Erik McGregor

For what could be the second time in less than three weeks, a courtroom may again hear climate justice dissidents make one of the most important legal arguments of our time: that the only way to defend themselves and the environment is to break the law.

On January 7, a judge in Washington State allowed a band of climate dissidents — the Delta 5 — to make this argument to defend their blockade of a mile-long oil train at a BNSF Delta train yard in Everett, Washington, in September 2014. Next week, another group of climate dissidents, known as the “Montrose 9,” plan to make the very same argument in a courtroom in Cortlandt, New York.

In the Delta 5 case, Judge Anthony E. Howard, for the first time in a U.S. court, allowed the dissidents’ lawyers to argue their defendants’ actions were justified by “climate necessity,” or the need to defend people’s lives and the planet against the impacts of climate disruption. The district judge allowed the arguments to be made for four days during the trial in January before ultimately instructing the jury to not consider this defense when making its deliberations.

Despite Judge Howard’s last-minute blow to the Delta 5 climate dissidents by barring their climate argument, a U.S. jury still heard the climate necessity defense for the first time, and that jury acquitted the activists on an obstruction charge but convicted them for trespassing. The Delta 5 went into the trial facing potential jail time but walked out of the Snohomish County courtroom with two years probation and $550 in fines per person (one defendant had his fines suspended due to his financial circumstances).

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The case has been widely celebrated by climate dissidents everywhere as a legal breakthrough that may help shift courts’ view of the moral imperative behind direct action tactics deployed in fighting the extreme extraction that fuels climate disruption.

In particular, on the other side of the country, the Montrose 9 are eyeing the case as they ready themselves to head back to court on February 3. Their aim: to explain to a judge why they blockaded the entrance to a construction yard in Cortlandt’s Montrose hamlet on November 9, 2015, to prevent work on a fracked gas pipeline from moving forward.

“In the broader spectrum of things, [our case] definitely … comes together with the Delta 5,” Linda Snider, one of the Montrose 9 defendants, told Truthout, noting that although the Delta 5 faced more serious charges, their cases are parallel. “It’s just that we were only given violations and disorderly conduct, and theirs involved more jail time.”

“In effect, FERC is blocking citizens from having a say in this process. We have no other option but to turn to direct action.”

Snider and eight others pleaded not guilty to charges of disorderly conduct after they were arrested while blocking off Spectra Energy’s work site for the Algonquin gas pipeline. The Houston-based company is behind the larger Algonquin Incremental Market (AIM) Project, which would expand pre-existing pipeline systems in New York, Connecticut, Rhode Island and Massachusetts to transport more fracked gas north from the Marcellus Shale formation in Pennsylvania.

The company plans to run the Algonquin pipeline through the town of Stony Point, under New York’s Hudson River, and into many areas of Cortlandt, including the incorporated village of Buchanan, where many pipeline opponents say it runs too close to the Indian Point nuclear power plant — in one place within 105 feet of the plant’s infrastructure.

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Snider, who organizes with the direct action group Resist AIM, says she became environmentally conscious when she first heard about another Texas-based oil and gas company’s plans to store fracked gas in salt caverns underneath New York’s Seneca Lake and the ongoing grassroots civil disobedience campaign to stop the project.

“I suddenly started to see more of the environmental harm as a major factor in everything, in the whole world,” Snider said. “This just connected to me, and I really wanted to do something.”

But some key differences remain between the Delta 5 case and the Montrose 9 case. For starters, the Montrose 9 are not facing more than 15 days jail time and a $500 fine, and are heading to court on February 3 in a bench trial, not a jury trial. In New York, their climate argument is called a “justification” defense, according to the statute that defines it.

But, just like in the Delta 5 case, the judge will first hear evidence supporting the climate necessity defense before deciding whether to actually consider it. The difference: There will be no jury in this trial, and the judge will make the final decision.

“I’m not sure [the Montrose 9] case sets a precedent, except in the sense that it will wind up being a judge who considers the defense and determines it to be a valid defense,” said the group’s attorney, Marty Stolar. “That is very unusual, and it hasn’t happened very often.”

Stolar says if the courts are shifting, it’s because judges in many states have become more receptive to climate-necessity-based arguments, as they learn more about the impacts of climate disruption, and because attorneys and defendants are becoming more adept at presenting this kind of moral argument.

“We’ve gone all the way up to the White House and to Paris, to say, ‘Yes, we have a real problem here. We recognize that there is a problem with climate change,'” Stolar told Truthout, noting that there has been a larger societal shift toward recognizing the urgency of climate disruption. “That’s a different state of mind than there was five years ago, at least on the part of judges, or at least, I’m hoping, that judges read the newspapers and see what the hell is going on.”

One of the ways Stolar hopes he can advance the climate necessity argument in the Montrose 9 case is by showing that the defendants exhausted all the legal and regulatory avenues to try to stop the Algonquin pipeline before engaging in civil disobedience.

This is a key prong of the legal requirements needed to present the necessity statue. In the Delta 5 case, Judge Howard ruled the activists had not met this requirement, and that was why he barred the jury from considering the defense. The Delta 5 are now appealing the judge’s denial of their defense as well as their conviction on trespassing.

“New York State made the decision to ban fracking, but they’re just ignoring the buildout of gas infrastructure.”

The Montrose 9 have plenty of material to work with when it comes to demonstrating they have exhausted other avenues to preventing the pipeline’s expansion. The defendants have been fighting the Algonquin pipeline for years through a variety of legal, regulatory and legislative pathways, working primarily to get the Federal Energy Regulatory Commission (FERC) to reconsider the project, which that commission greenlit in March 2015. The Nuclear Regulatory Commission also approved the AIM project, despite the protests of local representatives and residents, and the warnings of scientists, medical professionals and safety experts.

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If the judge allows him, Stolar plans to call a Cortlandt City Council member to the stand to testify about the town council’s resolution against the AIM project. Stolar also plans to have two nuclear scientists discuss the risks of the pipeline’s proximity to the Indian Point nuclear power plant, the FERC’s and the Regulatory Commission’s regulatory shortcomings, and the dangers posed by the amount of radon in fracked gas.

Courtney Williams, vice president of the Safe Energy Rights Group, a nonprofit launched to fight the legal battle against the Algonquin pipeline, says that even after pipeline opponents jumped through all the FERC’s “regulatory hoops,” and the agency still approved the pipeline, a coalition of groups with which the Montrose 9 are affiliated submitted a request for rehearing last April asking the FERC to reconsider its decision to allow the AIM project to move forward.

However, as the FERC’s deadline for a response neared, the agency issued what’s known as a “tolling order” giving itself an indefinite amount of time to consider a rehearing while allowing Spectra Energy to move the AIM project forward. Because the agency had not ruled on the groups’ request at the time the Montrose 9 took action, they argue they had effectively reached a legal dead end in the regulatory process.

After nine months of stalling, the agency issued a ruling Thursday, January 28, officially denying the groups’ request for rehearing on the pipeline. “We couldn’t proceed with any other legal steps until FERC ruled on the rehearing, and so they held off and gave Spectra a nine-month head start before we could even consider taking any legal steps,” Williams told Truthout. “But really, [the ruling] wasn’t a surprise because this is how FERC operates, which is that they do not say no to any industry request.” The groups’ lawyers are still reviewing the FERC’s ruling to determine how to proceed legally, Williams added.

“In effect, FERC is blocking citizens from having a say in this process,” she said. “Right now there’s nothing we can do. Our elected officials are refusing to take action, the regulatory structure has been basically putting us in a time-out, … and we have no other option but to turn to direct action.”

Additionally, Williams says Resist AIM organizers have reached out to representatives and regulators at every level of government, including the U.S. Department of Homeland Security and the Environmental Protection Agency. “New York State made the decision to ban fracking, but they’re just ignoring the buildout of gas infrastructure,” she said.

The Montrose 9 and Delta 5 trials are just two of a handful of similar cases tried in the last five years dealing with climate dissidents turning to civil disobedience after concluding that current laws and regulatory frameworks are not protecting them or the environment from the impacts of climate disruption.

Before the Delta 5 case, the only other time a judge has granted defendants a chance to present a climate necessity defense in the United States was in September 2014 in the trial of Ken Ward and Jay O’Hara, who blockaded a coal barge in Massachusetts with a lobster boat. But the pair ended up accepting a plea deal and never went to trial. Until the Delta 5, every other climate dissident besides Ward and O’Hara who tried to make this defense in the United States has been barred from doing so. On a global level, the only time the defense has ever been used successfully was in the United Kingdom in the case of the Kingsnorth 6.

As climate-based civil disobedience activism surges across the nation, the climate necessity defense is bound to see success.

However, this doesn’t mean many other activists haven’t tried to use it. Some notable U.S. cases in which activists sought to use the defense include those of Alec Johnson, a dissident who locked himself to an excavator to halt construction at an easement for the southern leg of the Keystone XL pipeline in Oklahoma, and Tim DeChristopher, who posed as a bidder in a Bureau of Land Management oil and gas lease auction of public land in Utah. The Flood Wall Street 10 also attempted to use the climate necessity defense in court after they refused to disperse from the corner of Broad Street and Wall Street during the Flood Wall Street protest of September 2014.

Judges in most climate necessity cases throw the defense out on grounds that either the defendant did not exhaust all other legal pathways before breaking the law, or that the defendant failed to prove they acted to prevent “imminent” harm. But as climate-based civil disobedience activism surges across the nation, the climate necessity defense is bound to see success at some point, even if the Montrose 9 aren’t allowed to air their argument in open court next week.

“In some ways the necessity defense hits the nail on the head for climate information because it puts the industry on trial, even though the industry is not a party, which is the great irony of these cases,” said Mary Christina Wood, an expert in environmental law and professor at the University of Oregon. “A lot of these prosecutors may dismiss the cases to avoid the necessity defense because it is a powerful microphone for industry’s damage.”

Wood says judges need to set new precedents, interpreting the law with respect to the growing impact of climate change. She explains that while the requirement to prove that a defendant has tried every available legal alternative before taking action may seem reasonable, it’s actually out of step with the reality of climate disruption. Her book, Nature’s Trust: Environmental Law for a Renewed Ecological Age, argues current environmental law isn’t working to protect citizens but in fact favors the very industry the government is supposed to regulate.

“Most environmental laws, I’d say, have turned into permitting processes to simply allow the harms that the statutes were designed to prevent,” Wood told Truthout. “Ultimately if nothing is done to turn things around [the laws] will destroy the planet’s life system.”

Wood called the criteria for exhausting all available legal pathways in the necessity defense overly vague, and said it shouldn’t be used to bar the necessity defense in the context of climate dissidents.

“I think judges really have to grasp the reality of what time frame we’re facing in terms of climate. We are facing mind-blowing tipping points that don’t allow for legal processes to drag on for years and years as they usually do,” she said.

Williams with the Safe Energy Rights Group echoes Wood’s words, emphasizing that climate dissidents who engage in disobedient action shouldn’t be looked at as extremists.

“There’s nothing extreme about the people taking action,” she said. “They’re just people that have been made aware of how things are really working, and once you know, there really isn’t any other way to proceed then direct action.”

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