News
BY STEPHYN QUIRKE
S T A F F W R IT E R
n Jan. 15, Snohomish County Judge Anthony E.
Howard handed down sentences to five people who
say our political system is rigged to destroy the planet
The trial was the latest in a series of protests against
the increasing volumes of fossil fuels traveling through
the Pacific Northwest, bound for Asian markets, despite
the considerable damage to regional eco-systems
already resulting from climate change, including ocean
acidification, loss of snowpack in the Cascades, rising
stream temperatures and summer deadzones along the
coast.
In September of 2014, Abby Brockway, Patrick
Mazza, Jackie Minchew, Mike LaPointe, and Liz Spoerri
locked themselves to a 20-foot tripod at the BNSF
railroad’s Delta yard in downtown Seattle. Dubbed the
Delta 5, their protest was designed to draw attention to
the danger of crude oil on rail lines in the Pacific
Northwest, and to their contribution to irreversible
ctimate change. (,“Dr. Strangeweather,” Street Roots,
July 30, 30T5J
In a historic and highly anticipated trial that lasted
four days, the Delta 5 were allowed to argue that their
action was the lesser of two evils when compared to the .
status quo. In court shorthand, it’s called the necessity
defense. Specifically, the Delta 5 presented evidence and
legal arguments showing that their occupation of BNSF
property was necessary to protect the public’s safety,
calling numerous expert witnesses who testified to the
public health risks of oil trains, both in their immediate
risks to neighborhoods, and to the damages climate
change is bringing to Washington state. They included
Dr. Richard Gammon, professor of chemistry and
oceanography at the University of Washington, and Fred
Milar, a hazardous materials expert and former
consultant to the railroad industry.
In another groundbreaking lawsuit concluded in
November, King County Superior Judge Hollis Hill ruled
that the state of Washington had a constitutional duty to
uphold the public trust in natural resources and that this
created a binding obligation for the state to protect the
atmosphere for future generations. In an unusually dire
ruling, Hill said "... survival depends upon the will of
their elders to act now, decisively and unequivocally, to
stem the tide of global warming ... before doing so
becomes first too costly and then too late.”
One of the elders in that room was Abby Brockway.
Reflecting on the trial, she recalled, “Everybody wants
to kick the can down the road ... they said ‘Well, the
legislature’s supposed to do it,’ and they’re saying ‘No,
ecology’s supposed to do it,’ so nobody wants to try.”
Andrea Rodgers, who represented eight youth
plaintiffs in the November climate lawsuit, who in turn
brought the lawsuit on behalf of future generations,
explained “What Judge Hill said in our case is really
important for the world to know: that the climate crisis
is real, it’s happening now, and the government in
Washington state is not doing anything to address i t And
they need to step up and protect the fundamental rights
of these people ... people are starting to speak out and
defend their own rights in a variety of ways, and
hopefully the judges of the justice system will catch up
O
P H O T O B Y C H A R LES A . C O N A T Z E R
Apocalypse
on trial
Seattle's Delta 5 become the first
ever to argue in a U S. court that
civil disobedience was necessary
to slow down climate change.
with that.”
Under U.S. law, the necessity defense can be used
when a law is broken to protect the public, and no
reasonable legal alternative was available. One classic
example: A person is trapped in a burning building, and
another person breaks down the door to rescue the
trapped person. If such a person were ever prosecuted,
they could invoke necessity to avoid the charge of
breaking and entering. Other classic examples include
stealing food to avoid hunger, breaking out of a burning
prison, and organizing a mutiny when a ship is
unseaworthy.
In 2008, six defendants known as the Kingsnorth 6
cut the power to a coal-fired power plant in Kingsnorth,
England, and successfully argued in court that their
action was taken to prevent the greater harm of climate
change. In a successful application of the “lawful excuse”
doctrine - the English equivalent of the necessity
defense - the jury agreed with their argument, and the
activists were cleared of all wrongdoing.
By combining the imminent threat of oil trains with
their long-term contribution to climate change, the Delta
5 became the first ever to argue in a U.S. court that civil
disobedience was necessary to slow down climate
change.
he five defendants finished their testimony on Jan.
13, with expert witnesses completing their
testimony the following afternoon.
In public statements, Brockway said she felt
T
Street Roots •
compelled to take action against oil trains after one of
them derailed under the Magnolia Bridge just a mile
from her daughter’s school. “After that day I realized
that I couldn’t wait any longer - I needed to take
action,” Brockway said.
By timing the protest a week before a railroad union
voted on single-person crews, the Delta 5 had designed
the action, the court was told, to send a political
message and exercise free speech. Soon after the
protest, the union representing conductors
unanimously rejected one-person crews in one of the
largest voting turnouts in the history of the United
Transportation Union. Mike Elliott, a lobbyist with the
Brotherhood of Locomotive Engineers and Trainmen,
testified Jan. 14 that worker safety would have been
compromised by the move and that the Delta yard
protest helped affect the vote.
In the United States, past attempts to use such a
defense have not been permitted.
In November 2009, Tim DeChristopher was
forbidden to argue necessity after disrupting an oil and
gas au ction run by th e B ureau o f Land Management,
where he won 14 bids for mining rights before being
revealed as an activist At trial, District Judge Dee
Benson of Utah refused to allow DeChristopher to
argue the necessity defense. DeChristopher served two
years in prison.
On May 15, 2013, Jay O’Hara and Ken Ward used a
tiny lobster boat to block a 40,000-ton coal barge in
Somerset, Mass. After a Massachusetts judge cleared
them to use the necessity defense, the district attorney
agreed to drop all criminal charges. As he announced
the settlement outside the courthouse, District
Attorney Sam Sutter held a copy of Bill McKibben’s
Rolling Stone article “Global Warming’s Terrifying New
Math,” and told the crowd outside, “Climate change is
one of the gravest crises our planet has ever faced. In
my humble opinion, the political leadership on this issue
has been gravely lacking.”
Ward, O’Hara and DeChristopher were all present at
the Delta 5 Trial in Snohomish County, helping to raise
funds and speaking at public events promoting civil
disobedience. O’Hara explained, “Our top priority is
making sure that those of us who have had the
experience of doing this type of work in the movement
are able to have the backs of others who are willing to
take high levels of risk.” The three activists, together
with Marla Marcum, founded the Climate Disobedience
Center to support civil disobedience actions and
promote use of the necessity defense, which their
website describes as “a moral argument couched in the
language of criminal law.”
In order to prove they acted out of necessity, the
Delta 5 had to meet four conditions: that they were
faced with a clear and imminent danger, that they
reasonably expected their actions would be effective in
addressing the danger, that they did not create the
danger they were avoiding and finally, that there were no
legal alternatives that would have been effective in
addressing the danger.
Last Thursday, Judge Howard announced that
defendants had met the first three conditions of the
See TRIAL, page 11