Focus switches to climate activist pastor allowed to present 'necessity defense'

By John Breslin | Oct 15, 2018


BAGLEY, Minn. (Legal Newsline) - After the dramatic dismissal of charges against climate activists who had planned to argue "necessity defense" before a jury, the focus is now likely to turn to the northwest and the trial of an elderly pastor accused of blocking a coal train.

Prosecutors in Spokane County, Wash., have appealed a trial court decision to allow George Taylor, a 78-year-old former Presbyterian minister, to present the defense, which contends that a person cannot be found criminally liable for an offense if it is proved a greater harm is prevented.

Taylor was among a group of protesters, including members of the Raging Grannies activist group, that blocked a Burlington Northern Santa Fe freight train carrying coal in Spokane in September 2016. He is charged with criminal trespass and blocking a train. The others took plea deals.

Climate activists charged with offenses in various parts of the country have attempted to introduce the defense, including in the latest case to come to court, in Clearwater County in Minnesota.

The trial of three activists from the Seattle-area, charged with shutting down pipelines by turning on the emergency shut-off valves, began on Oct. 8, then dramatically ended the following day. 

Annette Klapstein and Emily Johnston in October 2016 broke into private property and attempted to shut down the Enbridge Energy pipelines situated around 200 miles northwest of Minneapolis. A third defendant, Ben Joldersma, called in a warning to the energy company,

On the same day, other Climate Direct Action activists attempted to shut down five Canadian tar sands crude pipelines, leading to the arrest of another eight people in North Dakota, Montana and Washington state.

This was part of a coordinated and deliberate campaign to shift the climate change debate into the court room and before a jury. The ability to present a necessity defense allowed them to introduce expert testimony of the effects of man-made activities on the climate.

But, in Minnesota on Tuesday, Clearwater County District Judge Robert Tiffany dismissed the charges, ruling that prosecutors failed to prove that damage was caused by the actions. The defense had not begun presenting its case.

“I’m very relieved the state of Minnesota acknowledged that we did no damage and intended to do no damage,” Johnston said following the dismissal of the charges.

But she added, "I also admit that I am disappointed that we did not get to put on the trial we had hoped for."

Alberta-based Enbridge temporarily shut down the two pipelines as a precaution before any damage occurred.

In a statement issued following the collapse of the case, the company described the protest as “reckless and dangerous”.

"The individuals involved in these activities claimed to be protecting the environment, but they did the opposite and put the environment and the safety of people at risk – including themselves, first responders and neighboring communities and landowners,” the company said.

Historically, the defense has been interpreted very narrowly and the bar high. The defense could be used, for example, by an inmate attempted to escape when a prison is on fire.

A defendant must reasonably believe that an actual threat exists, that the action will prevent a greater harm, that it must be imminent, that there was no other legal alternative, and that it was no less harmful way to avoid the threatened danger.

In Washington, courts in recent years denied climate activists the chance to air the defense. In only two cases related to civil disobedience, both dating to the 1980s and relating to protests against apartheid in South Africa, has it been allowed argued in court in the state.

But in her ruling in favor of Taylor, Judge Debra Hayes, of the Spokane County District Court, stated that there are numerous examples from across the country where protesters have been allowed to present the defense.

She ruled that Taylor “believed that his actions were necessary to avoid or minimize the immediate harms of global change to the Earth," and that he "presented evidence that the harm sought to be avoided was greater than the harm he and other protesters created"

"He did not bring about the harm he sought to prevent; and he believed he had exhausted all legal alternatives and that no other reasonable alternative existed," Hayes ruled.

Spokane County Prosecuting Attorney’s Office has appealed, according to court documents. The trial was due to take place in April but proceedings are halted as the appeal proceeds.

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