56952b1ec36188ab7f8b459cA recently concluded criminal trial in Washington State drew national attention when five defendants became the first group of climate activists ever to be granted the right of using the “necessity” defense in a US court to justify their actions. Five ordinary citizens, drawn together by a common concern for public health and safety, had broken into a railyard and successfully blocked a mile-long freight train carrying crude oil for the better part of a day before being arrested. Climate activists in similar legal predicaments have been consistently denied this line of defense. In a packed courtroom near Seattle the so-called “Delta 5” testified and brought in expert witnesses to argue that their deliberate act of civil disobedience was needed to prod policymakers to more aggressively face climate change, and to impose restrictions on the burgeoning but dangerous practice of transporting crude oil by rail through the Pacific Northwest. Washington State is a hub of oil-by-rail activity coming through the region; oil trains have increased in number from 9,500 in 2008 to over 400,000 in 2014, with even further significant projected increases slated for 2020 and 2025.

After several days of testimony the judge determined the strict terms for a necessity defense had not been met and instructed the jury to disregard all they had heard. Nonetheless, the six jurors had been swayed and they acquitted all five of the more serious charge of “blocking a train” and declared them guilty only of the lesser charge of “trespassing.” The five activists were spared any jail time at sentencing. Following the trial, observers reported good will and hugs between jurors and defendants, expressions of thanks offered by the judge and jury for the education, and invitations to join the activists at future events. Does the Delta 5 trial signal a shift in attitudes towards climate activism?

train1The courtroom was unusually packed for a Snohomish county trial during the week of January 11-15 when defendants Abigail Brockway, Mike LaPointe, Patrick Mazza, Jackie Minchew, and Liz Spoerri (pictured below) each faced two charges: one count of Criminal Trespass in the Second Degree, and one count of Obstructing or Delaying a Train — crimes they admitted to committing on September 2, 2014 as part of a planned action. Early that morning, Abby Brockway had strapped herself to the apex of an 18-foot metal tripod specially built to fit over the tracks at the Delta railyard owned by Burlington Northern Santa Fe (BNSF) Railway Company in Everett, Washington; her four companions had strapped themselves to the base of the tripod and refused to budge. Extremely dangerous “bomb trains” carry highly flammable crude oil filling at times up to one hundred cars (or, in this case, cars totaling one mile long), and are “rolling slowly past our hospitals, schools and homes…in small towns across the United States.” With help from the grassroots network Rising Tide Seattle, the five activists were out to raise greater awareness of the climate change threat and rising risks of oil train accidents and explosions, and to demand that Washington Governor Jay Inslee place a moratorium on oil transport by rail through the state and reject permits for new fossil fuel projects including proposed coal and oil terminals.

train2Interviewed on the scene by a local Fox TV affiliate from her perch atop the tripod, Brockway expressed the type of frustration that comes after years of attempting to influence regulators through legal channels and being chronically ignored. “This is my state. I’m so done. I’ve tried so hard, so this is just a second step. I don’t know what the third step is, I’d like to talk to the governor,” she stated. Fellow activist Jackie Minchew chimed in: “Exploding oil trains running through my town are just a reminder of how out of control the fossil fuel industry really is.” Efforts by BNSF security to talk them down were rebuffed, a fire and rescue crew was called in, and, after eight hours on the tripod, the activists were physically removed and arrested. A BNSF spokesperson later complained that the 8-hour delay cost them $10,000 in lost revenues, and that a forced delay of “one train can be millions in revenue” and “we can’t tolerate it.” That familiar complaint loses credibility and social credence when miniscule profit losses are pitted against the real-life currency of lives and livelihoods, in the name of perpetuating outdated industry standards convenient to today’s oil barons.

The action was not an isolated incident. Climate activism is on the rise, spurred by the accurate perception and shared worry that policymakers at all levels of government are not acting decisively and swiftly enough to avert catastrophic levels of climate change by taking the steps needed to shift away from fossil fuels to a less carbon-intensive economy. Groups like 350.org, US Climate Action Network, and Climate Solutions have sprung up over the last decade or two — joining more established environmental organizations like the Sierra Club, Greenpeace, and the Natural Resources Defense Council in the fight to combat the strong political and financial foothold of the fossil-based industries. These groups and others like them tap into the political power of grassroots organizing and employ a wide range of lawful tactics, such as lobbying for climate-friendly laws and regulations across the board, using the court system, and appealing directly to industry CEOs to voluntarily take steps to protect the climate. When these instruments of democracy become chronically unsuccessful, more visible methods are pursued, such as the 2014 People’s Climate March, and direct action through nonviolent civil disobedience. High-visibility public actions and mass demonstrations are becoming more routine and attention-grabbing. For example, creative thinking shined through the photogenic bevy of “kayaktivists” and bridge-hangers blocking the Royal Dutch Shell icebreaker Fennica from passing under a Portland, Oregon bridge over the Willamette River on its way to Alaska last summer.

It is inaccurate to categorically dismiss climate activists engaged in direct action (by, for example, using their own bodies to disrupt the normal flow of commerce) as anti-capitalist youth out to “stick it to the man” or to cause trouble for trouble-making sake. Noted environmental leader and 2013 Gandhi Peace Award winner Professor Bill McKibben, former GAP client/renowned retired NASA scientist Dr. James Hansen, and other accomplished professionals routinely risk arrest to more urgently compel lawmakers to act. Even CSPW founder Rick Piltz let himself get arrested (along with Dr. Hansen and approximately 140 other individuals) at a 2011 White House demonstration opposing the Keystone XL pipeline.

train3The members of Delta 5 are not kids or miscreants. They are ordinary citizens — parents, teachers, business owners of all ages — who were moved to take extraordinary measures in response to a set of extraordinary dangers imposed by continued fossil fuel reliance. In the spirit of “desperate times call for desperate measures” they willingly risked arrest in order to achieve a greater good, and sought the “necessity” defense to justify and underscore their motive — clearly articulated in a website created for the trial.

train4Their concerns are well-founded. Aside from the well-established impacts of a runaway climate system, serious hazards are associated with a 5,000 percent increase in oil train traffic just since 2008 through the Pacific Northwest, assessed in a recent report. Roughly 25 oil trains a week travel through Washington State alone — each carrying about 70,000 barrels of oil, often careening at unsafe speeds on tracks too close to home for the activists and many others. Derailments can and do occur, and when they do, fireball explosions ensue, leading to the term “train bombs” to underscore the danger. This local and regional threat is compounded by the global threat of catastrophic climate change impacts with, of course, local and regional implications for the communities in which the defendants live and work.

The “necessity” defense is predicated on convincing a jury that there simply was no other choice, no other viable alternative to knowingly committing a crime, in order to avert a much worse outcome. Climate activists in similar legal hot water have sought leniency through this relatively arcane legal tool but have been consistently denied. A watershed moment for climate activists took place when, just days before trial, Judge Anthony E. Howard made legal history by reversing his earlier decision to deny the defendants’ motion to employ the necessity defense — allowing this line of argument in court for the first time in the US for a climate action, drawing wide interest in climate change circles and attracting significant media attention.

According to various reports by local TV and radio (see here, here, and here), the courtroom was packed all week with journalists, a film crew for a documentary, and fellow activists and sympathizers. A number of trial observers set social media abuzz with blow-by-blow reporting through live-tweeting, approved by the judge, under hashtags #Delta5 and #ClimateTrial. News of the game-changing decision was also picked up by more progressive national media sources like DemocracyNow! and Truthout. One of the more recognizable faces ever to grace the Lynnwood courtroom belongs to Tim DeChristopher of Bidder 70 fame. While a student in Utah in 2008, DeChristopher caught our attention when he stumbled upon and spontaneously decided to disrupt a Bureau of Land Management oil and gas auction held in the waning days of the George W. Bush presidency — auctions he opposed because of their deleterious impact on land and the atmosphere. Employing “monkey wrench” tactics by posing as bidder number 70, he outbid oil companies for several parcels near national parks, committing fraud and confounding the sale. Denied the necessity defense at federal trial, he was found guilty and served nearly two years in prison, deemed an injustice by many including Climate Science Watch. DeChristopher, who has gone on to dedicate himself to continued climate activism and co-founded the Climate Disobedience Center, attended every day of the trial, and presented testimony he described in an essay published in The Guardian. Live-tweeting throughout the trial, DeChristopher reported on key developments (such as a former BNSF engineer on the scene during the Delta5 protest testifying that there was “no threat to safety during the action”), and offered insightful observations about the judge and deputy prosecutor Adam Sturdivant.

Each of the five defendants spoke in court; four were represented by attorneys and one, Peter Mazza, pro se. To prove they acted out of necessity, the defendants had to meet four conditions: (i.) that they were faced with a clear and imminent danger; (ii.) they reasonably expected their actions would be effective in addressing the danger; (iii.) they did not create the danger they were avoiding; and (iv.) there were no legal alternatives that would have been effective in addressing the danger. Expert witnesses were secured to help them satisfy these requirements. The expert testimony provided effectively outlines much of the reasoning for CSPW’s Oil-by-Rail Know Your Rights Campaign currently underway. For example:

  • Richard Gammon — emeritus professor of chemistry and oceanography and adjunct professor of atmospheric sciences at the University of Washington, and Intergovernmental Panel on Climate Change (IPCC) author — provided testimony summarizing how emissions from fossil fuel combustion are adversely impacting the climate, both globally and in the Northwest.
  • Rail safety expert Fred Millar addressed general safety issues associated with transporting crude oil by rail, and more specifically, how BNSF practices increase risks to communities largely unprotected by adequate preparedness and response plans in case of accidents. Because local and state regulators are too often preempted from taking appropriate action, Millar claimed (as related to Truthout reporter Martha Baskin), “oil trains continue to pose a very grave risk, and the risks have not been abated by the regulatory or legislative process.”
  • Medical physician Dr. Frank Eugene James addressed public health risks, especially to those in close proximity to rail routes.
  • Eric De Place of the Sightline Institute predicted significant increases in carbon dioxide emissions as a result of proposed fossil fuel exports from the Northwest.

Powerful testimony was also provided by BNSF former employee-turned-whistleblower Michael Elliott — a former 16-year veteran locomotive engineer at BNSF and union official with the Brotherhood of Locomotive Engineers and Trainmen. He described a history of poor safety practices at BNSF, one of the largest freight railroad networks in North America. Elliott was awarded $1.25 million by a federal court in June 2015 after filing suit against BNSF for wrongful termination and retaliation after he reported safety concerns regarding a multitude of signal system malfunctions and other problems to the railroad regulating authority that subsequently found hundreds of safety violations. A BNSF manager had even gone so far as to instigate an altercation with Elliott in the railyard parking lot in order to gin up charges against him. (Full coverage of Elliot’s whistleblower case can be found here in the Kansas City Star and Salon magazine.)

Taken together, the body of testimony painted a persuasive picture that apparently came close to, but did not fully satisfy, the strict legal requirements for a necessity defense to carry forward through jury deliberation. Judge Howard related that he could not justify breaking from strong legal precedent, “no matter what my personal beliefs might be” as reported by The Guardian and others. Just before instructing the jury to disregard all the testimony they had heard all week, he uttered from the bench what we deem to be the centerpiece quote of the trial:

“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.”

train5Evidently the jury of six concurred, acquitting all five defendants of the more serious charge of blocking a train that carries a two-year jail sentence, and obeying guidelines by finding them guilty of trespassing that carries a 90-day sentence. However, as reported by the Seattle Times, Judge Howard quickly suspended the 89 days remaining after the group had spent a night in the county jail after their arrest, imposed moderate fees and court costs, and placed the group on 2-year probation.

So, zero jail time for the Delta 5. As everyone exited the courtroom, Abby Brockway expressed satisfaction with what “was probably the best verdict that could have been returned” and exchanged a hug (see image to the right) with jury foreman Joe Lundheim, a touching moment observed and photographed by Sydney Brownstone writing for The Stranger.

Hallway banter continued, Brownstone reports, with jurors pledging future action on the twin threats of climate change and oil trains as a result of the moving testimony. One of the defendants, coffee shop owner Mike LaPointe, voiced a sentiment likely shared by the defendants and their supporters alike:

“Welcome to the movement!”

Media fallout from the trial strikes a similar positive note. Yes! Magazine declares the Delta 5 ordeal “actually a big win” even after the “loss” endured in ultimately being denied the necessity defense and thus a new legal precedent scored for climate activists everywhere.

Writing for The Daily Beast, Harvard Law student and co-founder of the Climate Defense Project Ted Hamilton provides a timely and informative treatise of lawbreaking as a legal defense for climate activists defending the planet, citing the Delta 5 experience and a very similar case set to go to trial next week for a group dubbed the “Montrose 9” who effectively shut down work on the Algonquin gas pipeline in Westchester County, New York.

Law professor and legal scholar Dr. Tara Smith observes from her academic post in the United Kingdom the sheer difficulty climate activists face in establishing convincing proof of no reasonable legal alternative to their unlawful actions and that, at the moment, necessity is not a reliable legal defense for avoiding a criminal record. Though the judge and jury for the Delta 5 case were sympathetic, she notes in the US edition of The Conversation, it wasn’t enough for an entirely successful defense. “As the effects of climate change become more and more noticeable, perhaps there will be no reasonable legal alternative in the future but to follow in their footsteps,” she resolves, adding a note of hope that “the law just might keep pace.” Time will tell.

The question in everyone’s mind seems to be something like this: Should climate activists seeking to raise the critical awareness needed to avert catastrophic levels of climate change be allowed to engage in peaceful protest and not suffer the full force of the law to do so? Given the high stakes and time-sensitive nature of the climate problem, together with a host of other menacing maladies and unpleasant problems stemming from our heavy dependence on fossil fuels, public opinion will undoubtedly remain split. Whether or not the Delta 5 trial will be seen as marking a more lasting shift in attitudes toward climate activists is yet to be seen. One take-home lesson from the courage shown by the Delta 5 and others like them across the nation might be this:

Rather than “shooting the messenger” by simply locking up climate activists who temporarily disrupt business as usual in our doomed fossil-based economy to make a point essential to the future of our planet as we know it, we might do better to heed the message they are so willing to sacrifice themselves to make.


Senior CSPW Contributor Anne Polansky has 30 years of experience in public policies relating to energy and the environment, with a strong focus on climate change and renewable energy.