In Washington, activists and the ‘necessity defense’ on trial

The 'Delta 5' made a legal and moral case for their actions, with mixed results.


In mid-January, a standing-room-only crowd packed a county courtroom near Seattle for a case so minor it normally would not have gone to trial. The five defendants were each charged with two misdemeanors: trespass and obstructing a train. All admitted to the crimes but pleaded “not guilty.”

Their defense, in simplified terms, was “climate change made me do it.”

At sunrise on Sept. 2, 2014, the five slipped into Burlington Northern Santa Fe’s Delta railyard in Everett, Washington. They wanted to take a stand against the expansion of fossil-fuel transportation corridors in the Pacific Northwest, a crucial export hub to Asia, so they decided to try blocking a coal or oil train.

The protesters erected a tripod of steel poles across the tracks in front of an orange locomotive trailed by silver oil tankers. Abby Brockway scaled the tripod; the other four — Patrick Mazza, Liz Spoerri, Mike Lapointe and Jackie Minchew — locked themselves to its legs. Police and firefighters eventually used a fire-truck ladder to extract Brockway, and all five were carted off to jail.

The “Delta 5” protesters’ intent all along was to face a jury, Mazza says. They hoped to be the first climate activists to mount a “necessity defense” in a U.S. court, arguing that their crime was necessary to prevent greater harm — in this case, potentially explosive oil trains traveling through Northwestern communities, and the climate-changing emissions that would be produced by burning that fossil fuel.

Abby Brockway waves from atop a tripod erected to block trains at a Burlington Northern Santa Fe yard in Everett, Washington, to protest oil and coal export terminals in the Northwest.
Elaine Thompson/AP

Climate activist Tim DeChristopher had attempted a necessity defense in 2011 when he was tried for bidding on federal oil and gas leases in Utah under false pretenses, but the judge disallowed it. Two East Coast activists, Jay O’Hara and Ken Ward, also hoped to make the argument after blocking a coal tanker in Massachusetts in 2013, but the prosecutor dropped the charges.

All three activists were on hand for the Delta 5 trial. Through their recently launched Climate Disobedience Center, they had been helping the protesters prepare since September. The center’s goal, says DeChristopher, is to unleash the “full potential of civil disobedience as a tool for change.” He says that often means passing on a plea bargain, going to trial and taking advantage of the resulting public spotlight. The center is particularly focused on testing the necessity defense. Since some people who commit acts of civil disobedience believe they’re obeying moral laws, it can be a way to make a moral case for climate action. But it’s also a way to make a legal argument that the government is failing to protect the public trust, DeChristopher says. “We think it’s the perfect platform to make the full case for climate action.” 

Judge Anthony Howard took a major step in even allowing the Delta 5 to present a necessity defense. Their lawyers presented evidence and called expert witnesses who spoke of the imminent and severe threat of climate change, the health and safety risks of oil trains, the Northwest’s potential to become a major transportation corridor, and the activists’ past efforts to seek change through legal means.

In the end, though, Howard ruled they hadn’t proved that they had no reasonable legal avenues through which to effect change, and he instructed the jury that it could not acquit on necessity. The protesters were found guilty of trespass, but not guilty of obstructing a train on other grounds. They each received two years of probation, four got $553 fines, and one a $53 fine.

The necessity defense is just one unconventional strategy climate activists are pursuing in court, and Washington state has so far seen their most noteworthy successes. A 2014 lawsuit filed on behalf of eight young King County residents sought to force the state to cut carbon to protect the people’s right to a clean and stable atmosphere, which their lawyers argued was part of the public trust. This November, a judge upheld the environmentalists’ essential argument that the state is legally required to “preserve, protect, and enhance the air quality for the current and future generations.”

Such “atmospheric trust” cases — the brainchild of University of Oregon law professor Mary C. Wood — seek to move policy, asking the courts to compel states to develop carbon emissions rules. Civil disobedience and necessity defenses seek to move the people — “to awaken the conscience of a community,” as DeChristopher puts it. They play out in the court of public opinion as well as in a court of law.

After the verdict, three jurors approached the defendants, expressing regret that they couldn’t acquit on both counts. Companies are trying to push dirty energy through Washington to make a quick buck while they can, said juror Joe Lundheim, according to the Seattle alternative weekly, The Stranger. “I know this because I’ve been listening to this stuff all week long, so thank you for that.” Another juror, Sue McGowan, said, “We don’t want the corridor.”

And so it appeared that the Delta 5 had at least some success. “We got to present the case,” says Patrick Mazza, the only activist to defend himself in the trial. “We gained tremendous media attention. That’s how you reach people.”

Contributing editor Cally Carswell writes from Santa Fe, New Mexico. @callycarswell

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