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The Amazing Climate Trial (That Never Happened)

Climate chaos now threatens life as we know it. Shouldn’t a necessity defense be fair game?

Two years ago, four friends and I stopped the flow of tar sands bitumen from Canada into the United States by instigating the shutdown of five pipelines in Washington State, Montana, North Dakota, and Minnesota. In a letter, we called upon Obama to acknowledge the threat of runaway climate change by keeping them closed; tar sands is the most carbon-intensive oil, and a 2015 study had indicated that we need to be extracting “negligible” amounts of tar sands by 2020 if we want to avoid catastrophe.

We are not extracting negligible amounts, it may go without saying.

Instead, tar sands extraction is expanding by the day, with “replacement” projects like Enbridge Line 3 (in Minnesota) and the Kinder Morgan Trans Mountain pipeline (in British Columbia) slated to double and triple, respectively, their current carrying capacity.

The pipelines we shut down equaled roughly 15% of US oil consumption, according to Reuters; we’d had no idea of that when we planned the action.

On the second day of our trial in Minnesota, two weeks ago, my friends Annette and Ben and I were acquitted of our charges by the judge, due to a lack of evidence. This was eminently reasonable—there was no evidence we’d damaged or helped to damage a pipeline (our only remaining charges), for the simple reason that we hadn’t; we’d only damaged a few chains in order to access the shutoff valves.

While I’m grateful not to have a felony conviction (as our friends in the other states now do), and not to be in prison (as one of them was for six months), the moment of our acquittal was both shocking and, in truth, heartbreaking, because alone among them—alone among all climate activists in the United States—we had won the lottery and been granted a seemingly unfettered “necessity defense”, in which we could argue that we’d broken the law in order to prevent an imminent greater harm. The state had appealed this granting, but it had been upheld by the appeals court, and then the state Supreme Court had refused to hear a second appeal, thereby letting the ruling stand.

Other climate trials had had pieces of a necessity defense—in the 2016 Delta Five case in Washington State, expert witnesses were supposed to focus on local impacts only, and then the jury was instructed not to consider that testimony (because the court thought it hadn’t supported the claim that the defendants had had no legal alternatives, which is one required element of the defense), and in the 2018 West Roxbury Spectra case, there were no expert witnesses and no jury, but a judge found the defendants “not responsible by reason of necessity”. Ours, we thought, was going to be the first climate trial to give a comprehensive picture of the necessity of such actions to a jury of our peers.

Here’s something Dr. James Hansen, former director of the NASA Goddard Space Center, had prepared to say about imminent greater harm:

“Global warming from persistent high fossil fuel emissions is in the danger zone, [and] CO2 emissions from all such sources must be reduced with all deliberate speed, [and] the situation is becoming worse with each passing day…we are likely approaching climate tipping points from which there is no reasonable prospect of return. If ice sheets are allowed to become unstable, shorelines will not be stable at any time in the foreseeable future…Economic and social implications could be devastating. Because more than half of the largest cities in the world are located on coastlines … the number of refugees would dwarf anything the world has ever experienced. It is not difficult to imagine that the world would be nearly ungovernable.”

The Intergovernmental Panel on Climate Change report that came out on the very first day of our trial made it clear that his alarm is widely shared.

The necessity defense also requires that one have reason to believe her actions could be effective. Jamila Raqib, the Executive Director of the Albert Einstein Institution, was prepared to testify to that she’d studied the struggles for independence from Britain, against slavery, and for suffrage, civil rights, labor rights, gay rights, and more, and “in these examples and in many other instances, campaigns utilizing lawful means failed to achieve significant results. These campaigns were successful when they used nonviolent civil disobedience…in the case of climate change, it is likely that nonviolent civil disobedience will produce the public opinion changes needed for climate policy shifts at the federal and state levels.”

And finally, again, the defense requires that there be no sufficient legal alternatives to breaking the law. Writer and organizer Bill McKibben—who has spent thirty years engaging in essentially all of the “legal alternatives”—said that those activities had “not succeeded in enacting meaningful legislative change…primarily because of the unyielding political power of the fossil fuel industry, which is the richest industry on our planet.” Harvard Law professor Lawrence Lessig underlined this point in his declaration: “In the case of climate change, without substantial campaign finance reform, it is not reasonable to expect that lawful means of influencing policy-makers will be effective in generating adequate climate change policy that will protect human life and property.”

I believed that a jury provided with such information would be unable to unanimously convict us. More importantly, I believed that a hung jury or an acquittal could be a small, necessary piece of changing the law—and thereby setting us on a path towards sanity.

Four days before trial, after having just finished talking to each of the expert witnesses, our lawyers were elated: it was the perfect lineup, and they were going to be brilliant. With just a little luck (after two years of work and worry), we might set precedent, set dominoes in motion, and have a real impact on that most existential of problems, climate change.

An hour later, the judge returned his ruling on some standard pretrial motions in which the prosecutor had asked, among other things, that we be allowed fewer expert witnesses on climate change and civil disobedience: the judge declared that we would not be allowed any expert witness testimony on climate change, civil disobedience, or the lack of legal alternatives (though we ourselves could speak of these things). This was astonishing it its strangeness; the judge even quoted the dissenting opinion in the appeal that had upheld his own ruling.

We cannot know what happened to change his mind. What we did know was that our case was gutted. Who would you believe on climate change, if you were inclined to think it wasn’t a problem—a Seattle poet, or a former top NASA scientist?

I keep coming back to Hansen’s use of the word “ungovernable”, in part because it’s a word as seemingly mild-mannered as he is, and yet it packs a punch, and in part because some newspapers near to our trial opined that allowing us a necessity defense would lead to “chaos”. It struck me as deeply ironic even at the time, given the chaos that has already resulted in some places from climate change, and the far greater chaos that we know is coming. In the face of Hurricanes Sandy, Harvey, Maria, Michael, etc.—let alone the far greater woes caused by climate change in other countries, mostly in the global south—they’re worried about “chaos” from a couple of women carefully taking steps designed to instigate the shutdown of pipelines, then waiting an hour for the sheriff, fully prepared to go to prison in order to help safeguard a somewhat stable world for the editors’ kids and grandkids?

My mother was born in Duluth, which was the “big city” of her childhood; she grew up an hour east, in a small and very Swedish town on Lake Superior. She went to Christmas services—with real candles on the trees—in her uncle’s sleigh. A few years ago, we visited the house he’d built by hand, before power tools; it still stands, solid and tranquil, in a field at the edge of the forest. It had seemed fitting to me that it might be a rural Minnesota jury that would listen to us, listen to our expert witnesses, and do the right and practical thing. By her telling, my mother grew up surrounded by people dedicated to doing the right and practical thing.

If I go further back—to the mid-1600’s—I can take heart from one of her forebears: Catharina, a woman who was convicted of witchcraft in a village in Sweden, and sentenced to burn at the stake. Her husband Petrus—my sole illustrious ancestor in a long line of poor farmers—was a priest, and briefly a president of Uppsala University. He didn’t believe in witchcraft, which made the town suspicious of him, and he did believe in her; he fought for years to free her from the jail in which she was awaiting her death, before finally gaining her pardon (though she still wasn’t allowed to be buried in a churchyard). I thought about her the one night I was in jail after the pipeline shutdown; I thought about how incomparable the price is that other people have paid, and still pay, for bearing unpopular truths, or being a disfavored race or religion or gender, or for greed or envy (the mayor and his wife apparently disliked Petrus and Catharina).

What makes people like me frightening to the fossil fuel industry is that the truth about climate change leaves those who understand the science with little to lose, and literally all the world to gain. Compared to what we know we’re up against, prison isn’t a very big threat. Scientists have told us that the last time greenhouse gases triggered the tipping points that Hansen is warning us about, 95% of all life on Earth was wiped out. Scientists have also told us that their best guess is that we have not gone past the point of no return yet, though we likely only have a year or two to begin to make the deep social and political shifts necessary to avoid it.

When we metabolize these facts, if we love anyone or anything, we feel something like bulletproof—not because we are invulnerable, but because we know that we are all so profoundly vulnerable that the idea of safety is a delusion. In his inspiring recent essay in The Nation, Ady Barkan said, “it is in…moments of defeat that hopeful, collective struggle retains its greatest power. I can transcend my dying body by hitching my future to yours. We can transcend the darkness of this moment by joining the struggles of past and future freedom fighters.”

Day to day, I love my life: its great warmth and purpose and beauties and autonomy. But in this moment when inaction would mean the end of civilization and probably of humanity itself, I cannot be overly concerned with protecting those privileges; I’ve hitched my future to that of other people and other beings, the overwhelming majority of whom I will never know. I’ve hitched my future to life itself. What might we achieve, in fighting the forces that cause climate change? Even if we are very modest in our aspirations, such a list might begin:

The girl didn’t drown

The house wasn’t ruined

The people of the town retained the possibility of joy—for years.

Each of these things is worth going to prison for. In the aggregate, what people fighting climate change fight foris the continued possibility of life and joy. Aggregate comes from the Latin: “ad” for “towards”, and “greg” for “flock”— hope may indeed be the thing with feathers, but birds are also stamina, muscle, song, and great capacity to evolve, as they have done since they were dinosaurs.

Sometimes when I write, now, I wonder if I’m speaking a dying language, because I know that in a few hundred years, there may be no humans left to read anything that we now think important. But words, like birds and humans, still come together in a way that offers new meaning and intelligence, greater than the sum of the parts, and I hope that by combining them, like stars into galaxies, I might understand things a little bit better, and thus be more effective in this work that we do. I know very well that the words of others have changed my life, and guided me in the darkness; if I can do the same for others, if we can all feed each others spirits in this work, that can save lives—and houses, and towns full of people prone to occasional joy—in the most literal of ways.

We didn’t get the perfect trial. We didn’t get to make the difference I thought we might make. But we are undaunted, and after a few days of feeling stunned and even devastated, I woke up feeling mostly fine, and my wheels started slowly turning again: what can we do now that’s meaningful? There’s not much time. There wasn’t two years ago, when I cut the chains into the enclosure with the shutoff valves, and there certainly isn’t now.

People often ask us how we keep from despair, as though it’s a fatal illness to which we must be immune. But despair visits most of us constantly, I think, and then passes—sometimes slowly, sometimes quickly. We shouldn’t deny difficult feelings, but we also can’t let ourselves be distracted by them: this moment in time is not about our feelings. However much is lost, however much we can no longer save, there remains a great deal that we can save, and all of it matters: lives, dwellings, choices, the possibility of joy. Collectively, we are the most powerful people who have ever lived, because we have the chance to preserve individuals and species for many generations. In essence, we can be the ones who make space for a decent future—and the great luck of it is, we can often do that work surrounded by amazing people.

Would a doctor, feeling that it was likely she couldn’t save a patient, decide that getting him another ten or twenty years wasn’t worth the trouble? Who do we become, if when faced with catastrophic possibilities, we’re unwilling to simply focus on saving all we can?

Is there any hope? How long is a piece of string?

Long enough for the candles in our hearts. And if enough of us join in, maybe even long enough to knit the beauties of this world back together again.