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Washington Appeals Court: Evidence May Prove Climate Action Against Tar Sands Pipeline Was Necessary

A Washington state appeals court concluded a trial court violated the constitutional rights of climate activist Kenneth Ward, who engaged in civil disobedience against Kinder Morgan, when he was prohibited from presenting a necessity defense.

“Ward’s past successes in effectuating change through civil disobedience in conjunction with the proposed expert witnesses and testimony about Ward’s beliefs were sufficient evidence to persuade a fair-minded, rational juror that Ward’s beliefs were reasonable,” according to the appeals court.

Such evidence should not have been excluded from his trial and deprived him of his right under the Sixth Amendment to rebut criminal allegations.

“I am very heartened that the appeals court recognized the validity of a necessity defense, in light of abundant evidence that the climate crisis is at a tipping point, and that our government is utterly ineffectual,” Ward declared. “I look forward to putting the true facts of my case before a jury.”

On October 11, 2016, Ward participated in a national day of action against the transportation of tar sands oil by pipeline from Canada to the United States. Ward cut off a padlock at a Kinder Morgan pipeline facility, closed a valve on the Trans-Mountain pipeline, and placed sunflowers on the valve.

Direct actions in North Dakota, Montana, and Minnesota involved valve-turning as well. The flow of tar sands oil from Canada into the U.S. was temporarily halted.

Ward was charged with burglary, criminal sabotage, and criminal trespass. The state of Washington filed a motion to block Ward from presenting evidence that what he did was covered by the necessity defense.

Two trials took place. One trial resulted in a hung jury. The state of Washington charged Ward again with burglary and criminal sabotage. Ward urged the trial court to reconsider the state’s motion that blocked his ability to present evidence supporting a necessity defense. The trial court denied his motion, and he was found guilty of burglary and appealed the verdict.

The appeals court determined Ward submitted sufficient evidence for each element of the necessity defense, which means the trial court violated his constitutional rights.

In order to prove a necessity defense, a person must prove they “reasonably believed the commission of a crime was necessary to avoid or minimize harm.” They also must prove the harm they sought to avoid was “greater than the harm resulting from the violation of the law.”

Additionally, a person has to show the “threatened harm was not brought about by the defendant” and “no reasonable legal alternatives” existed for preventing the greater harm.

The appeals court maintained the question of whether Ward’s beliefs were “reasonable” was a question for a jury. He did not “have to prove that the harm he sought to avoid or minimize was actually avoided or minimized.” It was enough to show that he broke the law in an “attempt to avoid or minimize harm.”

The decision from the appeals court went through each of the elements and considered all the pieces Ward planned to present in a manner most favorable to the accused. As the court outlined, he planned to show the harms of global climate change were greater than any harm that occurred when he broke in to Kinder Morgan’s property.

His proof that direct action was necessary included examples of previous climate activism and evidence related to his work over the past 40 years on environmental issues, where the “majority of his efforts failed to achieve effective results.”

Importantly, Ward’s evidence did not solely constitute evidence that his protest was symbolic. He was not simply protesting climate change “as a whole.” He recognized that what he was doing could help “alleviate” the “danger of Canadian tar sands oil” or the danger climate change posed to the state of Washington.

According to Ward, he contended that “Canadian tar sands is a uniquely potent contributor to climate change,” and the “localized impacts of climate change on Washington” have the potential to be particularly “debilitating.”

The decision highlighted more of the specifics Ward planned to present to a jury:

Ward argued that “tar sands oil represent[s] an elevated level of risk to global climate[,]” and that he felt he needed to act “in order to stop the advance of global warming, encompassing both current and projected warming in Washington state, ocean acidification, and impacts on local ecosystems and residents.” Further, Ward argued that his “temporary shut-down of tar sands oil flowing through the Trans Mountain Pipeline certainly minimized the harm flowing from that quantum’s contribution to climate change. . . and from the use of tar sands in particular.” Ward also introduced exhibits about the danger that sea level rise poses to Washington.

“Based on the specific harms that Ward asserted he was trying to avoid, his actions were not merely symbolic,” the appeals court determined. “The protester’s intent was to physically stop the flow of Canadian tar sands oil into the United States. Because one of the specific harms Ward asserted was that Canadian tar sands oil is a particularly potent contributor to climate change, the protest was not a purely symbolic act. It was a direct way of preventing a uniquely potent contributor to climate change from entering the United States.”

The Civil Liberties Defense Center, which represented Ward at trial and during his appeal, said the “state of Washington has 30 days to appeal the decision to the Washington Supreme Court.” A motion to reconsider can also be filed with the appeals court. If there is no appeal, a third jury trial will be scheduled.

The victory for Ward came as President Donald Trump prepares an executive order to speed up the approval process for oil and gas pipelines and make it harder for states to block such projects.

“This is a massive abuse of power that does nothing other than line the pockets of Trump’s fossil fuel billionaire friends, all at the expense of our democracy and our safety,” stated May Boeve, 350.org executive director. “Trump can try to rewrite regulations in favor of Big Oil, but he can’t stop people power and our movement.”

“We will continue to fiercely oppose dirty projects like Keystone XL through the U.S. heartlands, the Williams pipeline in New York, and many more across the country.”

Finally, state legislatures continue to pass laws to further criminalize direct actions by climate activists. South Dakota was the latest state to sign a package that will help officials crack down on pipeline protests. It was developed through consultation with Trans Canada and police officers.

The ACLU of South Dakota filed a lawsuit on March 28 to block one law in the package, the Riot Boosting Act, which the chapter says violates the First and Fourteenth Amendment.

The law “gives the state the authority to sue any individual or organization for ‘riot-boosting,’ or encouraging a protest where acts of violence occur. The law mirrors two existing state laws that criminalize similar speech,” the ACLU of South Dakota said. “Under the laws, individuals and organizations—regardless of their intent to incite violence, the likelihood that their speech or conduct would result in violence, or the imminence of the intended violence—could be subject to civil and/or criminal penalties.”

“Moreover, the laws do not clearly describe what conduct or speech is considered ‘riot-boosting’ or ‘encouraging’ a riot. The ACLU argues that such vague and broad language invites arbitrary enforcement, will chill protected speech, and will result in indiscriminate targeting of peaceful organizers.”

That states like South Dakota dismiss the threat of global climate change and move to protect energy companies from climate activism makes the appeals court decision in Washington even more crucial.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."