It's Time to Put Our Bodies on the Line to Build a Widespread Nonviolent Climate Justice Insurgency

As the Trump administration withdraws from the Paris Agreement, environmentalists face a choice: continue the same strategy that got us here, or build a nonviolent climate insurgency to achieve the change we need. This week in a courtroom in Washington state, the experiment to put climate in the hands of responsible citizens continues.

U.S. withdrawal from the Paris accord has laid bare the reality that fossil fuel interests, notwithstanding some executive actions by the Obama administration, govern the policy of this country. Any illusions to the contrary should by now be dispelled.

As climate activist Ken Ward is retried on criminal charges this week for shutting off the emergency valve on a pipeline carrying carbon-intensive tar sands crude oil, he is trying to highlight an alternative path for the climate and environmental movements. Instead of wishing we had some semblance of pro-climate federal policy, we'll heed the message that front-line communities have been giving us for years: it’s time to put our bodies on the line to build a widespread nonviolent climate justice insurgency.

The judge in Ward’s trial has barred him from mounting his real defense: that the climate emergency justified his action. Judges are continuing to deny climate activists the right to argue in court that civil disobedience is justifiable if it’s done to prevent greater harm to the climate.

Ward has been repeatedly denied his request to call climate scientists and other expert witnesses and let the jury hear them testify that without decisive action, a climate catastrophe is imminent. He worked in the climate movement for decades and exhausted all legal avenues to try to cut greenhouse gas emissions, to little avail, and U.S. withdrawal from Paris is the final nail in that coffin. Ward argues that direct, principled citizen climate action is the one remaining effective option, and therefore legally justifiable and “necessary.”

This argument is known as the "necessity defense.” It’s a legitimate legal precedent, but it has been repeatedly disallowed by Judge Michael Rickert of Washington State’s Skagit County Superior Court, where Ward is being tried.

This is Ward's second trial for the same action, and the second time the judge denied permission to mount a necessity defense.  The first trial in January ended in a hung jury, even though the facts of the case are not in dispute. Ward freely admits entering the Trans Mountain pipeline facility on Oct. 11, 2016, cutting locks and chains, and closing the pipeline emergency safety valve. His October 11 action was one of five coordinared simultaneous in four states that succeeded in briefly stopping all tar sands flowing from Canada into the U.S., temporarily disrupting 15 percent of the U.S. daily oil supply. The tar sands soon flowed again, but Reuters said the action “shook the North American energy industry.”  

In his January trial, Ward was also denied a necessity defense, and the jury was kept from hearing expert testimony about climate change. But he took the stand himself and testified about how oil sands harm the climate, getting enough of his point across that one or more jurors refused to convict him. In the second trial this week, he’ll need to do something similar, since he has again been barred from making a necessity defense.

So has Leonard Higgins, Ward’s fellow valve-turner, who shut off an oil sands pipeline in Montana while Ward was doing likewise in Washington state. Higgins is set to stand trial July 18 in Chouteau County, Montana. Other valve-turners in Minnesota and North Dakota are still waiting to find out whether they will be allowed to use the defense.  

These are the first few landmark cases to decide some vital questions: Citizens are increasingly taking climate action. Can they be denied their true defense? Can juries be kept from hearing expert testimony on climate change and being exposed to the argument that the climate emergency warrants citizen action? With the federal government subsidizing and deregulating the fossil fuel industry while the climate burns, abridging the rights, safety, health and future of so many, how long can the courts continue to view non-violent citizen climate action as simply illegal? Do judges and prosecutors have the right to just ignore or deny climate change?

If the charge of “denial” seems overblown, consider this: The first time he denied the necessity defense to Ken Ward, Judge Rickert said, “there’s tremendous controversy over the fact whether [global warming] even exists. And even if people believe that it does or it doesn’t, the extent of what we’re doing to ourselves and our climate and our planet, there’s great controversy over that.” In a motion against reconsidering the necessity defense in Ward’s second trial, the prosecutor argued, “Some would even argue that [climate change] is not a true threat to begin with, as there are clearly different sides to the issue.” So denying the necessity defense to climate activists tracks with climate denial, or at least climate skepticism.

Meanwhile the climate crisis continues to spiral out of control, with recent analysis finding we only have four years of current emissions rates left, after which there is little chance of keeping global temperatures below the Paris agreed-to goal of 1.5°C of warming. Powerful local resistance to fossil fuel expansion led by frontline communities continues to grow, but not fast enough head off the trajectory we’re on.

But Ward's trial and other pending trials raising the legal issue of a climate necessity defense could help speed things up. If a jury votes to acquit Ward or others after weighing expert testimony on the severity and urgency of the climate crisis, that would send a strong message. It could help clear the way for more citizen climate action, which may be powerful enough to change our trajectory. After all, in just a few hours, five activists and four helpers succeeded in shutting down the flow of oil sands into the U.S.—something that decades of well intentioned for NGOs and government agencies was never able to accomplish.

The docket of trials of citizen climate activists nationwide is growing. It should only be a matter of time before a judge allows a defendant to make his or her true defense and allows a jury to hear evidence about the climate crisis as legitimate context. That would create a new precedent that could help spark a broad, effective movement for climate action, one with the power to transform the political landscape so that even the Trumps of the world become eager to "evolve." The question is, will it happen in time?