Activists employ 'necessity' strategy in pipeline trials 

Ken Ward has no interest in going to jail. This much he made clear in early March in a BuzzFeed News video viewed by nearly a million people on social media. But jail may be what the future holds for Ward and four other activists who simultaneously shut down five oil pipelines in four states on Oct. 11, 2016. As the Indy learned in December from Leonard Higgins, the Oregon man now facing up to 10 years in Deer Lodge for his role in the shutdown, the possibility of incarceration paled in comparison to the prospect of doing nothing in the face of climate change.

"Bottom line: We're facing a far greater threat than prison," Higgins said the day after his Dec. 6 arraignment in Chouteau County.

The months since Higgins, Ward and their cohorts broke into remote pipeline valve stations with bolt cutters have been packed with shifting trial dates, court hearings and, in Ward's case, a hung jury. Higgins is currently scheduled for a pretrial hearing in Fort Benton in May, with a tentative trial date of July 18. According to 350 Montana chair Jeff Smith, whose nonprofit hosted an event with Higgins late last year, Higgins plans to return to Missoula May 13 and 14 for speaking appearances that will double as a pitch for support in his legal battle. He's facing charges of misdemeanor criminal trespass and felony criminal mischief for breaking into a Spectra Express Pipeline station several miles south of Big Sandy and manually closing the shut-off valve.

There's no debating the facts of what Higgins did. All the valve turners' actions were livestreamed on social media, and Higgins has talked openly about the months of planning and preparation that went into the shutdown. Higgins doesn't plan to refute any of this in court. Instead, he plans to enter a so-called necessity defense, arguing that given the responsibility to protect innocent people from the ravages of climate change, he had no choice but to take illegal action.

The strategy is not without precedent. Six Greenpeace activists used it in 2008 after they shut down a coal-fired power plant in Kent, England, by scaling its 200-meter smokestack. All six were cleared by a jury, prompting international news outlets to speculate that the tactic would catch fire in the environmental community. In 2014, Ward and another climate activist employed a necessity defense to fight criminal charges over their use of a lobster boat to block delivery of a 40,000-ton coal shipment to a power station in Somerset, Mass. That case never made it to trial. Bristol County District Attorney Sam Sutter dropped the charges and took the opportunity to proclaim climate change "one of the gravest crises our planet has ever faced."

click to enlarge Law enforcement officers lead Oregon activist Leonard Higgins away from an oil pipeline valve station in central Montana on Oct. 11, 2016. Higgins intends to argue in court that he had no choice but to break the law in order to defend others from climate change. - PHOTO COURTESY LEONARD HIGGINS
  • photo courtesy Leonard Higgins
  • Law enforcement officers lead Oregon activist Leonard Higgins away from an oil pipeline valve station in central Montana on Oct. 11, 2016. Higgins intends to argue in court that he had no choice but to break the law in order to defend others from climate change.

"When activists take these actions, they mean it," says Jay O'Hara, Ward's partner in the coal blockade and a founding member of the nonprofit Civil Disobedience Center, which is now supporting the valve turners with legal and financial assistance. "So how do you say, 'I meant it?' [The necessity defense] is less about publicity and more about embodying the convictions of, 'This is the right thing to do. I'm not going to evade responsibility.'"

The necessity defense hasn't worked for every environmentalist who's tried it. The "Delta Five," a group of activists who attempted to block a crude-oil train near Seattle, took a crack at it last year to no avail, though the judge did praise them for their creative approach to the climate change issue. Ward didn't make it even that far this time around. During his trial in Skagit County, Wash., last month, Judge Michael E. Rickert denied Ward's request to present a necessity defense, citing "tremendous controversy" over whether climate change even exists.

Rickert's denial of the necessity defense wasn't especially surprising, O'Hara says, but his denial of climate science was troubling. The case—which ended with a hung jury—is set to be retried in early May, giving Ward's team time to refine their approach.

Rickert's reception may offer the valve turners and their supporters a glimpse of the challenges their defense may face elsewhere. Skagit County is hardly "the bleeding heart of the Pacific Northwest," O'Hara says, and shares quite a few parallels to Chouteau County, where Higgins will go on trial this summer. And if a Montana judge proves more receptive, O'Hara can't imagine a better place to host a legally charged, fact-based discourse on climate change than a Fort Benton courtroom.

"Montana is as good a place as any to have that conversation," he says, "and this is exactly where these conversations should be happening. It shouldn't be a liberal elitist conversation. It's a conversation we need to have in the heart of America with average, everyday citizens."

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