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And then this happened…

The necessity defense wins one

In the December 2017 issue of Works in Progress we reported on the trial of people involved in a four-state action to shut off a pipeline carrying oil from Canada. A key motive for the actions was to put the fossil fuel industry on trial by using the necessity defense: actions taken to stop the flow of oil were necessary in order to prevent a harm larger than the harm caused by the act itself.

An important aim behind the valve turning strategy was to bring the necessity defense into courtrooms, arguing that climate-based civil disobedience is necessary as a lesser evil compared to the harm being done by producing and burning fossil fuels.

In that trial in South Dakota, Judge Laurie Fontaine ruled that defendants Michael Foster and Sam Jessup could not use the necessity defense; such testimony “could confuse or mislead the jury into believing the legitimate concerns regarding climate change are an excuse or defense to the crimes charged.” That was exactly the case the valve-turners had hoped to bring before the jurors.

Now valve turners will get their chance. On April 8, 2019, the Washington Court of Appeals Division One reversed a decision made in the State of Washington v. Kenneth Ward. Ward was one of the people arrested in the four-state action for turning the valves on Kinder-Morgan pipelines transporting oil from Canadian tar sands into the US.

The Washington court found that “Because the harms that Ward asserted he was trying to alleviate were more than just climate change, generally, but also included both the specific dangers of Canadian tar sands oil and the impacts of sea level rise on Washington, Ward’s actions were not intended to be merely symbolic in nature. As such, the evidence he planned to introduce was not solely aimed at inducing jury nullification and the trial court erred in preventing Ward from introducing evidence in support of his necessity defense.”

As the Court of Appeals explained in their ruling:

“Washington recognizes a common law necessity defense. The defense may be raised when a defendant demonstrates that they reasonably believed the commission of the crime was necessary to avoid or minimize a harm, the harm sought to be avoided was greater than the harm resulting from a violation of the law, the threatened harm was not brought about by the defendant, and no reasonable legal alternative existed.

“Based on the specific harms that Ward asserted he was trying to avoid, his actions were not merely symbolic. The protesters’ intent was to physically stop the flow of Canadian tar sands oil into the United States. It was a direct way of preventing a uniquely potent contributor to climate change from entering the United States.

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