PORTLAND, Oregon—On April 28, 2019, four retirees and a 20-year-old student were arrested for planting a vegetable garden on the railroad tracks at Zenith Energy, an oil distribution facility.

The activists were charged with criminal trespass, a misdemeanor in this state. On Monday last week, jury selection began in their trial in the Multnomah County Courthouse downtown.

There were spectators. Sometimes so many that the courtroom looked like a sit-in: people cross-legged on the carpet against marble wainscoting, backpacks scattered.

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The defendants did not deny their actions, which they carried out as members of Extinction Rebellion, the direct-action climate resistance movement founded in the U.K. They even took video of themselves troweling on the tracks in garden gloves—video they would later play for the jury.

What drew the crowd of onlookers, though, was not just an interest in activists on trial. The defendants mounted an unusual defense: Their actions were necessary, they argued, because of the dire threat posed by climate change.

Words Defined Differently

It was the first time an American jury had heard a so-called "necessity" defense—what in Oregon is termed a "choice of evils" defense—in a criminal case against climate activists. Under Oregon law, a crime can be committed if it is necessary as an emergency measure to avoid an imminent public or private injury. The gravity of the injury, however, must outweigh the severity of the crime committed to prevent it.

Unique to Oregon is that the state allows the defense in cases involving a public injury, where other states require that there be personal harm involved. Also unique is that prosecutors in Portland did not oppose its use. In other places, it has been battled vigorously. So vigorously, in fact, that one of the Portland defendants, Ken Ward, will be tried a third time in Washington state in May, after two courts disallowed the defense in earlier trials, where he stood accused of shutting down an oil pipeline. An appellate court ruled he should have been allowed to present the necessity defense in the earlier trials.

With as many as 20 similar cases pending nationwide, the activists hoped their case would demonstrate that, faced with the facts of climate science and peers who believed urgent, disruptive action was the only way to inspire a national response to climate change, jurors would find their actions reasonable.

The facts of the crime were not in dispute: the activists were among a group of more than 20 people who disrupted business at Zenith, a company that recently expanded its distribution of tar sands oil from Canada. They were caught planting a vegetable garden and trees on the railroad tracks that bring railcars into its facility.

As the week went on, it became clear that the trial's outcome would hang on the definition of five words: necessary, emergency, avoid, imminent and injury—words that the prosecution and the defense defined differently.

The prosecutor, Leslie Wu, argued that rules were rules, and that the defendants had broken them. The necessity defense, Wu argued, was not applicable to the case, because it was made for more immediately pressing situations. Plus, she noted, there were alternatives to breaking the law, and a garden on a railroad track does nothing to avoid climate change.

"The evidence here doesn't fit," she said. The activists' defense attorneys—there were three—countered that climate change is so urgent that nonviolent resistance is the only solution, and that if a resistance movement grows in the U.S., the planet can avoid a catastrophic climate breakdown.

The first witness to testify was John Oliver, an employee for Zenith, who was asked to recall the events of April 28, 2019, when he was working as a team leader at the company's waterfront facility. A normal day, he told the court, involved unloading rail cars, doing tank-to-tank transfers, loading barges, ships, trucks. But this day was different.

Oliver said he saw a dump truck drop dirt on the tracks. When he approached the truck and the people who had arrived with it, and told them they were trespassing, half of them were already busy planting trees.

"We told them they could be on the sidewalk if they wanted to but they couldn't continue planting," he said.

He went on to describe how the police were called, how some people were politely arrested, how workers had to dig the tracks out later and a BNSF inspector came to examine the rails.

Police officers took the stand and fingered the defendants as the gardeners, recounting how they were arrested. Then the defense called its first witness: an environmental scientist named Deke Gundersen from Pacific University in Forest Grove, Oregon, who described in detail the ecological and human injuries associated with climate change.

The effects of a warming climate, he said, were not just imminent; they were already happening. He explained "hockey stick" graphs of carbon accumulation in the atmosphere. He told the jury what greenhouse gases were. He gave details about adverse impacts to plants, to insects, to the food web, to biodiversity.

He talked about great white swaths of bleached coral, about glacial melt and tipping points.

"It's kind of what we call an existential threat," he said of climate change. Then he explained what it meant for Oregon: Less snowpack, therefore less hydropower, less water for rivers and for fish. Berries would not grow for lack of chill weather, he said. Salmon are already covered in fungus. There would be more wildfires, more acres burned. Sea level rise. Human migration.

The emissions from tar sand oil, he noted, were 21 or 22 percent higher than crude oil emissions, comments accompanied by aerial photographs of pits denuded of trees, filled with water.

'An Existential Threat'

In cases that invoke the necessity defense, prosecutors like Wu are tasked with demonstrating that there are alternatives to criminal acts. That, to use the Portland example, in the moment of the garden-planting there were other, legal options than to trespass.

"This defense was created for cases when a house is on fire," Wu told the Portland jury.

Then she set out to prove that the defendants had not pursued alternatives.

She asked Gundersen, the climate scientist, about planting trees, eating less meat, avoiding plastic and polyester and straws. She asked about supporting renewable energy, like solar, or lobbying the legislature.

Deke Gunderson testifies on the science of climate change and its impact. Credit: Rick Rappaport

Questioned by the defense, Gundersen said that such actions were not enough. But Wu was persistent. As each defendant took the stand and spoke of their terror of climate change, their worry for their children and grandchildren, the futility of past efforts, Wu set out to uncover the options they had missed, probed the places in their activism where there were holes.

Ken Ward testified for two hours about the other approaches he had tried. Over 40 years, he said—50 if you counted the Earth Day rally in 1970– his efforts on behalf of the environment had been expansive. For 25 years, he'd been the executive director of state-level Public Interest Research Group (PIRG)s, and the national federation of PIRGs. He'd been a deputy director of Greenpeace, too.

There were highs, he said: an anti-nuclear plan adopted as party standard by Democrats in 1980, for example. There were lows, too: a Greenpeace board that, when threatened with prosecution by the Clinton administration, canceled an action to disrupt drilling in the Arctic.

"We had to call these campaigners camped in the snow in Alaska and tell them to turn around and go home," he said.

Wu pointed to a photo of the April 28 rally and asked Ward if he had brought the chairs the resisters set up around their garden. If any of them were plastic. If the dump truck they used that day ran on diesel.

"Have you planted trees?" Wu asked him.

"Yes," Ward said.

"Were you capable of planting trees at the time that this was happening?"

"I was planting trees at the time that this was happening."

Similar exchanges took place with the other four defendants.

Jan Zuckerman, a retired educator who for many years taught children at an environmental school, said she led a youth advocacy effort supporting a climate policy for the city of Portland, which ultimately passed a resolution banning the expansion of fossil fuel infrastructure.

Defendant Jan Zuckerman discusses strategy with her attorney Laura Regan. Credit: Rick Rappaport

But city leaders, she said, had no legal recourse to halt the tar sand imports that started increasingly arriving by rail at the Zenith facility. In 2019, Zuckerman said, 9,167 rail cars came to Zenith, more than four times more than the year before. The increase in traffic represented more than 7 million barrels of crude oil.

"That is equal to 700,000 cars driving over one year and one coal fired power plant," she said. "I have a grandbaby who is 6 weeks old and when I hold her, I want to be happy... I often just feel an overwhelming sadness because I'm afraid for her."

Wu asked Zuckerman if the garden she planted on April 28, the one on the Zenith railroad tracks, helped to avoid climate change.

Zuckerman searched for words, then said she didn't understand the question.

To bolster their argument that the actions at Zenith were necessary, the defense called Nicholas Caleb, an attorney and former city official and professor of environmental science, who testified about how impossible climate remedies had become in the U.S. He talked about litigation and policymaking efforts that failed. About the discoordination among the agencies tasked with managing climate change. He also described the money that had been spent by groups and candidates trying to quash any efforts to stem carbon dioxide emissions; money spent in lobbying, in advertising, in disinformation campaigns aimed at convincing the public not to worry.

'Two Plus Two Equals Four'

In their closing statement, the defense attorneys argued that civil disobedience is the only possible path in such circumstances. They pointed to Rosa Parks, to the Boston Tea Party, to the activists who led the Greensboro sit-ins at Woolworth counters in the South. Such acts are not singular, they said. They are meant to inspire other acts, to be part of that 53 percent of nonviolent protests that succeed.

Wu, the prosecutor, said that the house was not on fire, and that the activists had other, less disruptive things they could have done. Their guilt, she said, was clear.

"Two plus two equals four," she told the jury.

Late Wednesday, the judge, Heidi Moawad, instructed the jury and the jurors were sent to deliberate. On Thursday morning, they said they were deadlocked. The judge told them to try again.

But the six-person jury–five men and one woman, a group whose attire included plaid and goatees, Converse All-Stars and colorful socks—was unable to decide whether the actions of the climate activists were justified in the face of the harm that climate change portends.

Reluctantly, the judge declared a mistrial. The District Attorney's office must now decide whether to pursue a new trial or drop the charges.

Other juries across the nation may soon be asked to decide similar cases. Lauren Regan, executive director of the Civil Liberties Defense Center in Eugene, Oregon and an attorney for two of the defendants in the Zenith case said a necessity defense will be heard in other cases involving climate activists in Montana and Washington, and is being considered in as many as 20 others nationwide.

Earlier in the trial, Ward said he was not nervous about the experience. He had done this before, he said, four times in fact. And this jury pool, he added, was unique. All of them thought climate change was real, for example. And only one juror got any information from Fox News, and was sheepish about it. Ward said he expected that elsewhere, about half the jurors would watch Fox, and only half would believe in climate change.

As the first jury in the nation to weigh a necessity defense for climate resistance, the six men and women who deliberated in Portland might have set an example, if not a precedent, for future trials. Maybe they did.

In a tiny room in the back of the courtroom, sitting in upholstered chairs around an oak table, they had the conversation among strangers that the nation has yet to have. Is climate change an emergency? Are the injuries it is likely to inflict so imminent that a garden on a railroad track is a necessity?

In the end, they defaulted, withholding guilt, at least, as the jury foreman later said, for a crime the accused admitted to committing. They now leave these questions to another jury, to the next set of activists, to another hastily planted garden.

Top Photo Courtesey of Jan Zuckerman