When two environmental protestors took bolt cutters to a fence and broke onto oil giant Enbridge’s property, they shut down two pipelines near Leonard, Minnesota, which carry millions of gallons of crude oil into the U.S. from Canada daily.
The duo, part of a small group of five climate protesters known as the “valve turners,” accomplished their goal of shutting the pipeline down, if only for a few hours. But prosecutors also slapped them with felony charges, which they tried to fight with a novel legal strategy: the “necessity defense.” The argument goes that, yes, the protestors committed crimes, but the seriousness of the threat posed by the pipelines left them no choice.
The case could have made the valve turners the first environmental protesters to successfully use the necessity defense in a criminal trial — until a judge acquitted them of all charges Tuesday. Had the trial moved forward, its outcome could have opened the door for other protesters to use the same defense in the future.
“While I'm very glad that the court acknowledged that we did not damage the pipelines, I'm heartbroken that the jury didn't get to hear our expert witnesses and their profoundly important warnings about the climate crisis,” one of the protestors, Emily Johnston, 52, said in a statement to VICE News.
As part of a coordinated effort, the valve turners briefly shut down four pipelines in four states that, altogether, carry 70 percent of the crude oil that crosses the U.S. border from Canada. But only Johnston and another woman, Annette Klapstein, shut down the two Enbridge pipelines. During the eight hours those valves were closed, about half a million gallons of oil were prevented from travelling from Canada to Wisconsin.
The pipelines carry a particularly dirty fossil fuel: tar sands oil which emits up to 15 percent more carbon dioxide than other types of oil, in enormous quantities. Enbridge’s line 67, just one of the two pipelines the protesters closed off, transports around 890,000 barrels of tar sands oil every day.
"I'm heartbroken that the jury didn't get to hear our expert witnesses and their profoundly important warnings about the climate crisis."
Had the trial moved forward as planned, the necessity defense would have created a public setting for Johnston and Klapstein to articulate the urgency of addressing climate change. The only shot they had at protecting themselves — and the world — was to break into oil company property and physically shut the pipelines down, they would have argued.
The defense has rarely been allowed in cases involving protesters — let alone worked. But Klapstein and Johnston fought hard for their case to be tried that way. None of the other valve turners were allowed to use the necessity defense, and the prosecution in Johnston and Klapstein’s case also attempted to keep them from presenting the argument. But the two women won the right on appeal.
Both journalist and activist Bill McKibben and James Hansen — the former director of the Goddard Institute for Space Studies at NASA who famously sounded the alarm on climate change in Congressional testimony back in 1988 — were set to testify for the defense.
Before they had a chance, however, Klapstein and Johnston were acquitted. On the second day of the trial, the judge granted the defense’s motion for acquittal, ruling that the two protesters hadn’t damaged the pipeline.
“The judge found what I was about to tell the jury: that these defendants caused no damage to the two pipelines they closed. Indeed, they acted out of concern for communities that are harmed by fossil fuel pipelines, and the climate emergency,” pipeline safety expert Anthony Ingraffea told VICE News in a statement. He’s one of the witnesses that would’ve have been called to the stand.
The acquittal shocked the courtroom.
“This is the first time in 20 years that I’ve had a court grant a motion for acquittal like this,” said Lauren Regan, Executive Director of the Eugene Oregon-based Civil Liberties Defense Center and attorney for the Valve Turners. “I looked at my clients and I just mouthed, ‘Oh shit.’”
“They really wanted to tell this local community that they were safe, that this was not a flippant action,” she added. “The local people thought these Seattle eco-terrorists were showing up to blow up their homes and their husbands who were working on the pipeline. They didn’t even get that.”
But the case may not have played out as the defense hoped anyway. The judge barred some of the key tenets of the necessity defense. The protesters’ lawyers and witnesses, for example, couldn’t have argued about either global warming or the efficacy of civil disobedience to effect change.
Even with the protesters’ acquittal, ramifications of the case will echo through the climate protest movement. The courts ruled that Klapstein and Johnston had the right to present the climate necessity defense before a jury — an unprecedented victory for climate activists engaging in this kind of direct action protest.
“We did this two years ago, and things have only got massively worse since then,” Klapstein said on the courthouse steps, minutes after her acquittal, according to the Grand Forks Herald. “Would I rule out civil disobedience again? Absolutely not.”
Cover image: Pipeline to carry crude oil is shown Friday, June 29, 2018 at the Superior terminal of Enbridge Energy in Superior, Wis. (AP Photo/Jim Mone)