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With Washington victory, the 'necessity defense' for environmental protesters is gathering steam

By Daniel Fisher | Apr 15, 2019


A Washington appeals court’s decision to overturn the conviction of a man who claims he had no choice but to break into a pipeline facility to save the planet from global warming represents the most important endorsement yet of a legal strategy that once was considered impossible.

A three-judge panel on Washington’s Court of Appeals reversed the burglary conviction of activist Ken Ward, saying the trial judge had violated Ward’s Sixth Amendment rights by refusing to allow him to present a “necessity defense” to the jury. It was the first time a state appellate court has ruled to allow a necessity defense for a climate protest, said Kelsey Skaggs, executive director of the Climate Defense Project. 

Her organization is defending Ward and other “valve-turners” who have temporarily shut down pipelines to protest global warming.

“It’s all about how you conceptualize the harm,” Skaggs said. “The harm this activist was trying to prevent was climate change and how it would impact everyone in this region.”

Most courts, including federal appeals courts, have rejected the necessity defense for protestors because they can’t meet the threshold burden of showing their actions were in reaction to an imminent threat, like breaking into a burning jail to release prisoners. But in his April 8 decision, Judge David S. Mann ruled that Ward “reasonably believed the crimes he committed were necessary to minimize the harms that he perceived.”

Mann departed from what many would consider a conventional understanding of what is a “reasonable” response to an imminent threat. Whether Ward could plausibly claim a brief shutdown of a crude oil pipeline could have any effect on global warming doesn’t matter, the judge wrote. Jurors should be allowed to decide whether the protest itself could have an effect, Mann said.

“Ward’s past successes in effectuating change through civil disobedience in conjunction with the proposed expert witnesses and testimony about Ward’s beliefs were sufficient evidence to persuade a fair minded, rational juror that Ward’s beliefs were reasonable,” the judge wrote. He was joined in his opinion by judges Steven J. Dwyer and Lori Kay Smith.

Judge Mann spent more than 20 years as an environmental lawyer before being named to the bench in 2016 by Washington Gov. Jay Inslee. As a private lawyer, he won a 2011 decision before the U.S. Supreme Court over whether an antinuclear activist could use the Freedom of Information Act to obtain information about munitions stored at a naval base in Washington. 

In that case, Mann represented Glen Milner, a member of Ground Zero Center for Nonviolent Action, formed in 1977 to mount nonviolent resistance against nuclear Trident submarines at Bangor Naval Submarine Base, including attempting to blockade a channel to prevent the arrival of the USS Ohio in 1982. 

Skagit County Prosecutor Richard Weyrich said his office hasn’t decided whether to appeal, which it must do within 30 days. 

“We disagree with the decision, obviously,” he said.

In its brief opposing the necessity defense, Skagit County said there was no need for the appeals court to get to the constitutional question because Ward can’t show he had no reasonable legal alternative to accomplish his goals. Ward said he’d tried to influence legislators but none of his efforts “achieve effective results” and “direct action was necessary.” 

Washington law requires trial judges to make an independent determination about what evidence is relevant to a criminal defense, Skagit County said, and that includes whether Ward’s belief he had no legal alternative to turning valves was reasonable. His crime has “a causal connection to publicity,” the county said, but it lacks any connection to changing the pipeline company’s business practices or preventing any harm. 

Ward could have committed any number of other crimes that didn’t involve cutting locks and potentially endangering public safety to achieve his goals of publicizing the risk of global warming through civil disobedience, prosecutors argued.

Courts have varied in how they treat the necessity defense. The Minnesota Supreme Court last year declined to reverse an appeals court decision that had the effect of allowing a necessity defense, although neither court explicitly endorsed the tactic. A trial judge later acquitted several valve-turners by granting a rare motion to dismiss charges after the state presented its case, saying not enough evidence was presented to convict.  

Valve-turners in Montana and North Dakota weren’t so lucky, being convicted in both states. The North Dakota legislature is now considering a law that would make it a felony to damage or tamper with a “critical infrastructure facility” such natural gas processing plants and oil pipelines. 

Last year, a Boston prosecutor reduced the charges against 13 pipeline protestors who planned to mount a necessity defense, eliminating the possibility of a trial. But West Roxbury Judge Mary Ann Driscoll nevertheless found them not guilty for reason of necessity. 

Skaggs of the Climate Defense Project said defendants pressing a necessity defense will present expert witnesses to testify about the effectiveness of civil disobedience in achieving social change by quantifying how effective similar protests have been, as well as climate scientists on imminence of harm. 

She discounted the possibility protesters will be allowed to get away with breaking any law they want to achieve their goals. Jurors still need to be convinced, she said, although “in the climate change context it’s very stark.”

“The harm is so clearly overwhelming,” she said. What the valve turners did “is exactly what needs to happen to stop global warming.”

If Skagit County appeals, of course, the Washington Supreme Court will have the last word on whether activists like Bill McKibben will be allowed to testify in Ward’s next criminal trial. The central question for the court, should it take this case, is whether a judge can determine if it is reasonable to believe an act of protest that can’t possibly have any effect other than publicity fits the definition of “necessity.” The appeals court decided only a jury can make that call, but most other appellate courts have ruled otherwise. 

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