Two Minnesota cases examine “necessity defense” for climate protests

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By Matt Doll – Minnesota Environmental Partnership

During this month, two important cases of civil disobedience have been brought before courts in Minnesota with a highly unusual twist. Defendants in Bagley and Duluth have been charged with disruptive action in opposition to oil pipelines, and they’ve been allowed by judges to employ a rarely-used tactic: Minnesota’s necessity defense.

This defense requires the defendant to prove that their otherwise illegal action was needed to prevent greater harm – in other words, that they had no choice but to act. Their reasoning: the threat of climate change is imminent and dangerous enough to require extraordinary acts of protest.

The valve-turners in Clearwater County

The first case was heard in Bagley. Two years ago, the defendants, known as the “valve turners” temporarily shut the valves on two oil pipelines in Minnesota to protest the climate impacts of fossil fuels. At the same time, other valve turners carried out similar, coordinated action on pipelines in other states. 

The Minnesota valve turners reported their actions to Enbridge and were charged with causing property damage to a pipeline.

The valve turners’ defense didn’t dispute the facts of the accusation. Instead, they petitioned Judge Robert Tiffany to allow them to present a defense based on the need for taking action to fight climate change. Tiffany made the unusual decision to allow the necessity defense to be used to persuade the jury, but chose not allow defense attorneys to call outside climate experts to testify.

The question was rendered a moot point on October 9, when he dismissed the charges entirely, stating that the prosecution was unable to prove that the shutoff had actually harmed the pipeline.

The dismissal surprised people on both sides, but the case had already given the valve turners a platform to make their argument: that tackling climate change requires extraordinary action – including civil disobedience.

A similar case is being tried in Duluth

This week, a court in St. Louis County has been the scene of a related trial for civil disobedience on the grounds of climate action. In January, Scot Bol, Ernesto Burbank (a member of the Navajo tribe) and Michael Niemi, accompanied by several protestors, protested at a Wells Fargo bank branch. The three men locked themselves to the entrance of the bank in opposition Wells Fargo’s bankrolling of Enbridge pipeline projects.

The defendants successfully petitioned court referee John Schulte to let them employ the necessity defense in an attempt to persuade him to find them not guilty of misdemeanor trespassing.

The trial began earlier this week, and MEP’s Great Lakes Program Director, Andrew Slade, watched arguments from the trial. According to Slade, Schulte has commended the defendants for their passion for social justice, and agreed that climate change is absolutely worthy of action.

However, the referee has not yet concluded whether Minnesota’s necessity defense should legally absolve the defendants of guilt in this situation.

No matter the outcome, these cases are part of a major shift

As the impacts and evidence of climate change have continued to mount up, it’s clear that the politics and law around climate action are changing. The fact that climate change is already endangering Americans around the country is incontrovertible among the scientific community and those of us who live through it. And it’s also certain that continued fossil fuel consumption is worsening these effects.

The real question before Minnesota is not whether or not to address climate change, but how to do so – and how soon.

Fortunately, we know the way to a better future. Electrifying our transportation, increasing energy efficiency, and expanding wind and solar power are positive, economy-building steps to reduce our carbon footprint. And they’ll help us to end our addiction to fossil fuels and hazardous oil pipelines.

Regardless of the outcome of these cases, we know that the necessity for combating climate is real. And this is the moment for Minnesota to prove that we’re up to the challenge.

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