Oil and water: The Line 3 debate

Climate change trial: MN jury to decide if protesters' lawbreaking is justified

People danced to the drums in front of the Capitol.
People danced in front of the Minnesota state capitol in St. Paul in September 2017 to protest the Line 3 replacement project.
Maria Alejandra Cardona | MPR News 2017

As the sun rose on Oct. 11, 2016, two Seattle-area women drove down a northwestern Minnesota highway ready to break state law in the name of saving the planet.

"This is the only way we get their attention," retired lawyer Annette Klapstein said in a video as she and Emily Johnston prepared to shut down two major Enbridge Energy oil pipelines.

"All other avenues have been exhausted ... for the sake of the children and the earth that we love, I'm ready to do this."

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Klapstein and Johnston took bolt cutters to a padlocked chain guarding a shut-off valve on Enbridge lines 4 and 67, which carry millions of gallons of oil daily across the state from western Canada's Alberta Tar Sands. A third activist, Ben Joldersma, called Enbridge as a warning. Enbridge then temporarily shut down the lines as a safety precaution.

They all now face felony charges that could bring 10 years in prison. But the trial, set to start Monday in Bagley, comes with a rare, intriguing twist. Minnesota District Court Judge Robert Tiffany has agreed to let the three present a "necessity defense."

They're expected to argue that climate change is such an imminent danger that it justifies breaking the law, like breaking and entering to save someone from a burning house. Over the years, activists have tried to use the defense in protests against abortion and nuclear power plants, and more recently, in the fight against global climate change.

While it might be tough to win over a northern Minnesota jury, climate activists around the country are watching, because if they win, they believe that could help shield future activists from jail time for committing acts of civil disobedience.

The necessity defense can allow someone to break the law if they're facing a choice between two imminent harms, explained Lance Long, a law professor at Florida's Stetson University who studies the use of necessity defense. "You have the right to choose the lesser harm to avoid a greater harm."

Climate change on trial

This trial in Clearwater County is rare because the activists will be allowed to argue that their actions to shut down the pipelines were justified because of the danger of climate change, which is caused by the burning of fossil fuels, including the oil flowing through Enbridge pipelines.

Enbridge Enery Line 3 Protest
A protester is suspended at the top of a tepee erected outside Wells Fargo in downtown Minneapolis Thursday during a protest against Enbridge Energy's planned Line 3 replacement project.
Jeff Baenen | AP

But to succeed, they have a high legal bar to cross. They'll have to demonstrate that they exhausted all legal options in trying to stop climate change.

"In this case, the defendants are being allowed to put on evidence of basically what their activist resumes are," said their attorney, Lauren Regan, with the Civil Liberties Defense Center, a nonprofit that defends environmental and social activists around the country. "Their testimony will be that all of those attempts failed."

They also have to prove climate change presents an imminent danger, and that their criminal act would help to address that danger.

Until a ruling by the judge late last week, the defendants were planning to call expert witnesses — internationally-known researchers and activists who focus on climate change and civil disobedience — to help bolster their argument.

Regan had lined up a roster of well-known experts including retired University of Minnesota climatologist and frequent MPR News contributor Mark Seeley; former NASA and current Columbia University climate scientist James Hansen, who was one of the first scientists to warn about the threat of human-caused climate change in the 1970s; and writer and activist Bill McKibben.

Now the judge has forbidden those experts from discussing climate change and civil disobedience. Instead, it appears the argument will fall largely on the defendants themselves to establish to the Clearwater County jury that climate change is a real and imminent threat.

OK to break the law?

If they win, experts say it could embolden other activists in the future.

The first generally recognized attempt in the U.S. at using the necessity defense to curb climate change came in 2009, when an activist named Tim DeChristopher bid $1.8 million that he didn't have on federally owned oil and gas leases in Utah, with no intention of ever developing them.

A young girl holds a sign as she stands with protesters at the Capitol.
A young girl stands on the steps of the Capitol in solidarity with protests against Enbridge's proposed Line 3 replacement project in September 2017.
Maria Alejandra Cardona | MPR News 2017

But the court didn't allow him to assert the necessity defense, and he ultimately served two years in prison for violating federal leasing law and making false statements.

Since then, there have only been a handful of cases where climate activists have been permitted to argue the necessity defense, which makes the case of Klapstein, Johnston and Joldersma in northern Minnesota so important.

The three were part of a coordinated effort that October morning in 2016. Five self-described "valve turners" in Minnesota, North Dakota, Montana and Washington temporarily stopped several pipelines carrying Canadian oil into the U.S.

It was a largely symbolic action designed to encourage a sharp move away from fossil fuels to avert catastrophic climate change. But if Klapstein, Johnston and Joldersma win with a necessity defense, some believe it could signal to other activists that breaking the law in the name of climate change is no crime.

"Many other people would notice that and it might conceivably spark additional actions, although of course it would be very risky for anyone to rely on the necessity defense going forward," said Michael Gerrard, who directs the Saban Center for Climate Change Law at Columbia University.

State prosecutors challenged the judge's decision to allow the necessity defense, and the Minnesota Chamber of Commerce filed a friend-of-the-court brief in support of the state. In April, the state Court of Appeals upheld the use of the necessity defense.

The state and the chamber argued the ruling will unnecessarily confuse the jury.

"This trial is about significant crimes of damage to property, sabotage and trespass, which the defendants have already admitted to doing," said Laura Bordelon, the chamber's senior vice president for advocacy.

In northern Minnesota, where authorities have seen an increase in pipeline protests in the past several years, many in law enforcement fear a not-guilty verdict in Bagley will open the door to mayhem.

"Whether you agree or disagree politically with pipelines, with climate change, I don't care what side of the issue you're on," said Beltrami County Attorney David Hanson. "If you give people the perception of the color of law to hide behind, they're going to push that envelope."

Hanson, who previously served as the Clearwater County attorney before moving to neighboring Beltrami, said his main concern is public safety for protesters and for the general public. The freedom to assemble and protest, he added, doesn't extend to committing felonies.

"They're going to take their First Amendment right to assemble, and they're going to push it beyond the right to assemble," he cautioned. "And they're going to start committing more crimes."

Jury selection is scheduled to begin Monday in the Clearwater County Courthouse.