When the Delta 5 sat in front of an oil train at BNSF Delta Yard in Everett, Wash., on Sept. 2, 2014, we did not expect to stop climate disruption or dangerous fossil fuel shipments.
By ourselves, that is.
What we did expect was that our act of civil disobedience, positioning ourselves on a tripod and blocking an oil train, would help generate a rising crescendo of actions that could spur the public pressure needed to address those deadly threats. For many years, big money and corporate power have blocked large-scale climate action, so we believe that the shock, dissonance, and friction of nonviolent civil disobedience are needed to make the political system work again.
That was the essence of our “necessity defense” as we stood on trial earlier this month for allegedly trespassing and obstructing or delaying a train. The trial, which was held at a county district court in Lynnwood, Wash., from Jan. 11 to 15, marked the first time such a defense was presented in a U.S. climate or fossil fuel–connected civil disobedience case, and only the second climate necessity trial in the world. In 2008, Greenpeace climbers who scaled a coal plant stack in Britain were found innocent on the basis of climate necessity. Like those Brits, we argued that any crimes we committed were necessary to avert greater climate and fossil fuel harms.
Climate civil disobedience veteran Tim DeChristopher, who live-tweeted the event through the week, later set the trial in perspective. “In an American courtroom, activists were presenting the full case for how serious the climate crisis is, how much our government has entirely failed to address that crisis, and how powerful people can be when they step up to their responsibility to stand in the way of the fossil fuel industry.”
“It was one of the most coherent and comprehensive cases for climate action that I’ve seen anywhere,” DeChristopher continued. “It’s a tremendous resource for future activists taking their case to court.”
In our testimony, the five of us recounted the range of legal actions we took to address climate and fossil fuel threats before we crossed the line. It was a sweeping inventory of legal citizen activism.
Mike Lapointe spoke of running the Firewheel Community Coffeehouse, an activist hotbed in Everett, Wash., and running for Congress to challenge Rep. Rick Larsen’s corporate power–friendly positions.
Retired music teacher Jackie Minchew told of his climate-centered run for Everett City Council and the numerous letters and op-eds on climate change that he’s had published in the local newspaper, as well as community gardening and logging 8,000 miles on an electric bike.
Abby Brockway, owner of a house-painting company, and educator Liz Spoerri talked of their multiple efforts to keep the Northwest from becoming a fossil fuel export corridor — writing letters, speaking at hearings, participating in legal protests.
My testimony covered my long history as a professional climate activist. A founder of the group Climate Solutions back in 1998, participant in legislative campaigns and consensus-building roundtables, coauthor of a book and writer of many papers on practical climate solutions from renewable energy and electrified transportation to natural carbon sequestration. I related how I am still working on those solutions through legal currents, and will continue to do so. But that is not enough.
As I told the jury, even though I have seen progress, it hardly approaches the towering challenge of climate disruption. I spoke of the need for a World War II–scale global mobilization to begin rapidly replacing fossil fuels with solar and wind energy, and to have the job largely accomplished by 2030. That is the only way we can hope to stay anywhere close to the 1.5°C limit on global warming set as an aspirational goal in the Paris climate agreement, the minimum needed to avert runaway climate change and disruption.
Achieving this global mobilization requires massive people power to overcome the power of corporations such as Exxon, now documented to have conducted research that accurately forecasted the impacts of climate change, and then to have waged a massive lie campaign to stop public action. And to spur this people-power revolution, we need the shock to the system provided by nonviolent civil disobedience. This was the case I made in my testimony and statements acting as my own attorney. (Here’s more on why I decided to engage in civil disobedience.)
Dr. Richard Gammon, a veteran climate scientist and our expert witness on the topic, reinforced the message. He noted that studies in the past two years indicate the tipping point to massive ice loss in the West Antarctic and Greenland has been crossed. Humanity faces major sea-level rise already.
Our fossil fuel train experts also laid out a powerful case. Eric de Place of Sightline Institute noted that the Northwest is in a strategic position, “pinched” between some of the world’s largest fossil fuel reserves and growing Asian markets. Some 20 proposed export projects in the region would ship enough fuels to generate five times as much carbon pollution as the now-cancelled Keystone XL Pipeline. He also recounted the railroad industry’s invention of a dangerous new animal since 2010: the bulk oil train that serves the shale industry. Derailments have caused 10 fiery explosions and numerous spills over the past few years.
Oil train safety expert Fred Millar noted that the speeds at which easily punctured oil tanker cars can run with any level of safety are far exceeded by the speeds railroads believe they need to travel to make money. He also eloquently testified to the capture of railroad regulatory agencies by the industry.
Bellingham physician Frank James told of the health threats caused by the standard leakage of 0.5 to 3 percent of oil carried by train.
BNSF whistleblower Mike Elliott testified about how he was fired after he pressed the railroad on serious safety violations. All options are needed to overcome the power of the railroad, said Elliott, who is now regularly up against BNSF power as a rail labor lobbyist working the Washington legislature.
In the end, the Delta 5 made third base, but we did not score the full home run. That would have been an instruction to the jury to consider the necessity evidence. Instead, Judge Anthony Howard ordered the six-member jury to disregard the necessity evidence and only consider the immediate circumstances of our act. Did we trespass? Did we obstruct or delay a train?
A necessity defense requires four elements. The judge said we met three. First, defendants believed there was a danger greater than the crime committed. Second, the danger was in fact greater than the crime. And, third, we did not cause the danger. But, in the judge’s view, we did not prove the fourth element, that there were “no reasonable legal alternatives.” We always knew that would be the hurdle. And from the judge’s comments, it appears that we made our case of imminent and avertable danger more on oil trains than on climate.
In the end, we were found guilty of second degree criminal trespass, for which we will be on probation the next two years, and innocent of obstructing/delaying a train. Ironically, though we intended to delay the oil train, the railroad said it was not leaving until later that night. Meanwhile, our attorneys proved to the jury that the five trains the railroad said we did delay were actually stopped by rail managers out of “safety” concerns.
Judge Howard did deliver some compliments even as he handed down his ruling: “Frankly the court is convinced that the defendants are far from the problem and are part of the solution to the problem of climate change … they are tireless advocates that we need in this society to prevent the kind of catastrophic effects that we see coming and our politicians are ineffectually addressing. People in the courtroom learned much, including the guy in the black robe.”
We defendants met some of the jurors in the hall outside after the verdict (here’s video). They assured us that we would have been found innocent on both charges if the jury had been able to consider necessity. All six plus the alternate were with us but were constrained by the very tight instructions given to them by the judge. They thanked us for what they learned, and one or two may accompany Brockway to the Faith Action Network lobby day in Olympia.
In my closing statement to the jury, I sought to empower them. I told them that jurors are the most powerful people in the courtroom, and that no one can second-guess them. But anything that hints at the power of juries to nullify instructions from judges is strictly verboten. When I told the jurors they could do anything they wanted to uphold justice, the prosecutor objected and the judge sustained.
I couldn’t justly tell this story without a large shout-out to our team of pro bono attorneys, Bob Goldsmith, M.J. McCallum, Bridge Joyce, and Evelyn Chuang. They did incredibly hard work and put in many hours thinking through legal strategies. They got us close. And Goldsmith’s old partner Jim Roe kicked it all off. Roe, who took on many pro bono civil disobedience cases, sadly passed away before the trial. Brockway sat with a picture of Roe at the defendants’ table next to me.
We were also backed by supporters who filled the courtroom every day. The Delta 5 expected a large first-day crowd, but not packed benches and even people sitting on the floor each day. Their presence heartened us.
In a way, the verdict is the best of both possible worlds, short of actually being exonerated under a necessity defense. The innocent verdict on train obstruction makes it less likely BNSF will be able to collect an $11,000 restitution claim against us. (BNSF owner Warren Buffett hardly needs the money.) Meanwhile, the guilty verdict opens the way for an appeal on the denial of necessity. And we will appeal. Judge Howard did face an imposing body of case law weighing against the necessity defense in civil disobedience cases. We hope to set new precedents that broaden the use of necessity.
The need for civil disobedience
In planning my testimony, I strained the most to draw the connection that established the necessity of climate civil disobedience. I was least satisfied with this part of my testimony. We were trying to focus public attention, and we were trying to do it by gaining media coverage. I tried to explain the need for extraordinary acts to gain that attention. But it was not enough to pass the “no legal alternatives” bar. We are going to have to make a better case that draws out why civil disobedience is necessary even when there are legal avenues, how it is needed to make those legal channels work.
In that regard, one of the most important contributions of our trial might have been an insight from Tim DeChristopher. He has his own climate disobedience story. In 2008, he bid on a federal oil lease in Utah, aiming to prevent drilling on the land, even though he didn’t have the money to pay for it. As a result, DeChristopher was sent to federal prison for nearly two years. He wanted to conduct a necessity defense but was shut down by the judge. His experience is the topic of the movie Bidder 70.
In 2015, he founded the Climate Disobedience Center (CDC) to support climate civil disobedience and necessity defenses, along with Marla Marcum, Ken Ward, and Jay O’Hara. Ward and O’Hara in 2013 used a lobster boat to block a ship delivering coal to a Massachusetts power plant. Marcum organized support for the action. Theirs was the first U.S. climate civil disobedience necessity defense allowed in court. But as the trial started in 2014, the district attorney dropped the charges, said they were right, and went to march with them in the New York People’s Climate March the next week.
The Delta 5 were honored to be the first case CDC supported. They helped us prepare our communications and legal strategies and were with us in court.
As he watched our trial, DeChristopher had an epiphany about what makes civil disobedience uniquely necessary — what it does “that other forms of activism do not do, and why it has played such a central role in so many social movements.” As he told a post-trial gathering, “The intent of civil disobedience is to arouse the conscience of a community in order to build the kind of public pressure that is necessary to resist the corporate control of our government.” The essential act of nonviolent civil disobedience is deliberately placing one’s self in a vulnerable position. “That vulnerability rattles people out of their everyday lives,” which is just what is needed in “our apathetic, disengaged society. It does something entirely unique, and that answers the question of no legal alternatives.”
The response of the jurors to our case is strong evidence for DeChristopher’s insight. In our appeal, we will press the case for the unique and necessary role of civil disobedience in spurring the public conscience to move on climate and fossil fuel threats.
For years before our Delta 5 action, I experienced growing frustration at the repeated failures to pass legislation and enact policies that are bold enough to address the enormous threat of climate disruption. The recent Paris climate agreement underscores that — a 1.5°C aspirational goal accompanied by plans that put the world on course for 2.7 to 3.5°C global warming. That would guarantee sea-level rise of dozens if not hundreds of feet, dieback of a large portion of Earth’s species, and an acceleration of destructive storms and droughts.
Economists believe they can fit climate change into computer models and measure it in terms of dollars shaved from the gross domestic product. Historians know better. They have documented how rapid climate change disrupts human systems in ways that release the horsemen of the apocalypse — famine, pestilence, and war. I have been reading Global Crisis, a recent book about the impact of the Little Ice Age on the 1600s world when rapid global cooling caused chaos from China to Europe and up to one-third of the world’s people died. I believe humanity is on a similar course with rapid global warming. That is why I can no longer abide with business-as-usual politics that downplays the dangers or fails to mobilize the massive global action needed to avert them. That is why I crossed the line into climate civil disobedience.
We face a monumental political challenge of arousing the world to act in a very few years. But it is more than a political challenge. It is a moral-spiritual challenge that will require a revolution in values. We must move beyond mere intellectual and political approaches to a frankly spiritual activism, putting our bodies on the line, taking risks, making ourselves vulnerable, being prepared to make sacrifices. This, and only this, will move people to overcome the dark forces controlling the political system, enabling us to make the rapid changes we must to leave a world with which our children can cope.
It is up to us. The Delta 5 never expected to do it alone. We need you. Take action now. Cross the line. Disobey the law to follow a higher necessity. Do it soon. We don’t have much time left.