It’s pretty easy to paralyze America’s oil infrastructure. All Emily Johnston and Annette Klapstein needed was a set of 3-foot-long green-and-red bolt cutters. And a willingness to go to jail for years.
On October 11, 2016, as they pulled up to an oil pipeline facility in the farm fields outside Leonard, Minnesota, the pair were bent on taking direct action to address climate change, since, they figured, the US government had failed to do anything about it. “This is the only way we get their attention,” Klapstein said on video before she got out of the car. “All other avenues have been exhausted.”
By “their,” she meant policymakers and oil companies (and, by extension, you and me). Johnston, now 52, is a poet and cofounder of the Seattle chapter of climate action group 350.org. For years, she’d done all the things law-abiding climate change activists do: filed petitions, lobbied legislators, hosted speakers, wrote letters, blockaded refineries, and tried to block Shell from moving their drilling rigs into the Arctic. Klapstein, 66, is a retired attorney from Bainbridge Island, Washington, whose job was to protect fishing rights for the Puyallup tribe. With her group, the Raging Grannies, her actions included blocking oil trains while chained to a rocking chair. They’re both white, middle-aged. Law-abiding folks. Except when they’re mad.
It was a cold morning, aspens shaking their dull gold under heavy skies. A fellow activist, Ben Joldersma, livestreamed to Facebook as the two women cut the chains around fenced enclosures containing large shut-off valves for two oil pipelines owned by the Canadian multinational Enbridge. The pipes carry crude oil from deposits of tar sands (also referred to as oil sands) in Alberta, transporting it to Lake Superior. Because making petroleum products from this goo—called bitumen—releases more global-warming emissions than most other oil sources, the activists were going to do what they could to keep it in the ground.
about the author
name=”inset-left” class=”inset-left-component__el”>Dean Kuipers writes about the environment, politics, and the arts and is the author, most recently, of a forthcoming memoir, The Deer Camp.
Enbridge was well aware they were there: About 15 minutes before they cut their way in, an activist named Jay O’Hara with the Climate Disobedience Center in Seattle had talked to Enbridge staff on the phone and warned them that protesters were going to be closing the valves on Line 67 and Line 4, each of which hum with 33,000 gallons of crude oil per hour.
What only a handful of people knew, however, was that Johnston and Klapstein were part of a nationwide action dubbed #ShutItDown that would also choke off pipelines at three other locations in North Dakota, Montana, and Washington State that day, moving east to west. They referred to themselves as the Valve Turners, and Reuters called their effort “the biggest coordinated move on US energy infrastructure ever undertaken by environmental protesters.” On that day, five principal activists—Michael Foster, 54, Ken Ward, 61, and Leonard Higgins, 66, in addition to Johnston and Klapstein—cut off 70 percent of the oil from tar sands that flows into the US from Canada.
With the chains cut, Joldersma, 40, called Enbridge again and gave their names and location. Then he added: “For the sake of climate justice, and to ensure a future for human civilization, we must immediately halt the extraction and burning of Canadian tar sands. For safety, I’m calling to inform you that when I hang up this phone, we are closing the valves.”
Even as Johnston and Klapstein entered the enclosures, they could see and hear that Enbridge was already closing one of the valves remotely: A tall plunger or screw device was dropping as a gate shut in the underground pipe. On the other valve, they cut the lock on a large steel wheel that allowed for manual shut-off and cranked it for “I don’t know, seven or eight minutes,” Johnston told me later, until it too was closed.
It took almost an hour for Clearwater County sheriff Darin Halverson to show up with some deputies. When he did, according to Johnston, he said, “Well, you don’t look too dangerous to me,” and arrested everyone, including videographer Steve Liptay, who was also present but whose charges were later dropped. No one was even cuffed.
Getting arrested was part of the plan. Across the country, the Valve Turners and their support teams had closed the valves in the hope of getting into court to present to a jury what is called a “necessity defense,” arguing that their crime was an act of civil disobedience meant to prevent a greater harm—in this case, death by climate catastrophe. If the plan worked they would create a legal precedent that would put a powerful new tool in the hands of eco-warriors.
Necessity may be the mother of invention, but it’s also the child of desperation. The Valve Turners knew the pipelines would be turned back on in just a few hours. They needed to get into the courts, convince a jury, and prove to policymakers that people wanted real change. The point was to turn acts of necessity into a politics of necessity.
How would that happen? Johnston likes to cite a book by Mark and Paul Engler called This Is an Uprising, in which they describe how years of slow and patient work suddenly coalesce and unleash the “moment of the whirlwind.” She hoped to start it spinning.
Clearwater County, Minnesota, however, is not a place you’d choose if you were going to have a trial affirming climate change. According to Yale’s Climate Opinion Maps, only 62 percent of people in Clearwater County believe global warming is happening (the national average is 70 percent), and most of those don’t tie it directly to oil. Loads of people there are employed by the pipelines in some way, or hope to be employed building Enbridge’s new Line 3, which will also carry oil from tar sands. Yards all over the rural county are festooned with blue signs that read “Minnesotans for Line 3.”
But this is where the pipelines are and where the activists had chosen to make a stand. “I had lost a lot of sleep in the run-up, concerned that there be no damage of any kind,” Johnston said. “So when we saw them shutting the first pipeline down, there was definitely a small feeling of triumph or gladness. To have even a brief sense of that kind of impact and efficacy was powerful.” Klapstein, for her part, said she felt “very calm,” that “this was what I needed to be doing, here in this time, facing this massive emergency. That I was doing everything in my power to ensure that my children had a future. That is the most important thing I can be doing, as an older person.”
Joldersma was less calm. A tall, thin CTO of a Seattle tech firm called Maven who has formerly worked at Microsoft and Google, he was a relative newcomer to direct action. He also had three young children. “I had a lot of fear of going up against the fossil fuel state power complex,” he says.
Johnston was charged with felony damage to “critical public service facilities,” plus other charges that could put her in prison for decades, and Klapstein and Joldersma were ultimately charged with aiding and abetting. Enbridge released a statement to WIRED calling the undertaking “reckless and dangerous.” It read: “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.”
And yet, Clearwater County district judge Robert Tiffany shocked just about everyone in October 2017 when he issued a short memorandum granting a necessity defense to the Minnesota Valve Turners. The defense had been used by anti-nuclear-weapon and antiabortion defendants, but it was the first time such a defense would ever be put before a jury in a climate case.
“The necessity defense is something that I’ve been working on for almost 20 years, and other lawyers too,” says Lauren Regan of the Civil Liberties Defense Center in Eugene, Oregon, who was lead attorney in the Minnesota Valve Turner trial. “People were comparing this trial with the Scopes monkey trial. In the Scopes trial, evolution was on the stand and people were trying to prove whether evolution was real or not, and in this case, especially in our current political moment, it’s basically climate science that is on trial.”
To that end, Regan and her co-counsels, Kelsey Skaggs of the Climate Defense Project and Minneapolis attorney Tim Phillips, spent months lining up a dream team of expert witnesses. These included James Hansen, former director of NASA’s Goddard Institute for Space Studies, whose 1988 testimony before Congress first brought climate change to the public’s attention and who determined that 350 parts per million was the safe amount of CO2 we could have in the atmosphere (level as I write this: 405). Also invited was Bill McKibben, whose 1989 book The End of Nature was a climate wakeup call and who cofounded 350.org; Anthony Ingraffea, an oil transport expert who wrote pipeline safety protocols currently used by the American Petroleum Institute; and eight others talking about the health effects of global warming and the efficacy of civil disobedience.
Their job was to convince a jury that our government has taken so little action to reduce the use of fossil fuels—even under Barack Obama—that concerned citizens have no choice but to intervene.
Tar sands oil has been at the howling center of climate protest for years. The embattled Keystone XL pipeline project, for instance, would also carry tar sands oil. “This is really the dirtiest oil on earth, in carbon terms,” McKibben says by phone from Vermont. It’s a mixture of bitumen and sand about as gooey as peanut butter. “In many cases you have to burn natural gas to heat the ground to get the stuff to actually flow, even before you burn it in somebody’s car and produce more carbon. If you set out to build a machine to wreck the climate, it would look like the Alberta tar sands.”
Testimony like that could change minds, especially with horrible storm events like Florence and Michael being the new normal. But the necessity defense is almost never granted because the burden of proof is so hard to meet. As defined in the proposed jury instructions, the defense would need to prove:
- First, the harm that would have resulted from obeying the law would have significantly exceeded the harm actually caused by breaking the law.
- Second, there was no legal alternative to breaking the law.
- Third, the defendant was in danger of imminent physical harm.
- Fourth, there was a direct causal connection between breaking the law and preventing the harm.
Because the activists were charged with state crimes, each of the four states where the 2016 Valve Turner actions took place handled them differently. Regan led the defense in all four and planned to use the necessity defense in all of them. But as the trials rolled out in 2017 and 2018, only Minnesota granted the use of the necessity defense. In North Dakota, Montana, and Washington State, judges disallowed it, determining what an activist’s motivation is allowed to be, and how much a jury is allowed to know.
The judge in Washington said Ken Ward, an East Coast transplant in Oregon and former deputy director and COO of Greenpeace USA, had not exhausted his legal options to slow climate change. For instance, he could support political candidates. Still, Ward did present a modicum of climate science to explain his “state of mind” during the action, and he was sufficiently convincing that he got a hung jury on burglary and sabotage. He was retried on both charges and got a hung jury again on the sabotage count but was convicted of burglary. He was sentenced to two days in jail and 30 days of community service, which he has already completed, though he is appealing on the basis that he was not allowed to present a necessity defense.
Similarly, Michael Foster, a family therapist and environmentalist from Seattle, was convicted of felony criminal mischief and conspiracy and misdemeanor trespass and sentenced to one year in prison and three years’ probation, which he served in North Dakota. Leonard Higgins, a retired state government IT executive manager from Eugene, Oregon, was convicted of felony criminal mischief and misdemeanor trespass and sentenced to $3,755 restitution and three years in prison, deferred, which means it can be expunged from his record once his probation in Oregon is done.
No federal charges were filed by the Obama administration. However, on October 23, 2017, 84 members of the House signed a letter decrying “recent attempts to disrupt the transmission of oil and natural gas” and calling on attorney general Jeff Sessions to prosecute. It cited the Valve Turners’ attempted sabotage. So far, no action.
The Minnesota case, however, has given the necessity defense some legal traction. The county prosecutor in Minnesota appealed Judge Tiffany’s ruling on the defense, but the Minnesota Court of Appeals upheld the decision 2–1 in April. The Minnesota Supreme Court refused to hear further appeal, so the use of the necessity defense at jury trial now has precedent, at least in the state of Minnesota.
“I have been waiting 10 years for a real climate necessity defense case,” says Tim DeChristopher, sitting with me in the old brick VFW Hall bar in Bagley, Minnesota, the tiny burg where the Clearwater County courthouse sits. In 2008, DeChristopher fraudulently purchased oil and gas leases on Bureau of Land Management parcels in Utah’s red rock country for $1.7 million, with no intention of paying for them. He believed that climate change was already so advanced that civilization was threatened, but his own necessity defense was denied and he served 21 months in prison. “I was not able to talk about climate change, not able to talk about my own motivations,” he says.
Since then, however, more and more judges have seemed open to the defense. Ken Ward and Jay O’Hara were involved in a now famous action in May 2013, when they used a 32-foot lobster boat to block a freighter carrying a load of coal to the Brayton Point power plant in Somerset, Massachusetts. The day of their trial, prosecutor Sam Sutter announced that he was dropping the criminal charges, saying, “Climate change is one of the gravest crises our planet has ever faced.” Sutter subsequently ran for mayor of Fall River and won, and the utility decided to close the Brayton Point plant.
In the 2016 trial of activists known as the Delta 5, who had blocked train tracks used by crude-oil trains in Everett, Washington, the judge allowed them to present expert witnesses to argue necessity in court, but then did not allow the jury to consider that defense. Though they were convicted of trespassing, the judge declared from the bench that the activists were “part of the solution” to climate change.
Just this year, DeChristopher and a group of other activists actually did win a necessity case, though it was not by jury trial. In that case, 14 people, including DeChristopher and Karenna Gore, daughter of Al Gore and director of the Center for Earth Ethics at Union Theological Seminary in New York, were charged with civil infractions after disrupting construction of a high-pressure gas pipeline being built through the Boston suburb of West Roxbury. At the hearing early in 2018, Judge Mary Ann Driscoll found them “not responsible” by reason of necessity.
Still, DeChristopher points out, the necessity defense will not be fully legitimized until a jury decides: This is real. “If a jury of 12 random people unanimously says that climate change is so serious, and our government’s response to it is so inadequate, that it necessitates this kind of action by regular people—that, I think, is groundbreaking,” he says.
Regan notes that, in all three previous Valve Turner trials, very rural, conservative, law-and-order juries were transformed: “They would say things like, ‘Don’t come back here and do it, but thank you for what you were trying to do, and thank you for caring about our kids.’ These folks really made a long-term impact on those communities where the cases were held.”
On the day the trial began in Bagley, October 8, 2018, the Nobel Prize–winning UN Intergovernmental Panel on Climate Change came out with a sobering report that raised the stakes. The IPCC, which has long been considered the voice of global scientific consensus, said that rigorous carbon emission reductions had to be achieved by 2030 to limit global temperature rise to 1.5 degrees Celsius, the low end of a scale at which massive global habitat loss for plants and animals—and, subsequently, us—begins. The report made clear that climate catastrophe isn’t happening in the far-off future. It’s happening now.
As Regan queried the assembled jury pool in Bagley, it became equally clear that the US is still far from a politics of climate necessity. “I don’t believe there is any global warming,” one middle-aged woman said. When Regan pressed her on whether she saw changes in storm severity on the news, she added, “Changes? Yeah, it’s getting colder.”
“I think it’s a hoax,” another said.
Another woman barked out at Regan, “Is this actually pertinent to this trial, or are you just wasting our time?!”
A majority of people in Clearwater County might believe that climate change is real, as the Yale Climate Opinion Maps found, but lots of them were reluctant to say so in public. Of the 55 people in the jury pool, a hilarious percentage of whom had Swedish surnames, some acknowledged that global warming was happening, but they were quick to add that they didn’t believe oil pipelines were the problem. One man was called in without any other potential jurors present and explained in very moving terms that he taught in a local school and risked damaging his professional standing for expressing his opinion. Almost everyone knew someone else in the room, including husbands and wives, and many had family members with jobs dependent on the pipeline. One man summed it up by saying he believed the climate was changing, “but I ain’t ready to blame it all on fossil fuels.”
David Hanson, the former county attorney in Clearwater and now the county attorney in neighboring Beltrami, warned in comments to Minnesota Public Radio that a favorable ruling in this case would threaten public safety. “They’re going to take their First Amendment right to assemble, and they’re going to push it beyond the right to assemble,” he said. “They’re going to start committing more crimes.”
After careful questioning by Regan, however, some jurors were identified who cared deeply about climate change. A soft-spoken, white-haired farmer named John Gunvalson, who has six pipelines running through his property in Gonvick, said he was trained in soil science and knew climate change was scientific fact. “It’s pretty ironic that when people get sick they go get the best medical care they can, but on global warming they don’t go with the best science available,” he said in court.
Gunvalson was cut from the jury by county prosecutor Al Rogalla. Afterward, Gunvalson told me, “It’s like the world has stood still for 40 years around here. No one seems to pay any attention to new knowledge.”
You can see the value of having a Clearwater County jury declare that it’s necessary to stop climate change. But it never got the chance. As abruptly as I write this sentence, the judge himself acquitted the Valve Turners on all counts. His courtroom would not be the start of the whirlwind.
Judge Tiffany had surprised everyone just before the trial began by severely limiting the expert testimony for the defense, cutting the list of defense witnesses from 11 to four. Hansen, McKibben, Ingraffea, and Twin Cities neurologist Bruce Snyder were still scheduled to appear, and it was going to be a hell of a show. In the course of normal courthouse negotiations meant to simplify the trial, the list of charges had been reduced to two—damage to critical infrastructure (Johnston) as well as aiding and abetting (Klapstein and Joldersma)—and when Rogalla presented his evidence to the jury, the only physical damage he cited was the cut chain. That, on its face, didn’t meet the statutory standard of “damage” to the pipeline, Judge Tiffany decided. He had remarks prepared to that effect, and he read them out loud and banged his gavel. The defendants were free to go.
The state lost and still clearly got the better outcome. There were no backroom negotiations with the defense, because Regan and her defendants were eager to present their case. There seemed to be little risk to the state or prosecutor Rogalla to proceed with the trial, since so many jurors were saying openly that they were pipeline supporters and chances were slim that they would have acquitted for reasons of necessity. But Regan and her co-counsels had lined up a fair amount of scientific firepower that could have showed how Clearwater County was due to be negatively impacted by global warming, and juries in the other Valve Turner trials had been very impressed by this same kind of locally targeted information
Rogalla seemed in a good mood for just having lost his case. He hugged Klapstein when she came across to shake his hand. Asked if there had been some kind of deal between him and the judge, he said only, “The state presented all the evidence it had available to prove the case. The judge decided that cutting a chain was not enough. This county prosecutor respects Judge Tiffany’s decision.”
Not everybody was buying that. “It seems like they didn’t want to talk about climate change,” Leonard Higgins told me.
The Bagley decision, however, left the door open to the necessity jury trial they wanted. Maybe in some other county. Regan pointed out that the Minnesota Appeals Court ruling means the necessity defense can now be used in other jury cases, at least in that state. She also noted that Judge Tiffany’s acquittal further restricted the meaning of “damage” under the statute. Her office in Oregon has trained activists for years on what to do once they get arrested; despite her warnings that the necessity defense is hard to use, she gets a call “about once or twice a month” from climate activists who are considering using it.
Meanwhile, activists all over the country are interfering with oil and coal infrastructure, blockading the Dakota Access Pipeline in North Dakota, temporarily shutting down construction of a section of the Bayou Bridge Pipeline in Louisiana, killing plans for coal ports in Portland, Oregon, and other towns, locking themselves to the doors of banks to get them to divest from fossil fuel projects. Even as some 30 states have introduced bills to beef up their antiprotest laws, activists are swarming. If one of them were to draw federal charges in a city like New York or San Francisco, where science has more sway and jurors are more liberal, maybe national policy could be changed by one trial. Maybe that’s why Sessions hasn’t gone after climate change activists despite that letter from Congress asking the DOJ if it planned to ramp up its prosecution of environmental protesters.
Out on the steps of the courthouse in Bagley, Johnston said, “I’m very relieved that the state of Minnesota acknowledged that we did no damage. I also admit that I am disappointed that we did not get to put on the trial that we hoped for. We very much wanted our jurors to be able to hear from our expert witnesses, that we did this action because the problem of climate change is so urgent that we have to start shutting down tar sands pipelines now.”
Later, in a hall at the VFW that the legal team was using for its prep, James Hansen thought it was important to keep pushing in the courts. His granddaughter, Sophie Kivlehan, is one of the 21 plaintiffs involved in the landmark case Juliana vs. US, suing the federal government for failing to protect them from future climate change. After years of motions, the case is now on hold, as the Trump administration got a last-minute stay from the Ninth Circuit Court of Appeals while it petitions for the case to be dismissed. Hansen is writing a book called Sophie’s Planet. “I think we have to go on the offense. That means we have to put the government on trial,” Hansen says. “We shouldn’t have these elderly ladies on trial for turning off a pipeline; we should have the real criminals on trial. And that’s the government for failing to do its job.”
As the CTO of a tech company, Joldersma believes that his industry could wield significant power as a lobbying force. “What we need is what the hacking world calls ‘social engineering,’” he says. In other words: influence. “Amazon and Facebook and Microsoft and Google command so much power. These companies, if they decided to lobby Congress and put the same kind of influence on Congress like oil companies do, they could have an enormous impact for good.”
Johnston and Klapstein plan to go right back to direct action. “Nothing has gotten better since we shut down the valves two years ago,” Klapstein says. “The political system has been even further foreclosed. What does that leave ordinary citizens to do? It doesn’t mean stop trying legal means, but it does mean step up and put your body on the line too.”
On the night the trial closed, the Valve Turners and a lot of their supporters attended a talk in nearby Bemidji by James Hansen and tribal attorney Tara Houska of Honor the Earth. As I spoke to Regan, she was approached by an attorney representing three activists who locked themselves to the gate of a Wells Fargo bank branch in Duluth to protest that bank’s financial support of Enbridge. (While Wells Fargo has a financial relationship with Enbridge, the bank says it isn’t funding Enbridge’s pipeline project.) The court-appointed “referee” there—who serves in place of a judge—heard her clients’ arguments for climate necessity on October 19. In another case, in Cortlandt, New York, three activists argued before a judge in late October that climate necessity drove them to blockade the construction of a new Spectra/Enbridge pipeline. Decisions in both cases are a few months off. By then, there will almost certainly be more such cases. The case for necessity is only growing stronger.