Delta 5 Defendants Acquitted of Major Charges

Washington judge first in the US to hear “necessity defense” for climate-related civil disobedience, later instructed jury not to consider it

In a highly-anticipated decision announced January 15th, a Washington state jury has acquitted five climate activists of their major charge of obstructing a train. The defendants, known as the Delta 5, were prosecuted for demonstrating against oil trains in Seattle’s Delta rail yard, which is owned by Burlington Northern Santa Fe Railroad (BNSF).

Photo of Delta Five ProtestPhoto by Dan LongThe Delta 5 were prosecuted for demonstrating against oil trains in Seattle’s Delta rail yard.

The case marked the first time that a U.S. judge allowed defendants to present evidence showing that they practiced civil disobedience to avert the threat of climate change, and did so out of necessity. Under the “necessity defense”, defendants can escape prosecution if they can prove a law was broken to prevent a greater harm. In 2008, six Greenpeace activists used this defense in England, and were acquitted of all charges after cutting the power to a coal-fired power plant and painting the name of Prime Minister Gordon Brown on its smokestack.

In their effort to demonstrate necessity, the Delta 5’s defense called on several expert witnesses, including Professor Richard Gammon of the University of Washington – a co-author of the first monumental report from the Intergovernmental Panel on Climate Change, issued in 1990, as well as hazardous materials expert Fred Milar, who testified to the dangers of transporting crude oil by rail. Gammon testified to the damage climate change has already brought to Washington state, while Milar testified to the hazards of transporting crude by rail, and how rail companies shift those risks onto the public.

Despite allowing the testimony of these expert witnesses, Snohomish County Judge Anthony Howard decided on January 14th that the defendants did not meet the requirements for the jury to consider their necessity defense. As a result, the judge instructed the jury not to consider whether the defendants acted out of necessity. In explaining his decision, the judge argued the defendants had not demonstrated a basic case that there were no reasonable legal alternatives to their actions.

The next morning the jury found the five defendants guilty of trespassing on BNSF property, but not guilty of obstructing a train – a charge that would have carried a heavier sentence. As a result, the defendants – Michael LaPointe, Patrick Mazza, Jackie Minchew, Elizabeth Spoerri, and Abigail Brockway – were sentenced to two years of probation, but no jail time.

Although the jury was instructed not to consider the necessity defense, the case still represented a major breakthrough for allowing the jury to hear the arguments and the evidence supporting it in a climate change context.

Summarizing the importance of the Delta 5 case, Tim DeChristopher of the Climate Disobedience Center, who was present at the hearings, called it “the most comprehensive and coherent case for climate activism that’s ever been presented in an American courtroom.” (Read EIJ’s most recent interview with DeChristopher here.)

In the halls outside the courtroom, three members of the jury admitted they would have acquitted the defendants had they received a necessity instruction from the judge. They also thanked the defendants for giving them an education on climate change, agreed to support the Climate Disobedience Center in future cases, and signed up with defendant Abby Brockway to lobby the state on oil trains.

Mary Wood, a legal scholar at the University of Oregon, says it is a strange but inspired coincidence that the Delta 5 trial occurred just two months after another historic climate change trial in Washington State. In that case, which represented eight youth plaintiffs, the judge found that all citizens have a right to a stable climate, and the government has a binding constitutional obligation to protect the earth’s atmosphere. Wood, who developed the legal theory behind this ‘Atmospheric Trust Litigation’, says that the executive and legislative branches at both state and federal levels have done a poor job of addressing climate change, which makes judicial proceedings like these indispensable for policy change. “Nothing focuses these branches better than a court judgment,” she explains.

Facing absent or even counterproductive leadership at the federal level, the trend has been for cities, citizens, and tribal voices to rise up against the threat of climate change in the Pacific Northwest.

In December last year, Congress repealed the 40 year ban on exporting crude oil from the United States – paving the way for an increase in crude by rail infrastructure in the Pacific Northwest.

A day before her trial began, Abby Brockway spoke about this congressional action in a sermon she delivered at the Woodland Park Presbyterian Church. “Many of us who were actively defending the west coast from big oil knew this protection would be taken away,” she said.

Professor Wood says the necessity defense used by the Delta 5 was unique in that it shifted the jury’s attention away from simple trespass charges to “corporate actions that are causing global destruction and death through climate disruption.”

“In a practical sense, given the horrendous explosions that have occurred elsewhere, every time an oil train carrying explosive fuels comes through a community, that’s an imminent threat – every single time,” says Professor Wood. “This provides a striking context for the necessity defense.”

Although cases like these may begin with the property rights of corporations, Wood says that “once you put the necessity defense into the equation, the focus then switches to the property rights of the public that these citizens are trying to defend. The damage to those property rights – the public trust, the air, water, and climate – far outweighs any temporary interruptions of property use that the corporation suffered.”

Judge Howard agreed with this point – he told the court the Delta 5 had produced sufficient evidence that the harm they were averting was greater than the one they caused through civil disobedience.

According to historian Jeremy Brecher, the public trust framework advanced by Atmospheric Trust Litigation strengthens claims that civil disobedience performs a public duty, and could therefore become the basis for widespread civil disobedience against climate change. Brecher describes this as an effort to enforce the law through civil disobedience – a point echoed by one of the Delta 5. “It wasn’t that we just decided to break the law on a whim, but we tried everything else and we felt like we had no other legal alternative,” said Abby Brockway, speaking after the trial. “And that is exactly why we had to break the law – to enforce the law.”

The trial of the Delta 5 highlights the strong regional opposition to fossil fuel exports that has emerged in the Pacific Northwest – opposition which has evolved from citizen opposition to city opposition. Mary Wood says this development has benefited tremendously from indigenous leadership.

“I think there’s a distinctive regionalism being defined by the tribal elders, standing right next to average citizens, mothers and fathers and teachers, and that this regionalism is being asserted on behalf of not only the region but the planet as a whole and future generations,” she says. “That’s why I think [energy analyst] Eric De Place says this is where fossil fuel projects come to die, because no other region has this fusion of citizens rising along with the tribal voices.”

Beyond the courtroom, this opposition has included a number of local and tribal resolutions banning oil trains and expansion of fossil fuel infrastructure.

Commenting on the trial of the Delta 5, Don Sampson, the Climate Change Coordinator for the Affiliated Tribes of Northwest Indians, says “Climate change impacts can no longer be adequately addressed or mitigated by man’s written law, but only by following nature’s law, the Creator’s unwritten law — what our indigenous people refer to as Tamunwit.”

“I believe these people are standing up for this unwritten law of nature, Tamunwit,” he says. “No man’s law or law of any nation is more powerful than Tamunwit. It will prevail and must be followed before we suffer the consequences, and more importantly, our children suffer the consequences of our action and negligence.”

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