By MARK HAND
A month before the 2016 election, anti-pipeline activists staged an unprecedented coordinated action to shut down the flow of oil from Canada to the United States. On October 11, 2016, activists in North Dakota, Washington, Montana and Minnesota turned the manual safety valves on four pipelines, temporarily halting the flow of nearly 70 percent of the crude oil imported to the United States from Canada. They came to be known as the “valve turners.” What followed was a lengthy legal battle that ended with some of the activists in jail. But on Tuesday, three valve turners who broke into an oil pipeline facility in Minnesota on that day in 2016 were acquitted.
After the prosecution had made its case against the two activists, Clearwater County, Minnesota District Judge Robert Tiffany surprised the court by abruptly ruling that prosecutors had failed to meet their burden of proof that the activists had damaged a tar sands pipeline when they trespassed on private property to shut down two Enbridge Energy oil pipelines in 2016 by turning the wheels at an above-ground valve site.
Tiffany dismissed all charges against the defendants. Johnston and Klapstein were facing up to 10 years on felony counts related to the incident, and Benjamin Joldersma, part of their support team, faced misdemeanor charges for assisting them.
The case, however, was also seen as a significant test of a new type of climate defense strategy. Ahead of the case, the judge accepted that the climate necessity defense could be used by the activists in their case. As part of this, the judge agreed to let expert witnesses corroborate the defendants’ testimony that their actions were justified by the need to avert imminent climate catastrophe.
The Minnesota case, the last of the valve turner cases, was the only one of the four cases where defendants convinced the judge the “climate necessity defense” argument carries enough weight to be used in court. The other defendants in Washington, Montana, and North Dakota lost their cases and faced short sentences, community service mandates, and deferred imprisonment.
As it turned out, though, the Minnesota judge acquitted the defendants before they could argue that their actions were necessary due to climate change.
And only days before the trial was scheduled to begin, Judge Tiffany did an about-face from his earlier decision to grant them the necessity defense. He barred testimony from defense experts who would testify about the barriers to effective political action for addressing climate change and the effectiveness of civil disobedience, similar to the valve-turning action, into historical context.
“It was shocking and our supporters in the courtroom were ecstatic because we’re definitely not going to jail. And we were happy,” Klapstein said Wednesday in an interview with ThinkProgress. “But at the same time, we were indeed disappointed not to be able to present this to the jury. We were hoping to educate the jury and the classroom of greater public opinion on the dire issues of climate change.”
It remains unclear why the judge, at the last minute, decided not to allow the use of the climate necessity defense.
As climate action remains stalled at the federal level, climate activists are increasingly turning to protest and civil disobedience to disrupt fossil fuel infrastructure projects around the country. With those acts of civil disobedience on the rise and the risk of arrest increasing with stricter laws being proposed, more defendants are turning to the climate necessity defense.
Two years ago, Johnston and Klapstein participated in the action on the U.S.-Canada border as part of a coordinated action by a group of Climate Direct Action activists to shut down five Canadian tar sands crude pipelines in Minnesota, North Dakota, Montana, and Washington state. A total of 11 activists were charged in the four states; seven of them went to trial.
In each case of civil disobedience, after calling the pipeline companies to give warning, the activists turned the emergency shut-off valve wheels in a coordinated attempt to stop the flow of tar sands oil.
When the Minnesota court ruled in October 2017 that the valve-turners could present a necessity defense, Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University, described it as “extremely unusual.”
The state of Minnesota appealed that decision, arguing that allowing defendants to present evidence about climate change would have a “critical impact” on the case and severely undermine the prosecution’s odds at achieving a conviction. The Minnesota Supreme Court disagreed, ruling in July that the defendants could mount a necessity defense.
Johnston and Klapstein admitted they turned the emergency shut-off valves on two pipelines owned by Enbridge Energy pipelines on October 11, 2016, near Leonard, Minnesota, about 210 miles north-west of Minneapolis. The two were charged with felonies.
The climate activists disrupted the flow of millions of barrels of crude from Canada to the United States in a rare, coordinated action that targeted several key pipelines simultaneously. The coordinated protest in four states stunned the environmental community and the energy industry for its boldness.
The activists had studied for months how to conduct the shutdowns safely. “We are acting in response to this catastrophe we are facing,” Afrin Sopariwala, a spokesperson for the group, said at the time of the coordinated shutdown, referring to global warming.
#ValveTurners bolt-cutters returned outside of Clearwater County as all charges dropped at the #climate necessity defense #ClimateTrial in MN. pic.twitter.com/3J5YJSPwLx
— Climate DirectAction (@ClimateDA) October 9, 2018
Of the seven valve turner activists who went to trial, Johnston and Klapstein were the only ones who were acquitted of the felony charges. Each of the defendants in the other cases are appealing their guilty verdicts.
“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,” Johnston said Tuesday in a statement.
Regardless, Lauren Regan, executive director of the Eugene Oregon-based Civil Liberties Defense Center, believes the case sets a strong precedent. Regan represented both Johnston and Klapstein.
“First, the climate necessity defense was upheld by the highest court in the state, which affirmed that these climate activists had the right to assert the climate necessity defense to a jury,” Regan, said Tuesday in a statement. “Further, the defendants were acquitted of felony criminal damage to critical energy infrastructure and pipelines.”
Klapstein also added in her statement that, “I want to acknowledge that we were treated more gently by the court than any people of color ever are and we know that is in part because of our white privilege.”
“We see this in the trials of the indigenous people who were arrested at Standing Rock many of them have been charged with felonies for doing much less than the Valve Turners did,” Klapstein continued, “and most of them are being convicted and given harsh sentences, such as a several years.”
In February, Michael Foster, another valve turner who targeted an oil pipeline in North Dakota, was sentenced to three years in prison, with two years deferred. In August, Foster was released from prison after serving six months and will remain under supervised probation for two years.
The climate activists understood that whoever turned the valve on the pipeline in North Dakota would likely face the most skeptical jury of the four states. Foster stepped up and agreed to be the one who faced the charges in the the state.
“We knew going in that North Dakota would be the worst. And Michael Foster very generously agreed to be the person to go there knowing that,” Klapstein told ThinkProgress.
During the jury selection in Foster’s trial in October 2017, Klapstein said that 20 out of 50 people in the jury pool were excused for cause because they stated that they could not give the presumption of innocence to the defendant because they believed if someone is arrested by the police, they must have done something wrong.
This article originally appeared on: ThinkProgress