Minnesota judge allows ‘necessity defense’ in pipeline case

It looks like the last of the four “valve turner” trials will include the necessity defense. It was not allowed in the recent North Dakota case, and the two convicts will be sentenced tomorrow.

Here is the report from Town Hall Minnesota judge allows ‘necessity defense’ in pipeline case with my bolds.

MINNEAPOLIS (AP) — A Minnesota judge has taken the unusual step of allowing four protesters to use a “necessity defense,” enabling them to present evidence that the threat of climate change from Canadian tar sands crude is so imminent that they were justified in trying to shut down two Enbridge Energy oil pipelines last year.

Emily Johnston and Annette Klapstein freely acknowledge they turned the emergency shut-off valves on two pipelines on Oct. 11, 2016, in Clearwater County in northwestern Minnesota. It was part of a coordinated action by Climate Direct Action activists to shut down five pipelines that carry tar sands crude from Canada to the U.S. in Minnesota, North Dakota, Montana and Washington state. A total of 11 activists were charged.

Johnston and Klapstein, who are from the Seattle area, said Tuesday that as far as their legal team knows, this is the first time that a judge has allowed a full necessity defense on a climate change issue. They cited recent hurricanes and Western wildfires as evidence that climate change is making natural disasters worse, and they say tar sands oil contributes disproportionately because it generates much more carbon dioxide than other oil.

“It’s not just a question of a looming threat, it’s a disaster happening right now all over the world,” Johnston said.

Klapstein, a retired lawyer, said they know of one case in which a judge allowed evidence about climate change but then told the jury to disregard it.

“It looks like we’re going to be able to bring in all our experts and present our evidence of how dire climate change is, so we’re pretty excited about that,” she said.

Michael Foster, of Seattle, was convicted Oct. 6 of targeting the Keystone pipeline in North Dakota. His judge barred him from using a necessity defense. He now faces up to 21 years in prison when he’s sentenced Jan. 18. A defendant who filmed him was convicted of conspiracy and faces up to 11 years.

Johnston and Klapstein are due to go on trial Dec. 11 on felony charges of criminal damage to critical public service facilities and other counts. The charges carry maximum terms of over 20 years in prison, though prosecutors have said the most likely penalty is up to a year in jail. Two defendants who filmed them will stand trial together later on lesser charges.

In an order Friday, Clearwater County District Judge Robert Tiffany said the four defendants must clear a high legal bar.

In Minnesota, Tiffany wrote, a defendant asserting a necessity defense “must show that the harm that would have resulted from obeying the law would have significantly exceeded the harm actually caused by breaking the law, there was no legal alternative to breaking the law, the defendant was in danger of imminent physical harm, and there was a direct causal connection between breaking the law and preventing the harm.”

The judge said it applies “only in emergency situations where the peril is instant, overwhelming, and leaves no alternative but the conduct in question.”

The defense will have to persuade a jury in a sparsely populated county where Enbridge is a major employer and the largest property taxpayer.

Enbridge condemned the Minnesota protest as “dangerous and reckless.” The Calgary, Alberta-based company said it temporarily shut down the pipelines itself as a precaution.


A Valve Turner’s Trial: Mostly guilty October 6, 2017


  1. Bob Greene · October 18, 2017

    Deadheading running pumps is not a good idea.


  2. manicbeancounter · October 18, 2017

    The bar has to be set extremely low to use enable the Climate Necessity Defence to work, but the judge has set it pretty high. Assume:-
    (a) The IPCC AR5 was correct in saying 1000 GtCO2e of emissions from 2012 with result in 2C warming.
    (b) There are 50 GtCO2e of emissions per annum from 2012 to 2017.
    (c) Anything above 2C is cataclysmic, anything below is safe.
    (d) Disregard all causes of warming except emissions from fossil fuels.
    (e) The sole use of fossil fuels is as fuel.

    A rough estimate is that is that 2015 production of fossil fuels would have produced 37GtCO2 of emissions and that proven reserves (per BP estimates for 2015) would produce 2100 GtCO2 of emissions. This means well over half would have to be left in the ground, and no new discoveries exploited.
    So how is shutting down fossil fuel production in the USA, Canada and Australia going to save the planet? Surely the Middle East, China, Russia, Indonesia and India would have to pitch in?

    In reality, closing down production in Canada and USA will only result in increased production elsewhere, as I explained a few days ago.


  3. Ron Clutz · October 19, 2017

    manic, your analysis is sensible. Unfortunately, the activists are acting on their feelings alone.


    • manicbeancounter · October 19, 2017

      How bad is the Tar sands for climate change?


      Whilst the activists are acting on their feelings and see this as an opportunity to proselytize to a captured group, they forget that in a court whatever they say can be challenged. Further, they do not get the final say. After the defense rests its case, it is the judge who sums up before the jury decide. For instance, the Climate Disobedience Website forgets basic trail by jury procedures when it promotes the climate necessity defense.  Judge Robert Tiffany has said not only must the harms of the action be much less than the harms prevented but additionally the action should be used 

      “only in emergency situations where the peril is instant, overwhelming, and leaves no alternative but the conduct in question.”

      Given the belief is that catastrophic anthropogenic global warming will result from global greenhouse gas emissions, the action significantly reduce emissions, or at least highlight to the world the problem. But the graph about shows that recognition of the basic theory, and a little geographical awareness on the part of the activists, should make them at least be conducting peaceful protests outside many embassies and maybe getting foreign powers to commit to keeping fossil fuels in the ground. They have far from exhausted other possibilities before committing the crime. Even worse, shutting down Canadian Tar Sands, (which would not be achieved by a hundred such actions) would not significantly reduce global oil supplies, but could ramp prices, to the detriment of people in Canada and the USA. 

      Further, any marginal benefit of the action is about zero and spread over decades, but the direct harms to the local economy are immediate and significant. In fact, pretty much the opposite of the criteria for a climate necessity defence.  


  4. Pingback: Climate Necessity Defense for Minnesotan Valve Turners | ManicBeancounter

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