubbed “Shut It Down” – blocked 15% of US crude oil imports for nearly a day. It will not in itself halt global warming. But it exemplifies a rising climate resistance that is challenging our thrust toward doom – and the temptation to succumb to climate despair.
The self-proclaimed “Valve Turners” have been charged with crimes ranging from burglary to criminal sabotage. (Another charge, “assemblage of saboteurs,” has been dropped.) One of them, Ken Ward, was tried January 30. A divided jury refused to convict him and the judge declared a mistrial. A re-trial has been scheduled for May 1. Trials for the others are anticipated to take place this spring and summer.
The Valve Turners are asking to present what is called a necessity defense. Though not widely known, this defense is well established in Anglo-American common law; as early as 1550, an English merchant who dumped passengers’ cargo overboard was acquitted on the grounds that his action was necessary to prevent their ship from capsizing. While judges very often resist such necessity claims, since the 1970s hundreds of people who have committed civil disobedience in service of the public good have been acquitted on the grounds that their actions were taken to prevent a greater harm.
To make a necessity defense, the accused must prove that they believed their act was necessary to avoid or minimize a harm; that the harm was greater than the harm resulting from the violation of the law; and that there were no reasonable legal alternatives. As the state of Washington Supreme Court put it, the necessity doctrine provides that an act is justified “if it by necessity is taken in a reasonable belief that the harm or evil to be prevented by the act is greater than the harm caused by violating the criminal statute.”
So first of all, the Valve Turners will have to prove to the court that the harm of climate change is greater than that of shutting a pipeline. They will seek to call expert witnesses who will have no difficulty laying out the catastrophic current and future effects of fossil fuel emissions. They can point out that in a recent federal court case the U.S. government acknowledged that climate change poses “a monumental threat to Americans' health and welfare” by “driving long-lasting changes in our climate,” leading to an array of “severe negative effects, which will worsen over time." As Ken Ward has put it, “In this context and with these terrible imperatives, my actions of walking across a field and cutting a fence chain are inconsequential and excusable compared to the ghastly effect of continuing to burn tar sands oil.”
It is generally harder to persuade courts to accept that civil disobedience actions like shutting a pipeline for a day can reasonably be considered a means to avert something like global warming. That requires educating them on the historic role that civil disobedience has played in alerting the public to evils and mobilizing effective corrective action. That iconic action in the founding of the American nation, the Boston Tea Party, was an act of civil disobedience that played a critical role in mobilizing public opinion and action for American independence. The Underground Railroad that illegally aided the escape of fugitive slaves made a significant contribution to the abolition of slavery. Civil disobedience by women’s rights advocates played a significant role in winning women the right to vote. The sit-down strikes of the 1930s helped establish the rights to organize and bargain collectively for American workers. The freedom rides, sit-ins, and other nonviolent direct actions of the civil rights movement helped put an end to legally-enforced racial segregation in the American South.
Such actions have also been effective means to oppose climate change and the burning of fossil fuels. Nonviolent civil disobedience played a major role in building the movement that eventually led President Barrack Obama to block the Keystone XL pipeline. Civil disobedience by Native American water protectors and their supporters led to the decision late last year to halt the Dakota Access pipeline. (President Trump’s reversal of those decisions suggests that such actions may be even more essential, if more difficult, in the future.)
Many of the Valve Turners have had direct experience with the effectiveness of such actions. In 2013 Ken Ward blocked coal shipments to the Brayton Point power plant in Massachusetts. Shortly thereafter the new owners of the plant announced its closing. Annette Klapstein participated in a in the Shell No! civil disobedience campaign against arctic drilling, including blockading the Port of Seattle for a day, which contributed to Shell Oil’s decision to cease operations in the Arctic.
Fortunately a necessity defense does not have to prove that an action would achieve its objective by itself. A concurring opinion in a 1985 nuclear arms protest trial explained that the defendants “do not assert that their action would avoid nuclear war (what a grandiose and unlikely idea!).” Instead, “their belief was that their action, in combination with the actions of others, might accelerate a political process ultimately leading to the abandonment of nuclear missiles.” That belief “should not be dismissed” as “‘unreasonable as a matter of law.’”
Finally, a necessity defense must also show that there was no reasonable alternative – that breaking the law was necessary because the defendant had no other way to avert a harm. Here defendants often describe the unsuccessful efforts they have previously made by legal means. For the Valve Turners, the evidence is overwhelming. Annette Klapstein, an attorney, testified at numerous hearings against fossil fuel infrastructure projects proposed in Anacortes, Longview, Vancouver, and Grays Harbor County. She marched, rallied, and signed petitions. Ken Ward has spent a lifetime trying to protect the environment and used practically every legal method conceivable to combat global warming:
I spent the first half of my life working as professional staff for major environmental and public interest organizations, serving as Executive Director of New Jersey Public Interest Research Group (NJPIRG), Deputy Executive Director of Greenpeace USA, President of the National Environmental Law Center, and co-founder of U.S. PIRG, Environment America and the Fund for Public Interest Research. In those positions I played by the rules, using every legal device for influencing energy policy, beginning as a coordinator for the national Campaign for Safe Energy in 1980.
Nothing we did then worked, and there is no plan of action, policy or strategy being advanced now by any political leader, climate action group or environmental organization playing by the rules that does anything but acquiesce to ruin. Our only hope is to step outside polite conversation and put our bodies and ourselves in the way. We must shut it down, starting with the most immediate threats; oil sands fuels and coal.
Ward, who has described himself as a “middle-class, white male WASP Christian,” used bolt cutters to snip the chain on the valve wheel of Kinder Morgan’s TransMountain pipeline in a field near the refineries of Anacortes, WA; then he shut the valve. He was later arrested on the site, along with two independent documentarians who were filming the action from off of company property, by Skagit County sheriffs. Ward was charged with burglary, criminal sabotage, and criminal trespass. He faces up to 30 years in prison – far more than protestors charged with similar acts in the past. If convicted in his retrial, Ward, 59, could possibly die in prison.
Despite the arguments for allowing a necessity defense, the judge in Ken Ward’s case refused to let him present it. As a result, the Skagit County jury was forbidden to hear the testimony of leading climate scientists that would have let them understand what the “greater harm” of climate change really was or learn that it could legally decide that Ward’s action was justified by necessity. But Ward in his own testimony explained what had made it necessary for him to act as he did. He gave the court two charts: One, from NASA, showed that for 400,000 years carbon in the atmosphere had never reached 300 parts per million, but that is now over 400. The other projected a five-foot sea-level rise for Skagit County by 2050 – and showed all the county’s low-lying tulip fields under water with all its refineries islands between them.
While there has been no account so far of what actually happened in the jury room, the outcome was that jury refused to convict on any charges. Ward and his attorneys regard this as a huge victory. As Ward put it, “This was, arguably, a more powerful result than winning in a necessity defense. They were given no indication that they could do that – and yet they did it anyway.”
It remains to be seen whether subsequent defendants will have the opportunity to present a full necessity defense to their juries.
The right to climate protection
The government policies and practices that the Valve Turners’ action is trying to reverse are not only harmful, they are increasingly being defined as unconstitutional and illegal. A decision by Oregon federal district court judge Ann Aiken in November concluded that “the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.” A stable climate system is quite literally the foundation of society, “without which there would be neither civilization nor progress.”
In a case brought by Our Children’s Trust on behalf of 21 young people against the federal government, Judge Aiken ruled that if “governmental action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shorten human lifespans, result in widespread damage to property, threaten human food sources, and dramatically alter the planet's ecosystem,” then those affected have a claim for protection of their life and liberty under the fifth amendment. “To hold otherwise would be to say that the Constitution affords no protection against a government's knowing decision to poison the air its citizens breathe or the water its citizens drink.”
Judge Aiken also ruled that if the government was knowingly destroying the earth’s climate, it was in violation of the public trust doctrine, which requires governments to act as trustees for essential natural resources. She quoted a judicial opinion that that the right of future generations to a "balanced and healthful ecology" is so basic that it "need not even be written in the Constitution” for it is “assumed to exist from the inception of humankind."
On that basis it is the government that should be in the dock for denying our most basic rights and promoting the destruction of the earth’s climate – part of the public trust on which we and our posterity depend for our lives. Conversely, the Shut It Down climate protesters and others like them charged as criminals should really be regarded as climate protectors trying to halt the greatest crime in human history.
What are the Shut It Down climate protectors asking us to do? Ken Ward says, “The only means available to responsible citizens who want to slow the collapse of the West Antarctic and other ice shelves and prevent rapid sea level rise that will destroy our nation and the conditions which make civilization possible” is “to take effective direct action to stop the extraction, transport, refining and burning of tar sands oil and coal” and “block investment and construction of all new fossil fuel infrastructure.” This must be done “in a timeframe measured in months.”
Shut It Down participant Emily Johnson, who turned off an Enbridge pipeline near the town of Leonard, Minnesota, spells out her conception of such a “different approach.” Paraphrasing Canadian Prime Minister Justin Trudeau, she points out that “governments might grant permits, but only communities can grant permission.” To understand our power as citizens of the world, we have to remember that “Fossil fuel companies cannot operate without our consent.”
There’s a lot of legal risk in lock-downs and valve-turning, of course, so it’s harder for many people—young people at the beginning of their careers, people of color, people with small children, undocumented people. But removing our money from banks that fund these projects—and telling them why we’re doing it—is something anyone can do. For that matter, you could go in and stage a moving public reading of such a letter—that’s not illegal, and even if they make you leave, you’ll know you’ve played a small part in the restoration of the web of life. And you’ve withdrawn your consent. There are roles, in other words, for everyone. The point isn’t civil disobedience itself; the point is disrupting the inertia of a system that’s poised to devastate everything we care about.
“We don’t all have to do the same thing” she emphasizes, “nor should we.” But “we all have to do something.” Because otherwise, “we’re passively consenting to the devastation of most life on earth.”
 Dave Eisenstadter, Lobster Boat Blockade: Two Activists Stand Trial After Helping Close Down a Coal Plant (Sep. 5, 2014) http://www.occupy. com/article/lobster-boat-blockade-two-activists-stand-trial-after-helping-close-downcoal-plant#sthash.hT1OGLp8.dpbs .
 Brief re: necessity Johnston et al, 2017.02.03 p. 21.
 Leah Sottile, “Ken Ward Is Willing to Go to Jail for the Rest of His Life to Fight Climate Change. What About You?”
 Emily Johnson, “The Fossil Fuel Industry Needs Our Consent. We Can and Must Refuse to Give It,” The Leap, December 23, 2016.