Spokane Judge Allows Necessity Defense; Washington State Appeals
Spokane – On March 8, Spokane District Court Judge Debra Hayes issued an order allowing for the necessity defense in a jury trial scheduled to start April 23, 2018, involving a climate change protestor’s alleged delay of oil and coal trains in September 2016. On March 30, the Spokane County Prosecuting Attorney’s Office appealed Judge Hayes’ ruling.
In September 2016, the Reverend George Taylor joined with fellow Veterans for Peace members to block coal and oil trains from passing through Spokane. Their action followed a similar action by the local Raging Grannies. All six protestors were charged with trespass and obstructing a train; five pled guilty for various reasons. Rev. Taylor chose to go forward to trial, and filed a motion asking the judge to allow him to present a “necessity defense,” i.e., that he committed one harm (trespass and blocking a train) to prevent greater harms (climate change and risks of oil train derailments).
After hearings on June 26 and August 21, 2017, Judge Hayes ruled that Taylor may present the necessity defense to the jury to justify his alleged civil disobedience. She noted, “Civil resistance is breaking a law to uphold a higher law when the threat is imminent and every legal means has not resulted in policy change.” (Order at p. 8).
“Climate change is real, and neither government nor industry is taking appropriate action to address it. Citizens therefore must bring their own voices and actions to bear to try to stop destruction of the planet,” said defendant Rev. George Taylor.
In this case, the necessity defense is based on two distinct environmental dangers to the Spokane area posed by transport of fossil fuels by train.
First, the incineration of rail-transported coal and oil will contribute to climate change, which poses existential threats to the planet and all species, as soaring temperatures cause extreme weather patterns, disrupt ecosystems, and alter and destroy basic resources necessary for human life, including water availability and agricultural production.
Second, rail transport of Bakken crude oil is extraordinarily dangerous as demonstrated by oil train derailments and explosions throughout North America, including at Mosier, Oregon on June 3, 2016.
Judge Hayes’ necessity order was supported by testimony of two experts: Dr. Steve Running, Professor of Global Ecology at the University of Montana and co-author of the 4th IPCC Report on Climate Change for which he shared the Nobel Peace Prize, and Prof. Tom Hastings, Assistant Professor of Conflict Resolution at Portland State University, and author of several books on civil resistance, including A New Era of Nonviolence (McFarland 2014).
Judge Hayes’ necessity order made numerous findings, including:
The failure to act more forcefully to abate greenhouse gas (GHG) emissions will lead to harms that are severe, imminent, and irreparable, both at a global level and regionally in the Inland Northwest (Order at p.6);
Civil resistance can be effective in bringing about social change; historic victories such as de-segregation and women’s suffrage have resulted from civil resistance and the same result could be accomplished for environmental protections, resulting in institutional, corporate and public policy changes (Order at p. 7); and
When all other legal means have been taken, and those attempts have not resulted in change, the judicial branch is the last, best hope. (Order at p. 8).
“The judge nailed the problem: climate change is already causing adverse harms to the Inland Northwest ecosystems, which will in turn hurt people. And these harms will worsen. She found that it is reasonable to allow a jury to decide whether these harms outweigh George Taylor’s resistance actions for which he has been charged criminally,” said Rachael Paschal Osborn, Taylor’s attorney.
2016 saw the hottest global temperatures ever recorded; 2017, the second hottest year. The 400 parts per million of CO2 barrier has been exceeded – a key indicator of climate change – and the global average temperature continues to climb toward the two-degree Celsius threshold, a level that the international community has agreed should not be breached. This rise is expected to unleash even more erratic and devastating climate events such as the extreme wildfires experienced in the West and the devastating hurricanes that hit Texas, Florida, and Puerto Rico. In the U.S., we have long known that climate change is occurring but have failed to take action. Thirty years ago The New York Times reported that Climate Change Has Begun, Expert Tells Senate, but efforts to head off catastrophe have been continually delayed and thwarted by the fossil fuel industry.
The unholy and hated corporate leviathan known as Dominion Energy has begun felling trees for the Atlantic Coast Pipeline, a project poised to cross hundreds of rivers and streams and bore underneath the Appalachian Trail. Dominion’s ACP (along with EQT’s Mountain Valley Pipeline) disproportionately target communities of color and working class families in Appalachia. These projects have been rammed through via Dominion’s political and economic monopoly over every aspect of Virginia’s energy economy.
Dominion has already commenced with clearing and surveying using crews from Utah and Texas, despite their ear numbing promises of jobs for Virginians. We send out cheerful greetings to comrades everywhere.
Water Is Life! Death to the Black Snake!
– Three Sisters Camp
Indigenous communities know all too well of the potentially devastating risks that the construction of mega-projects can entail. Time and again, such projects have led to irreparable environmental damage that harmed if not destroyed the well-being, culture, economy and traditional ways of local communities.
The Raizal Peoples who inhabit the San Andrés, Providencia and Santa Catalina archipelago, Colombia could become one more indigenous community to be affected in this way. Should Nicaragua’s plans to build a canal go ahead, there is the risk that the massive project—that would rival the Panama Canal—would muddy and pollute nearby waters and potentially destroy the reef on which the Raizals depend.
With the risk of environmental damage and potentially devastating consequences for the Raizal Peoples in mind, Colombia applied to the Inter-American Court for information as to how it might interpret human rights law in this case. In response, the Court issued an advisory opinion in which it elaborated at length on the relationship between the environment and human rights law.
The Court noted, “Environmental damage can cause irreparable damage to human beings. As such, a healthy environment is a fundamental right for the existence of humanity.”
Its findings, though non-binding, sent out a strong message to both the regional and international arena that not only is there an inextricable link between a healthy environment and human rights but that this should be accounted for in the interpretation of human rights instruments.
In practice, this means that someone could in theory now bring a case before the Court on the grounds that environmental damage had led to a violation of their human rights. While significant legal obstacles have previously made it difficult for affected parties to seek meaningful redress in such cases, the verdict could not be more timely.
Proposed route of The Nicaraguan Canal (Spanish: Canal de Nicaragua), formally the Nicaraguan Canal and Development Project (also referred to as the Nicaragua Grand Canal, or the Grand Interoceanic Canal)
To date, claimants in the Americas affected by environmental damage have struggled to pursue legal action for the violation of their human rights for the following reasons:
Right to a healthy environment (San Salvador Protocol, article 11) not accepted as basis for a claim
Firstly, despite the fact that Article 11 of The San Salvador Protocol explicitly sets out the right to a healthy environment, this right is non-justiciable. That is to say, no-one could use a violation of this right as a basis for which to file a petition to the Inter-American Commission of Human Rights, and subsequently the Inter-American Court. Instead, the affected individual or group would have to bring a case under Article 26 of the American Convention on Human rights, the rights of which are justiciable.
The problem is that, while Article 26 protects economic, cultural and social rights, the only obligation it imposes on States is that they progressively achieve the full realization of these rights, making it an aspirational ideal for member States. For this reason, neither the Commission or the Court had previously ever found in favour of a claimant who had asserted their rights under this article. Furthermore, is has been unclear whether the right to a healthy environment would be deemed as being included in the scope of the rights protected under Article 26.
Problems of transboundary cases
In some cases, the cause of environmental damage occasioned in a particular place lies outside of a country’s border. This is problematic because human rights instruments are traditionally understood to only hold states responsible for damage occasioned in that same state, not for damage outside of their borders. This rather nebulous realm of extraterritorial obligations is, as one legal expert noted, “the conundrum…that bedevils human rights law”. If we can find some clarity in this rather nebulous world of international law it is that no-one hoping to a pursue legal action through the regional courts in the case of a transboundary claim could be confident their claim would be admitted.
Problems of bringing claims on the basis of violation of right to life
In theory, another means through which a potential affected party could file their complaint with the Inter-American Commission would be through arguing that their right to life had been violated as a result of environmental degradation. However, case law from the Inter-American Court shows that should a complainant want to argue their case on this basis, they would have to prove that the state had taken action which could be deemed to have an “immediate” and “certain” consequence on their exercise of their right to life–and that action wasn’t taken to “reasonably” prevent the risk of this happening.
There are cases which fall into this category such as Sarayaku vs. Ecuador, where explosives were laid on the Sarayaku territory or, for example, in Yanomami vs. Brasil where a highway was built though Yanomami land which resulted in several deaths. This said, clearly trying to prove the immediacy and certainty of a risk to life and integrity limits the number of cases significantly. By means of example, in 2005 when the Inuit argued that their traditional means of subsistence had been destroyed by climate change, the Inter-American Court did not find in their favour. Though the Court was not explicit with regards to its reasons for not accepting this argument, it can be supposed that it was indeed difficult to prove that climate change would have resulted in an “immediate” and “certain” negative impact on the subsistence of the Inuit Peoples and consequently their right to life.
The advisory opinion issued on Feb. 7 addresses these problems in the following way:
The right to a healthy environment
Firstly, the court reaffirmed the landmark decision made in the recent Lagos del Campo vs. Peru case, in which they found for the first time in favour of a claimant who had raised a petition on the basis of his Article 26 rights being violated. Secondly, the Court recognized that the right to a healthy environment as set out in the San Salvador Protocol was an autonomous right and crucially, should be deemed as being included in the rights set out in Article 26. What this means then is that the door is laid open to future claims for loss of a healthy environment brought under Article 26 of the American Convention, something that was not previously possible.
Transboundary claims will be actionable in the case of environmental damage
The Court found that countries will be held accountable for the violation of rights when the activities causing those violations are in their “effective control” i.e. they are responsible for them. This marks a significant widening of the traditional scope of a state’s responsibilities.
On this basis then, if, for example a state did complete a mega-project, the effects of which were felt outside of their borders, a case could be brought against them. In Colombia’s case, the Court seems to indeed be suggesting that should Nicaragua’s canal result in environmental damage in Colombia, affected parties would indeed have a case.
Some experts have noted that this could have important repercussions for air pollution, chemical pollution and even climate change.
Risk to life must still be “immediate” and “certain” but in the case of the possibility of significant environmental damage, a state has an obligation to prevent it taking place.
As expected, the Court’s opinion signaled no change with regards to the need for claimants to prove that actions undertaken would “immediately” and “certainly” result in the violation of their right to life. As such, it will remain difficult to bring forward claims on this basis. However, the Court did importantly recognize the very real potential that environmental damage has to cause violations of the right to life or right to integrity. With this in mind, it made several stipulations:
Firstly, the Court stated that States must prevent “significant environmental damage” (understood as damage that will violate right to life or integrity) both in or outside their borders. Secondly, it stipulated that they must do so even if there is no scientific certainty of such environmental damage: it is sufficient that significant environmental damage was possible.
The Court also offered clarity about what was understood by the meaning of the word ‘prevention’. It found that a State must conduct thorough and independent environmental impact studies as well as providing mitigation and contingency plans in the case of damage; regulate, supervise and monitor activities that could cause harm; cooperate with other States, providing them with information regards risks to the environment and ensure that potentially affected parties have access regarding potential harms
There is no doubt that the Inter-American Court’s findings offer reasons for optimism for both environmental and indigenous rights activists alike. Though non-binding, the advisory opinion provides a sign post for Courts of member States as well as lending much-needed legal weight to arguments made by potential claimants. Indeed, the advocacy group Dejusticia—which is currently pursuing legal action against the Colombian State for failing to curb deforestation in the Amazon—has said that it will use the findings to bolster its arguments. Of course, the advisory opinion will likely carry weight further afield too. The fact that a major human rights body such as the Inter-American Court has taken active steps to better protect citizens from the very real effects of environmental damage will surely put pressure on other major bodies to do the same.
Despite a court-ordered injunction barring anyone from coming within 5 meters (approximately 16.4 feet) of two of its BC construction sites, opponents of the Kinder Morgan Trans Mountain pipeline expansion sent a clear message Saturday that they would not back down.
Twenty-eight demonstrators were arrested March 17 after blocking the front gate to Kinder Morgan’s tank farm in Burnaby, BC for four hours, according to a press release put out by Protect the Inlet, the group leading the protest.
According to the release, the protesters were a mixed group of indigenous people, families, retired teachers and other community members.
“We’re going to do whatever it takes, and by any means necessary, and we’ll show up day after day until we win this fight,” Treaty-6-Mathias Colomb-Cree-Nation member Clayton Thomas-Muller said in the release.
Saturday’s action was an intentional show of civil disobedience.
“Everyone was very aware of the situation, of the possibility of arrest. And everyone was given the chance at any time during the day to leave that zone and not be arrested,” Amina Moustaqim-Barrette, protestor and 350.org communications coordinator, told the Vancouver Sun.
According to the Protect the Inlet website, Saturday’s action will kick off a two-week mobilization from March 18 to March 24. The activists need to prevent Kinder Morgan from completing key clear-cutting work by March 26, when the return of migratory birds will cause delays.
Thursday’s injunction also applies to the pipeline’s construction site at Westridge Marine Terminal, the Sun reported.
According to 350 Seattle, the Trans Mountain pipeline expansion project aims to triple the amount of Alberta tar sands oil carried from the Canadian Rockies to Burnaby, BC and Anacortes, WA from 300,000 to 890,000 barrels per day. It would also increase oil tanker activity in the Salish Sea and Strait of Juan de Fuca by 700 percent, threatening vulnerable orca populations and other marine animals.
The Trudeau government approved the Trans Mountain expansion in November 2016, but the social action group the Council of Canadians says it is inconsistent with Canada’s commitments to reduce greenhouse gas emissions under the Paris agreement. It is also opposed by over 61 indigenous groups; of the nine cases challenging the project in Canadian courts, seven were brought by First Nations.
Saturday’s action comes exactly one week after indigenous leaders from the U.S. and Canada inaugurated a traditional Coast Salish “Kwekwecnewtxw” or “a place to watch from” in the pipeline’s projected path. While construction started on the Watch House, 10,000 demonstrators marched in solidarity.
Trans Mountain’s lawyer Shaun Parker requested that Justice Kenneth Affleck, who issued Thursday’s injunction, also order the new Watch House removed. Affleck, however, ruled that it could stay, the Canadian Press reported Thursday.
“I’m sensitive to the concern of those who created this Watch House, that it is of considerable significance to them,” Affleck said, further ruling that the pipeline could remove it only if it demonstrated an emergency need, and that it would have to replace it afterwards.
Saturday’s protest wasn’t the only direct action against the pipeline expansion this weekend. 30 “kayaktivists” from a group called Mosquito Fleet surrounded a Kinder Morgan oil barge in Seattle’s Elliott Bay Sunday to protest the increased tanker traffic the project is slated to bring to the Salish Sea, King5 News reported.
Mosquito Fleet’s Zara Greene told King5 that the pipeline expansion would threaten communities on both sides of the U.S.-Canadian border. “Kinder Morgan is a threat to us all,” she said.
For Immediate Release
Media Contact: Talon Brings Buffalo
406-404-9131
Stephens Creek Trap, Yellowstone National Park
March 16th 2018
Hours before dawn on Friday March 16th, two members of the Wild Buffalo Defense collective arrived at the gate of Yellowstone National Park’s Stephens Creek Buffalo capture facility. They blocked the gate with three 55 gallon drums filled with concrete, locking their arms inside the barrels. The three 1000 pound drums blocked access to the facility, preventing livestock trucks from taking the wild buffalo to slaughter. This action came in the wake of a similar event last week at the Stephens Creek Trap, where two buffalo protectors locked themselves to the hydraulic squeeze shoot using a metal pipe.
Wolf, the first individual locking down, described why he was taking the action: “My father is from Michaocan, Mexico, so I have both native and colonizer blood. Since I wasn’t raised in a native setting, this is my way to give back to the native community. I’m from Illinois — it’s called the Prairie State, and there’s less than one one-hundredth of the prairie left. It’s all strip malls and corn fields…I don’t like seeing just concrete and steel. Seeing how peaceful the buffalo are and how strong they are, they go through enough hardship in their lives in the forest and the plains and then with what Yellowstone National Park is doing to them they still carry on. They inspire me to keep going.”
Coyote, the other individual blocking the gate, said: “I’m doing this to get a better understanding of what is really going on and to protect the buffalo and the lands that they roam. I feel like I have been lost inside…but now that I’m here I feel more combined with myself, with others, and with knowledge and understanding. Whenever I’m with the buffalo I feel like my heart runs with them. When I’m with them they already know the questions, they already know the answers, and I don’t have to respond because they already know. I think it’s a good thing for people to learn. There’s not a day in this world where you’re not able to learn something. What we’re doing is something we love to do and we only live once so we should do what we love to do and if anybody wants to come out and join and learn this experience then they should.”
The barrels were painted with two phrases, “Protect the Sacred” and “Honor the Treaties.” The words highlight the fact that Buffalo are sacred creatures to the Plains Indians. Blackfeet and Lakota prophecies say that when the wild buffalo return, the people and the earth will be healed. Yellowstone National Park currently captures and slaughters about 25% of the herd every year. If this mismanagement of the population continues, these prophecies will… [press release ends].
An hour before sunlight on march 5th two members of the Wild Buffalo Defense collective named Cody and Crow descended from the hills onto Yellowstone National Park’s Stevens Creek buffalo trap and using a steel pipe, locked themselves to the bars of the “Silencer”, a hydraulic squeeze shoot that holds buffalo for testing, shipping and slaughter. In freezing temperatures the individuals blocked the buffalo processing facility and prevented the park from shipping wild buffalo to slaughter.
When asked why he was taking this action Cody stated, “I am standing with the plains Indians as a member of the Ojibwe tribe in Minnesota, I have a Blackfeet friend who helped me protect my territory from the line 3 pipeline and now I am here for him and the buffalo. I have a love for the people. That’s what my mom passed down to me. And I have love for the environment and animals and I feel like I have an obligation to protect them. If I have to put my body on the line to do so I will.”
The two Yellowstone buffalo herds are the last free ranging, genetically pure, plains buffalo in the United States. These buffalo are decedents of the 23 that survived the buffalo extermination campaign that the US government implemented in the 1800s to starve the plains Indians into submission.
Today the Stevens Creek Buffalo Trap costs the Yellowstone Parks Service 3 million dollars per year to maintain and despite years of public opposition continues to operate their capture-for-slaughter facility within the park boundary. Activists and tribes allege that the Montana cattle lobby controls how the Parks Service manages of the wild buffalo. Crow, the other individual who locked himself to the facility stated “They say they need to kill the animals to stop the spread of Brucellosis, but the wild elk have Brucellosis and they are allowed to roam free because the cattle industry is not worried about elk competing for grass and the state receives income from the elk hunting permits.” Every year the facility captures and sends roughly 1000 animals of the 4000 wild buffalo population to slaughter.
While the two individuals locked themselves to the shoot, some activists gathered at the gate of the facility with banners reading “Wild buffalo slaughter = cultural genocide.” Their signs spoke to the connection between the culture of the plains tribes and the wild buffalo, suggesting that by exterminating the last wild buffalo, Yellowstone is effectively attempting to do the same to the culture of the plains tribes. The non-violent direct action came in the wake of a decision by the Montana department of livestock and the animal plant and health inspection service to deny the Fort Peck Indian reservation the right to receive wild buffalo from the park.
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