

Image of Ken Ward in 2016 Valve-Turners action, from the film The Reluctant Radical.

Last week, Donald Zepeda was found guilty by a jury in Washington State for his actions to disrupt the flow of Alberta tar sands bitumen sludge to the US by turning off a pipeline valve. He was allowed, thanks to some encouraging earlier cases involving the valve-turners, to use the “defence* of necessity” .

Sadly, the defence failed, and Donald explained why he thought it did. This week he was sentenced to 60 days in jail on three counts, but other than 5 days’ time already served, the remaining sentence can be served as community service. All sides considered the sentence “lenient”, though the judge suggested that any repeat offences will not be treated as lightly (it was Donald’s first conviction).

Even before the verdict was rendered, Washington State prosecutors had already decided to recharge Ken Ward for a third time for the original “valve-turners” action, which they can do — if they allow the defence of necessity, since the state supreme court refused to review the ruling throwing out (but not overturning) the verdict in the second trial because introducing this defence had been refused. The third trial is now scheduled to begin on Feb. 10, 2020.

Ken welcomes the opportunity to use the defence, even though he may be opening himself up to a longer prison sentence if he loses (he got ‘time served’, for a single charge of burglary, in the second trial). Ken is not optimistic that the defence will be successful, and he is prepared to go to jail. (If you want to support him and other valve-turners with their legal costs, here’s where to donate.)

Reading more about the guilty verdict against Donald, and Donald’s post-mortem on the trial, it seems to me that the fix is in: The defence failed because the jury didn’t think they met the 4th clause of the defence, “that no reasonable legal alternative existed”. The wording of the defence provision (as it applies in the US anyway) says the onus is on the defence to “prove” all 4 clauses are met “on the preponderance of evidence”. But especially in our byzantine legal system, how do you prove “no reasonable legal alternative exists”? How do you prove something doesn’t exist? I’m no lawyer, but it seems to me that this defence is so onerous that it is almost no defence at all.

My guess is that the prosecutors in both the Washington State cases are being encouraged and provided with free legal advice by legions of other closely-watching prosecutors all over the world, who want to make the point that this defence is basically useless, so that it will not be used again in climate actions.

The necessity defence has a long history, and the precedents lean heavily towards discouraging its use; they say its use must be “strictly controlled and scrupulously limited” lest it lead to, as an early British precedent put it, “anarchy and disorder”.

In countries where it is has been used, all seem to have a “no reasonable alternative” requirement, which has been taken to mean no alternative from the perspective of an “objective reasonable person” rather than the more liberal “no alternative that the defendant could reasonably foresee in the circumstances”.

So, firefighters are allowed to speed to get to a fire, and to destroy a house to prevent the fire from spreading to other homes, but the defence could not be used if someone speeding to hospital with a woman about to give birth caused an accident in the process (or probably even to beat the speeding ticket).

The other three criteria needed to prove necessity (i. defendant didn’t cause the harm they were trying to prevent; ii. defendant genuinely believed they were preventing a harm; and iii. defendant’s harm was less than the harm they were trying to prevent) are not that difficult to prove, but the fourth criterion is a hugely challenging one, and precedents suggests it’s deliberately there to make this defence almost impossible to prove. It has been successfully used in climate action in the US just once, and that was a judge’s decision, not a jury’s.

Canadian law apparently attaches the words “urgent” and “immediate” before the word “harm”, and applies a standard of “imminent peril” to the situations where it can be applied, making it even harder to use. It continues to work its way through the courts (lower courts refused to allow its use) as a defence in the Burnaby Mountain case (blockade of the Trans Mountain pipeline construction by several groups that included two members of Parliament; the MPs plea bargained and paid fines to avoid jail time). The use of the defence of necessity in the Burnaby case would be based on Ken’s precedent-setting success, but IMO it’s even less likely to succeed because of those additional words. I hope I’m wrong.

However, since Canada’s Parliament did approve a motion declaring a “Climate Emergency” in Canada, this should make for an interesting case — does a nationally declared “emergency” make actions to deal with it automatically “urgent” and “immediate”?

I think, sadly, this defence will ultimately fail on the same grounds (the 4th, “no reasonable [legal] alternative” criterion) that the defence in Donald’s case failed on, and I fear that Ken’s next trial defence might fail on the same grounds, depending, of course, on the sensitivities of the jury and the instructions of the judge.

The necessity defence also has a dark side, that climate activists would be wise to keep in mind when using it: It has been used (thankfully unsuccessfully) by right-wing anti-abortion groups to justify the blockage of access to medical facilities offering (constitutionally-defended) abortions, and even to justify the murder of abortion providers. And it has been considered for use to justify torture of alleged terrorists.

If use of the defence continues to fail, then this will likely put a damper on what XR can and will do, and it will likely embolden enforcement authorities to arrest XR participants in future actions with the knowledge this defence is unlikely to work.

Of course, it is possible that, as climate collapse deepens, juries may actually start to conclude that there is no longer a “reasonable alternative” to direct action. It would appear that this is still a way off, however.

So why is Ken so equanimous in facing a third trial when it seems quite likely the necessity defence will fail again, and the sentence may be considerably less lenient? Ken is committed to the end to what he is doing, and not afraid of serving time in jail. His presence in a jail cell, while the Tar Sands perpetrators of the atrocities he’s fighting on our behalves just go on destroying our planet, will hopefully be sufficiently galling and outrageous that it will drive more citizens to join the fight — in government, in the courts, in the streets, and ultimately, almost assuredly, in front of the bulldozers and in the jails.

At the same time, Ken must be aware of the potential dampening effect the failure of the necessity defence on the numbers of XR and other direct climate activists willing to pursue direct action, and on the courage these activists will have in the face of the threat of jail time. But Ken knows that as the situation we face, if we fail to take drastic action to reduce our environmental destruction, becomes more obviously and unavoidably horrific, the number of people with the courage to take direct action to stop mega-polluting activities will eventually surge, and eventually those numbers will reach the level at which arresting and incarcerating everyone becomes impractical and unarguably ineffective, and the level at which these destructive activities become uneconomic, reputationally ruinous, and ultimately illegal.

Ken and other climate activists are determined to drag not only the worst perpetrators of climate crimes, but the large majority of acquiescent and wilfully ignorant citizens, to the point they realize the urgency, vital importance, and massive degree of coordinated change needed (most notably to our economy and our lifestyles) to prevent runaway climate change, the rendering of much of our planet uninhabitable and much of the rest horrifically impoverished and desolated, and unimaginable suffering in the face of the resultant ecological, economic and civilizational collapse.

So what then?

Revolutionaries (and XR is in every sense revolutionary) have long acknowledged that challenging laws can lead to incarceration or worse before public opinion shifts and insists on changes to those laws and political action to stop the catastrophic destruction of our environment. Opinion polls suggest that waiting for public opinion to shift isn’t an option — even the majority of those agreeing there’s a climate crisis are opposed to spending any taxpayer money to deal with it, let alone the draconian changes to laws and lifestyles needed to achieve XR’s demands (and to prevent catastrophic climate collapse).

And I think hoping the legal system will be in any way an ally in our fight is absurdly idealistic. The legal system exists to protect the status quo that is destroying our world.

And direct action (break it, block it, take it) generally makes most people anxious, not inspired. But increasingly disruptive direct action is going to be needed, IMO, to jump-start the utterly inadequate pace of current climate actions.

So we have a broken economic system, a broken legal system, and a broken political system — and a largely ignorant and complacent citizenry all too willing to believe the media propaganda that denies, grotesquely understates, misrepresents and makes excuses for the accelerating climate catastrophe.

Hard road ahead, I think.

Thank you, Ken, the Valve Turners, Donald, Greta, XR, and all those climate activists putting it on the line at such great risk and against such powerful opposition. We’re cheering for you. And struggling with the decision on when to join you.

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(*Americans are free to substitute an “s” for the “c” in “defence”; I’m Canadian and the defence was originally a British precedent.)