The historic Delta 5 oil train trial playing out in a courtroom north of Seattle this week is more than a case about climate disobedience and whether it’s justified. The small county courtroom, squeezed between a community college, miles of strip malls and highway choke points, has become a learning lab about elementary civics, corporate power and the limits of modern government. All are on the table as the Delta 5 and their attorneys state the case for “bold climate action” and wage a first of its kind legal battle to win over both the jury and the judge.
The defendants cleared an initial hurdle when their lawyers convinced Judge Anthony E. Howard to reverse himself and permit the “necessity defense” days before the trial was to begin. The defense is used in cases where harm caused by not taking action about something – in this case climate change and unsafe oil trains – outweighs criminal action. One of the defendants’ lawyers, M.J. McCallum, said Judge Howard “spoke about judicial humility when he made the decision” and was persuaded that the Delta 5 were attempting to do something that no criminal defendant had ever done in Washington State. “Those were powerful words from the bench,” McCallum said, words that “showed something few attorneys get to see in their career, another member of the profession being candid about a change of heart and mind.”
The decision doesn’t mean the judge will order the jury to use the “necessity defense” for one of its “instructions” in deciding the case. That won’t be revealed until the trial is concluded late Thursday or Friday. Six Greenpeace activists used climate change as a legal defense and were cleared of causing criminal damage at a coal-fired power station in the United Kingdom in 2008. Until the trial of the Delta 5, no similar case has been argued in the United States.
Tim DeChristopher, known to many as “Bidder 70” after he disrupted a Bureau of Land Management auction in Utah, has been in the courtroom all week. DeChristopher, who spent two years in federal prison for his action, now helps lead the Climate Disobedience Center, a group that encourages civil disobedience. He says he’s been waiting for years to witness the kind of trial the Delta 5 are waging.
“It’s been powerful for me personally, as somebody who’s spent the last seven years of my life focused on trying to make this kind of trial happen in an American court,” DeChristopher said. Judge Howard has kept the trial moving, he added, while remaining open to letting the court hear not only about climate change and the power of the railroad industry, but also about the role of protest and why the Delta 5 collectively chose nonviolent climate disobedience.
DeChristopher noted that the judge has also allowed the defendants to talk about the influence of corporate power – in particular, how Exxon sowed doubt about climate science for decades by stressing uncertainty. The judge also allowed the defendants to talk about their struggles with getting politicians to take action and the personal journeys that caused them to set up a tripod to block an oil train on a BNSF railroad.
“I did this for my daughter … The need for deep carbon reductions is pressing on us.”
Patrick Mazza is one of the defendants who chained themselves to one of the poles of the handmade steel tripod in the Delta rail yard in Everett, north of Seattle, on September 2, 2014. He’s been writing about and lobbying for clean energy solutions at the state level since 1998, and cowrote Stormy Weather: 101 Solutions to Climate Change, winner of a 2002 Nautilus Award at the New York Book Expo. He’s also a cofounder of Climate Solutions, a high-profile nongovernmental organization in the Pacific Northwest.
Mazza testified that after years of such work, he knew the time had come to step outside the legal realm when impacts of the climate crisis began to deepen – melting ice caps, baby oysters not being able to calcify because of ocean acidification, hurricanes and droughts – and when his teenage daughter asked if there was any hope for the world. “I did this for my daughter … The need for deep carbon reductions is pressing on us,” Mazza told the court. “We’re talking about significant carbon reductions over the next 10 years that will move us out of the fossil fuel age.”
Collectively, the Delta 5 – who include a coffee shop owner, a retired music teacher, an assistant middle school teacher, a house painter and Mazza – say their actions were as much about publicity and raising awareness as they were about shutting down a BNSF rail yard for eight hours. Massive mobilization is needed to address the seriousness of climate change and recklessness in allowing volatile crude to be carried in oil trains that have seen few safety improvements or meaningful federal regulation since the continent’s first major oil train explosion at Lac-Mégantic, Canada, in July 2013.
The deputy prosecuting attorney in the case, Adam Sturdivant with the Snohomish County Prosecutor’s Office, tried to paint the Delta 5 as “extremists” and “dangerous.” During jury selection, he asked potential jurors how they felt about protesters, using the KKK and those who protest at Planned Parenthood clinics as examples. Defense attorneys, who outnumber Sturdivant four to one in the courtroom (not including Mazza, who’s representing himself), countered the comparison, citing their clients’ belief in nonviolent resistance and “polite behavior” during the oil train standoff, as well as their cooperation when they were eventually physically removed from the tripod by the fire department. The defense also challenged the idea that their clients were dangerous. Lead counsel Bob Goldsmith, who represents Abby Brockway, the woman who rappelled herself to the top of the tripod as it blocked an oil train, asked a witness for the prosecution, an Everett police officer, if he remembered Brockway asking him to sign a petition to Washington State Gov. Jay Inslee, calling for a moratorium on oil trains and permits for new fossil fuel infrastructure. The officer recalled the incident, but said he wasn’t allowed to sign petitions.
During cross examination the prosecutor demonstrated a curiosity about Mazza’s work, asking if any of the clean energy projects he’d spent a good part of his career on had achieved any success. Mazza said many had, particularly biofuels for aviation and energy efficiency measures. But he said a state law he’d worked on for renewable fuel standards had been made ineffective by oil lobbyists.
“Oil trains continue to pose a very grave risk, and the risks have not been abated by the regulatory or legislative process.”
Expert witnesses for the defense, who spoke with Truthout before their testimony later in the trial, included a co-author of the very first Intergovernmental Panel on Climate Change report on the carbon cycle, Dr. Richard Gammon, emeritus professor of chemistry and oceanography and adjunct professor of atmospheric sciences at the University of Washington. Now retired, Gammon spends his time giving seminars on climate change.
“Although the message is very heavy, I’m hopeful that if we move forward vigorously, we can stop the worst from happening,” Gammon said, adding that we can’t stop climate change, but we can mitigate it. “How we do that in part is by stopping all new fossil fuel development, especially in our own country,” he said. Gammon’s testimony included a summary of how fossil fuel emissions are impacting the climate globally and in the Northwest.
Fred Millar, a rail safety expert, also spoke with Truthout before taking the stand as an expert witness. “Oil trains continue to pose a very grave risk, and the risks have not been abated by the regulatory or legislative process,” said Millar, adding that state and local regulators are preempted from doing much. “They’re making a show of doing what they can, which is to put some fees on the railroads and beef up inspections and emergency response capabilities, but it doesn’t significantly reduce the risks.” Railroad company power continues to run high “because they always get the legislation they need from Congress and they dominate the regulatory branch.”
If you want proof, said Millar, watch a 2014 forum by the National Transportation Safety Board about the safety of crude oil transportation. Top experts from the government and industry came together. One of the takeaways was the testimony of a top Federal Railroad Administration analyst, Karl Alexy, “who said you can’t build a tank car to withstand punctures at speeds of 30 or 40 miles an hour,” Millar said.
“Then everyone turned to look at the CEO of the American Association of Railroads, Ed Hamburger, to ask what the railroad industry could do to slow down trains,” Millar added. “He’s like the prince of the iron rail right, and he says, ‘we’ve already agreed to slow down our trains to 50 miles an hour through most of the country and 40 miles an hour through the high threat urban area. If you ask us to slow down our trains any further we’ll be slowing down lots of our other traffic, including our biggest corporate customer, UPS. And if we slow UPS trains, they’ll go back to truck.'”
Brockway, who identified herself as a mother, wife and small business owner, was the final defendant to take the stand. She explained that after years of feeling unheard and powerless as she attempted to influence the regulatory process through legal channels, an oil train derailment near her daughter’s school made her feel the need to take more direct action to disrupt the oil-by-rail system.
Testimony will conclude with BNSF safety whistleblower Mike Elliott and expert testimony from Dr. Frank Eugene James, a local physician who will speak to the health impacts associated with fossil fuel transport.
The big question remaining is whether Judge Howard will give the jury a necessity defense instruction before they’re asked to decide the case. If he does, says Delta 5 media spokesperson Ahmed Gaya, a Rising Tide organizer, “jurors will be making an unprecedented decision.”