Climate change, the “necessity defense” and real economic terrorism

“We are at the point where … staying within polite discourse has no effect. I’ve been doing this for 20 years. I’ve availed myself of every available legal alternative. Nothing has been effective. When you get to that point, what’s left? If you’re, like me, driven to do something, you put your body in the way of the harm. That’s what I did.”

—Ken Ward, facing felony charges in Washington State for turning a safety valve on a pipeline, as quoted in the Seattle Weekly

Multi-state tar sands oil pipeline shut off

On October 11, 2016, climate activists turned off pipelines transporting oil from the Alberta tar sands in four different states. Ken Ward (59) closed a safety valve on the TransMountain pipeline in Skagit County, a pipeline used to transport tar sands oil to Anacortes, Washington refineries. Michael Foster (52) was arrested in North Dakota for shutting down Transcanada’s Keystone 9 pipeline. Leonard Higgins (64) was taken into custody in Montana after shutting the emergency valve on a Spectra Express Pipeline. Emily Johnston (50) and Annette Klapstein (64) were arrested for shutting down two Enbridge pipelines in Minnesota.

Organized through Climate Direct Action, the simultaneous shut-offs stopped a total of five pipelines that typically deliver 15% of the oil consumed in the US on a given day. The actions were well-planned and well-organized, intentionally designed as symbolic acts of civil disobedience. At each site, company officials were notified in advance that action was going to take place. Once the valves had been turned, the valve turners and the small teams accompanying them waited for the police to arrive and were arrested.

The valve turners face steep punishments for their actions. According to the ACLU, Ward is facing a 30-year sentence and a $46,000 fine. (His trial, scheduled to begin January 9, has now been postponed until January 30, 2017, in Mt. Vernon). In North Dakota, Foster faces up to 81 years and $94,500 in fines.  Johnston and Klapstein are each facing up to 21 years and a $41,000 fine in Minnesota. Higgins faces up to ten years and a $50,000 fine in Montana. In addition, journalist Steve Liptay is facing criminal charges in Minnesota for “trespass on critical public service facility” and aiding and abetting. Reed Ingalls, who was on site to provide support in Montana, faces charges as an accomplice to Higgins’ felony malicious mischief charge. Sam Jessup, who was on site to provide support to Michael Foster in North Dakota, faces felony charges as well.

Civil disobedience as a climate strategy

In a letter to President Obama explaining their rationale, Ward, Foster, Higgins, Johnston and Klapstein wrote that civil disobedience is the only strategy left to them as people who, like others around the world, are calling for “climate sanity” and opposing the current course of (in)action just because change will be costly. Amplifying the “climate math” that Bill McKibben popularized in his 2012 Rolling Stone article, the valve turners argued that in order to avert further destruction, we have to stop coal and tar sands oil use immediately:

“We have tried every avenue by which engaged citizens might advance such concerns—in this case, ecological—in public policy, and nothing has worked. There is no plausible means or mechanism by which the extraction and burning of coal and tar sands oil from existing mines and fields can be halted on the timeline now required by any ordinary, legal means. The only option available to us is to engage in climate direct action, which is why we are acting today to shut down the five pipelines used to tran sport tar sands oil from Alberta, Canada into the US. We stand together with indigenous peoples and Canadians who oppose tar sands exploitation there.”

Knowing full well the personal consequences of their actions, the valve turners explained their rationale for acting anyway: “It is not that we lack the traditions and values from which a practical and moral course of action might spring. We need only to act with thought for generations to come, respect the earth which nourishes us, cherish wild things and wild places, and value people over things, happiness over wealth, and other people over one’s self.”

The Climate Disobedience Center, one organization that is helping to support the valve turners after the action, makes a related argument for civil disobedience as a means to move from what they characterize as a linear change model to an exponential change one: “civil disobedience is the single most effective tool for cracking the consensual climate hallucination, in the same way that the lunch counter sit-ins of the early 60’s helped shatter the illusion of incremental racial progress of the post-WWII years” .

Acts of civil disobedience alone don’t change policy or practice; done strategically, as this was, they help build and catalyze a movement. That part, the need for others to support the activists’ actions, was the focus of a lecture by Bill McKibben, reprinted in the December 2016 Nation magazine. In that lecture, McKibben builds his argument around a passage from Jonathan Schell’s book, The Unconquerable World: “violence is the method by which the ruthless few can subdue the passive many. Nonviolence is a means by which the active many can overcome the ruthless few.”  McKibben develops Schell’s idea, arguing that the tactics of nonviolent direct action “are useful to the degree that they attract large numbers of people to the fight. Those large numbers don’t need to engage in civil disobedience; they just need to engage in the broader battle. If you think about it, numbers are the currency of movements, just as actual cash is the currency of the status quo—at least until such time as the status quo needs to employ the currency of violence. The point of civil disobedience is rarely that it stops some evil by itself; instead, it attracts enough people and hence attention to reach the public at large.”

McKibben’s argument implicates all of us who are concerned about climate change—while a handful of people are willing to face felony charges, prison sentences, and stiff fines, their actions alone can’t turn the tide. More people need to engage in civil disobedience; many more people need to support those actions in all the ways they can.

Repressing activism

Climate activists aren’t the only ones focused on civil disobedience. The same interests behind the massive economic inequality in the US are aiming to curb climate activists. In Washington State, Senator Doug Ericksen from Ferndale has proposed a bill that would make protests a class C felony if they become acts of “economic terrorism.” As reported by KIRO news, Erickson’s Preventing Economic Terrorism Act “criminalizes illegal protests aimed at causing economic damage and targets the unlawful disruption of transportation and commerce.” Senator Ericksen, whose record includes receiving more money from fossil fuel industries than any other politician in Washington State, has oil refineries in his district and wants to go after people who try to block oil trains. Speaking to KIRO news Ericksen said, “This really comes from movements in Washington State and throughout the country (that) harm a person’s ability to make a living.”

Writing in response to Ericksen’s proposal, Sara Bernard argued in the Seattle Weekly on December 14 that “leveraging such stiff penalties at the outset is likely intended to intimidate a climate movement that, in the Pacific Northwest, anyway, has no intention of scaling back.” Emily Johnston, one of the Minnesota valve turners, objects to the bill not only because it represses civil liberties, but also minimizes acts of terrorism. As she put it, “the term ‘economic terrorism’ equates people who’ve lost their lives to horrific violence with companies that don’t make profits for hours or a day. I think that’s obscene, frankly.”

Climate activism is growing, including in our region. Nearly 600 people have been arrested at Standing Rock since  August 2016. Twelve “Olympia Stand” anti-fracking activists were arrested in November; 52 people were arrested in May for blocking the tracks near oil refineries in Anacortes, Washington. Nonetheless, given that Ericksen served as deputy director for Trump’s campaign in Washington State, it’s reasonable to assume that fossil fuel advocates will continue to seek ways to repress climate activists.

The real face of economic terrorism and the “necessity defense”

In truth, the economic interests of fossil fuel companies and their supporters represent the actual threat to everyone’s existence. The term “economic terrorist” aptly applies to the 1 percent who benefit from our current economic arrangements, backed by government policy and preference. Emmanuel Saez is an economist at UC Berkeley, a frequent collaborator with economist Thomas Piketty. In 2014, Saez gave a lecture at the University of Chicago on income and wealth inequality in the US. According to Saez, from 1993-2012, average real family incomes in the US grew by 17.9 percent, but 68 percent of that growth accrued to the top 1 percent while only 32 percent of that growth accrued to the bottom 99 percent of US families. During the most recent period of “recovery” — 2009 to 2012 — average real family incomes in the US grew by 6 percent, but 95 percent of that growth accrued to the top 1 percent while only 2 percent of that growth accrued to the bottom 99 percent of US families. Clearly, current economic arrangements, supported by state and federal policies threaten 99 percent of us. Sanctioning climate change through lack of coordination actions a part of those arrangements.

The valve turners want to make an alternative argument, shifting the focus of “economic terrorism” to the actual issues at stake. They intend to present a “necessity defense” — arguing that their actions, aimed at preventing the burning of oil, are necessary to protect us. Activists arrested last year for blocking oil trains in Seattle attempted to use the same necessity defense. While Snohomish County Judge Anthony Howard wouldn’t allow the jury to consider it, he did agree that the harm averted by the actions of the “Delta 5” (Michael LaPointe, Patrick Mazza, Jackie Minchew, Elizabeth Spoerri, and Abigail Brockway) was greater than the harm caused by their civil disobedience.

The stakes in these cases couldn’t be higher. We have to reduce the amount of fossil fuel we consume, and the message couldn’t be clearer that at the federal level, no action will be taken. Instead, we are likely to see increasing numbers of new bills like the one proposed by Senator Ericksen. The determination of the valve turners and their support teams to act in spite of the threat of prison sentences and felony convictions requires equal determination on the part of everyone else to say yes, we agree.

Emily Lardner lives in Olympia, where she teaches and writes.