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Judge Nixes Climate Change Defense

In October, 2016, a small group of climate-change activists entered a Kinder Morgan TransMountain oil sands pipeline facility near Anacortes, Washington and turned on the emergency shutoff valve. The group was led by of Ken Ward and Jay O’Hara, of Climate Direct Action, and are among several climate activists now facing severe felony charges for shutting the emergency valves on pipelines carrying oil sands. This landmark case started in January in front of Judge Michael E. Rickert of Skagit County Superior Court in Washington State, who has, for a second time denied Ward’s and O’Hara’s request for a “necessity defense” which establishes a legal defense in cases where a defendant acted to prevent greater harm.

Ward has argued that his actions were necessary to prevent worse climate harms. Judge Rickert’s decision bars Ward’s defense team from calling expert witnesses and submitting evidence about the impact of the oil sands pipeline have on climate change.

Climate Direct Action claims their action was taken to support the Standing Rock Sioux Tribe, which is protesting construction of the $3.7 billion Dakota Access pipeline carrying oil from North Dakota to the U.S. Gulf Coast over fears of damage to sacred land and water supplies.

pipeline shutitdown

Photo:  https://www.facebook.com/climatedirectaction/

Last week was the second time Judge Rickert ruled to deny the defendants the necessity defense. In the pre-trial hearing at the beginning of the year, the judge questioned the existence of climate change, saying, “there’s tremendous controversy over the fact whether it even exists. And even if people believe that it does or it doesn’t, the extent of what we’re doing to ourselves and our climate and our planet, there’s great controversy over that.” But Ward did testify about the motives for his actions, and the first trial ended in a hung jury, as one or more jurors refused to convict him.  Judge Rickert declared a mistrial in January and scheduled the second trial for May. Just this week, at the second trial, the judge again denied requests to let juries hear evidence about climate change.

Ward acted in conjunction with other “Shut It Down” valve turners who simultaneously did likewise in Minnesota, Montana and North Dakota who were responding to a call for action from the Standing Rock pipeline protest in North Dakota.  Together, these five activists plus four helpers succeeded in temporarily halting the flow of carbon-intensive Canadian oil sands into the US.

The facts of Ward’s case are established and not in dispute. What is at issue is whether Ward’s actions were justified since he acted to prevent  worse climate harms from the use of carbon-intensive oil sands, and whether he has the right to make that case before a jury.  He contends that since he worked in the climate movement for decades and exhausted all legal avenues to reduce fossil fuel exploitation and greenhouse gas emissions, direct, principled citizen climate action is legally justifiable and “necessary.”

The other climate activists who face charges for taking part in a related “valve turner”  are  Annette Klapstein, Emily Johnston, Ben Joldersma, and documentarian Steve Liptay, who are also pursuing a necessity defense.  Their pre-trial hearing is scheduled for May 30 in Clearwater County District Court in Bagley, Minnesota.

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