“Stunning”: State Court Silences Climate Experts Set to Testify in Valve Turners’ Necessity Defense Trial “Four days before trial, for no apparent reason, the court eviscerated our defense, and essentially overruled itself.” Excerpts below in italics with my bolds.
Minneapolis October 8, 2018 In an eleventh hour decision, a Minnesota court “eviscerated” the defense of three activists—whose landmark trial began Monday for their 2016 multi-state #ShutItDown action that temporarily disabled tar sands pipelines crossing the U.S.-Canada border—by barring experts from testifying that their civil disobedience was necessary because fossil fuels are driving the global climate crisis.
While all charges against Steve Liptay, who filmed the Minnesota action, have been dropped, valve turners Emily Nesbitt Johnston and Annette Klapstein, along with their support person, Benjamin Joldersma, are still facing felony charges under Minnesota state law. Their legal team will now have to present their “necessity defense” without the slate of experts who had agreed to explain the climate crisis and the impact of civil disobedience to the jury.
This “stunning” reversal came after an appeals court ruled in April that they could present a necessity defense, a decision upheld by the Minnesota Supreme Court in June. The rulings were celebrated by climate activists and experts nationwide as courts in Washington, North Dakota, and Montana blocked requests from fellow valve turners’ on trial for the 2016 action to present such a defense.
“We were looking forward to entrusting this case to a Minnesota jury of our peers to decide after hearing expert scientists and social scientists discuss the facts of climate change and public policy,” said Klapstein, a retired attorney.
“By requiring us to establish the necessity defense, without allowing us to use our planned expert testimony to do so, the court has placed an overwhelming burden on us,” she added. “I’m baffled by the surreal nature of this court’s decision and timing.”
“Four days before trial, for no apparent reason, the court eviscerated our defense, and essentially overruled itself,” said Johnston. “It is impossible for us to properly defend ourselves without expert testimony.”
Experts that had planned to testify include climate scientists Dr. Jim Hansen, Dr. Mark Seeley, and Dr. Peter Reich; public health expert Dr. Bruce Synder; Princeton professor Dr. Martin Gilens; Harvard Law professor Lawrence Lessig; nonviolent direct action historian and Albert Einstein Institution executive director Jamila Raqib; 350.org co-founder Bill McKibben; and oil infrastructure expert Dr. Anthony Ingraffea.
Minnesota District Court Judge Robert Tiffany claimed their testimonies would be confusing to the jury, Climate Direct Action said in a statement on Monday.
“The irony is that the judge may be proving our point—we acted as we did because we know that the paralysis and myopia of the executive and legislative branches with regard to climate change mean that the political system itself must be shaken up if there is to be any hope for all of us,” Johnston noted. “We were hoping that the judiciary might show the way.”
Minnesota judge tosses charges midtrial against 3 activists
Excerpts in italics with my bolds.
MINNEAPOLIS (AP) October 9, 2018 — A Minnesota judge abruptly dismissed charges against three climate change activists during their trial on Tuesday, saying prosecutors failed to prove that the protesters’ attempt to shut down two Enbridge Energy oil pipelines caused any damage.
Clearwater County District Judge Robert Tiffany threw the case out after prosecutors rested their case and before the protesters could use their defense: that the threat of climate change from using crude oil drilled from Canadian tar sands was so imminent that the activists’ actions were not only morally right, but necessary.
The attorneys had long fought to use a “necessity defense” during the trial of the three Seattle-area residents, two of whom admitted turning the emergency shut-off valves on the northwest Minnesota pipelines in 2016 as part of a coordinated action in four states. Such a defense has been used by other activists protesting pipelines.
Their attorney, Lauren Regan, acknowledged outside the courthouse in Bagley that she and her clients were surprised that the judge granted their motion to dismiss the case. The three defendants faced felony charges involving criminal damage to critical public service facilities. They could have faced up to a year in jail, according to prosecutors.
“I’m very relieved the state of Minnesota acknowledged that we did no damage and intended to do no damage,” defendant Emily Johnston said. “I also admit that I am disappointed that we did not get to put on the trial that we hoped for.”
Clearwater County Attorney Alan Rogalla declined to comment afterward.
Climate change activists have increasingly turned to direct actions against oil and gas pipelines, with mixed legal success . Valve-turner cases in other states resulted in convictions that are under appeal. A Massachusetts judge in March cleared 13 gas pipeline protesters who used a necessity defense. While the cases generally have not set binding legal precedents, activists are hoping they help legitimize direct action as a tactic against climate change.
In the Minnesota case, Johnston and Annette Klapstein readily acknowledged turning the emergency shut-off valves on two Enbridge Energy pipelines on Oct. 11, 2016, near Leonard, about 210 miles (338 kilometers) northwest of Minneapolis. A third defendant, Ben Joldersma, called in a warning to Enbridge. Charges were earlier dropped against a fourth defendant.
They did it as part of a coordinated action by Climate Direct Action activists to shut down five Canadian tar sands crude pipelines in Minnesota, North Dakota, Montana and Washington state. A total of 11 activists were charged in the four states.
Calgary, Alberta-based Enbridge temporarily shut down the two pipelines as a precaution before any damage occurred. The company issued a statement Tuesday saying the protest was “reckless and dangerous.”
“The individuals involved in these activities claimed to be protecting the environment, but they did the opposite and put the environment and the safety of people at risk — including themselves, first responders and neighboring communities and landowners,” the company said.
The defendants insisted there was never any danger.
“We did everything in our power to make sure this was a safe action, and we did this to protect our children and all of your children from the devastating effects of climate change,” Klaptstein said at the activists’ news conference afterward.
While the judge took the unusual step of allowing allowed the necessity defense in a ruling last October, he said the defendants had to clear a high legal bar to succeed. He said the defense applies “only in emergency situations where the peril is instant, overwhelming, and leaves no alternative but the conduct in question.”
The valve turners had hoped to put climate change itself on trial by presenting expert witnesses who would have backed up their claims that climate change was making natural disasters worse, and that the threat of climate change from Canadian tar sands crude — which generates more climate-damaging carbon dioxide than other forms of oil — was so imminent that they had no legal alternatives. But they never got the chance.
I am not sure what to make of this. The rejection of expert climatists is encouraging since the courts are in no position to judge scientific positions. The dismissal of the charges in a way avoided a messy situation for the court. If no damage was done, it was the easy way out to dismiss the charges before going through a show trial before a jury, and as an additional benefit preventing grandstanding by professional activists.