In the quiet dark hours of early morning on September 2, 2014, a small group of climate activists made their way across the switching tracks of the BNSF Delta train yard in Everett, Washington. They erected a tripod over a section of track, locked themselves to it, and blocked the path of a mile-long, refinery-bound oil train for eight hours.
Four of the group, Mike LaPointe, Patrick Mazza, Jackie Minchew, and Liz Spoerri, anchored the bottom of the tripod, while Abby Brockway, who has described herself as “a mother, a Presbyterian, and a lover of democracy,” perched at the top, 25 feet off the ground. Later that day, wearing a green hard hat and holding homemade climate-action banners, Brockway gave a phone statement to local television news with the group’s demand that Governor Jay Inslee take action on global warming by rejecting permits for all new fossil-fuel projects in Washington state.
That was very big ask, but it got a crucial and underreported issue into the news. The state’s rail lines, rivers, and ports have made it a target for fossil-fuel companies seeking to export massive quantities of oil, coal, and gas from the North American interior to surging economies along the Pacific Rim.
If all of the coal export terminals, oil-by-rail facilities, oil pipelines, and natural gas pipelines planned for the Pacific Northwest are completed and fully utilized, a 2014 Sightline Institute report found, “the region could export fossil fuels carrying five times as much climate-warming carbon as Keystone XL.” Keystone XL is, of course, the recently vetoed pipeline for tar-sands oil. And the extractors of tar-sands oil are now looking for alternative routes to get it to market.
That’s obvious cause for consternation in climate circles. At present, at least 20 projects to build export terminals, refineries, or transportation infrastructure are proposed, planned, or on tentative hold for Washington and the rest of the Pacific Northwest.
Sightline’s updated estimates of the climate impact of proposed crude-by-rail terminals have found that planned oil-by-rail facilities alone could move 1 million barrels of tar-sands and Bakken-shale oil through Oregon and Washington per day. The extra oil production stimulated by the building of the terminals could contribute an additional 106 million metric tons of carbon dioxide per year, the equivalent of both doubling the greenhouse gas pollution of Washington state and doubling the number of cars on the road in Oregon and Washington.
Those figures help explain why climate activists from the grassroots network Rising Tide put themselves on the frontline that September morning in 2014. Arrested, as they expected to be, they were charged with trespass and obstruction, both misdemeanors, but still carrying possible jail time and fines.
The gears of the criminal justice system grind slowly. So it was not until the Delta 5, as they became known, had their day in court – in this case a full week and a jury trial that pushed the envelope on legal responses to civil disobedience as a means of climate change action.
The Delta 5 sought to use the “necessity defense,” which holds that breaking the law to prevent a greater harm is justified. In this case, that blocking the track was necessary to prevent the danger of transporting explosive oil by train and the great harm of global warming caused by exporting and burning huge quantities of fossil fuels.
The necessity defense, sought in the past by antiwar and nuclear-disarmament activists, has been allowed in only a handful of cases and successful in few. So it was something of a landmark when Judge Anthony G. Howard allowed the Delta 5 to present testimony, including from expert witnesses, to support the defense.
The necessity defense gives defendants the opportunity to explain their motivations and address systemic issues directly in their testimony. The Delta 5 and their defense team used this opportunity to the full over the five days of the trial, held in Snohomish County’s South District Court.
Patrick Mazza began the defendants’ testimony, describing his career as “promoting climate solutions.” He was asked to describe the climate change actions he had taken prior to blocking the oil train, thus establishing whether he had exhausted other avenues and activities before breaking the law. Mazza’s conversational testimony captivated the entire courtroom, including the judge and the prosecuting attorney.
“Civil disobedience in America has moved the system forward – in women’s rights and in the civil rights movement,” he said. “We have to do creative, unusual things that get the people’s and the media’s attention.”
Mazza described writing papers and working on campaigns to promote electric vehicles, sustainable aviation fuels, more efficient power grids, carbon reduction goals for the state, energy-efficient buildings, carbon soaking farming methods, sustainable animal feed – innovations and policies he said are possible and necessary to meet scientifically recommended carbon-reduction goals.
He said this requires “a WWII-type large engagement of the public,” but the political system is not responding adequately because the world’s most powerful industry has fought climate change policy for decades. Working his testimony around seldom-sustained objections from the prosecution, Mazza said that as fossil-fuel companies have focused on defeating attempts to curb carbon emissions, citizens have been frozen out of the process because “corruption tied up the political system.”
But, through actions like those taken by the Delta 5, he said, citizens can create enough pressure to make politicians change direction. “I’ve seen legislative defeat after legislative defeat. I feel in many ways our options are being exhausted here, because politicians are being bought off. The only alternative to political power is people power.”
That view was reiterated in the testimony that followed from the other four defendants, each of whom expressed a sense of the global dangers of climate change and the local dangers of oil transport by rail and described the many types of activism they had tried before committing civil disobedience by blocking the train track.
Then the court heard from the experts. Eric de Place presented the Sightline Institute’s research into fossil fuel export’s contribution to global warming. Scientist Richard Gammon spoke about the effects of global warming in the Pacific Northwest. Rail safety expert Fred Millar and BNSF safety whistleblower Mike Elliott gave testimony about the dangers of oil transport by rail. Physician Dr. Frank Eugene James spoke about the negative public-health impact of fossil fuel transport.
The case for the defense seemed to be lined up when, four days into the trial, Judge Howard ruled that it had failed to establish the necessity defense and instructed the jurors to disregard what they had heard from the expert witnesses. He added that his instruction was based on legal precedent rather than his personal views: “Frankly, the court is convinced that the defendants are far from the problem and are part of the solution to the problem of climate change.”
Apparently the jury thought so, too. The next day, they announced their verdict, finding the defendants not guilty of the more serious charge of blocking a train, and guilty only of trespass in the second degree. There was obvious relief when the judge issued sentences with no jail time: $550 fines and fees, a 90-day suspended sentence, and two years probation.
The trial’s victory in gaining public support was evident even in the courthouse. After the verdict, three of the jurors gathered in the hall to talk to the Delta 5. “In a heartfelt conversation the jurors expressed their support for the defendants, told their lawyers they would have acquitted on all charges were necessity instructions given, agreed to work with the Climate Disobedience Center to improve further cases, and signed up to attend a lobbying day on oil trains with defendant Abby Brockway,” according to Rising Tide.
During the week that the Delta 5 did their best to put political corruption and corporate greed on trial, it’s likely that some of the nearly mile-long trains running through Northwest neighborhoods and downtown Seattle were loaded with crude oil – not just any oil, but volatile Bakken shale oil. At the same time, public comment was open on the draft environmental impact statement for a proposed oil terminal on the Washington-state side of the Columbia River. If approved, the facility planned by Tesoro would be one of the largest crude-oil-by-rail terminals in the country.
Given the realities on the ground, it’s likely that the Delta 5’s blockade will be followed by others as climate activists strive to draw a thin green line across the Pacific Northwest. Their motivation was expressed by Liz Spoerri in her testimony: “We only have a short window of opportunity to address this issue … I hate to see this beautiful place be a vehicle for devastation. I think if the citizens knew, we would make better choices.”
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