Delta 5 Legal Case

The five blockaders hope to make the case to a jury that bold action is both justified and necessary in the fight against climate change, in light of government and corporate complacency. They aim to call witnesses to prove the greater harm of not acting to prevent climate change. This “necessity defense” has allowed juries for hundreds of years to decide that under some circumstances, if defendants legitimately felt their actions were done to mitigate a greater harm to society, their conduct may not be a crime. The evidence will focus on the two main elements of the defense: that the greater harms are “imminent” and that the defendants reasonably felt they had “no reasonable legal alternative” to their action.  

DSC_1072_600x900  The evidence at trial, about the “greater harms” will include testimony, that the risks of global warming are an emergency, and require urgent, rapid reductions of atmospheric CO2 emissions if we are to maintain a sustainable climate. The evidence will show that we are rapidly increasing greenhouse gas emissions on a global scale, and are on track to leave our children and grandchildren an environment that is not compatible with life as we know it.  We will present convincing evidence on all elements of the necessity defense, with an emphasis on how recent scientific findings show that multi meter sea level rise from an accelerating loss of Antarctic ice mass may reach irreversible tipping points much sooner than earlier projected. This is only one of the harms that makes climate change an emergency that must be addressed  now.

 There will also be expert witness testimony as to the harms caused by turning the Pacific Northwest into a fossil fuel corridor, and the risks this poses to both people and the environment from accidents, leaks, and spills from crude oil trains; massive pollution from coal dust released from uncovered coal train cars; and diesel pollution from locomotives of all of these trains. Expert witness Fred Millar, will testify as to the safety issues of transport of crude oil by rail; how BNSF practices increase the risk to harm to communities; how the railroads refuse to even provide secret risk documents that are necessary for communities to protect themselves; and how preparedness and response plans are seriously inadequate.  Physician, Dr. Frank James, will testify as to the public health and medical harms that are posed by the massive increase of coal and oil trains passing through Washington, and the dramatic increase of these risks as the number of these trains increases in the future.  Those in close proximity to the rail routes face substantially increased incidents of disease or worsening of many medical conditions, which cannot be mitigated, from various types of pollution to air, land and water.

DSC_1054_600x902 Testimony from a BNSF whistle-blower will describe a culture of retaliation by BNSF against employees who warn the company of dangerous conditions or practices that seriously increase danger to employees and the public. BNSF has used retired company managers  to inject deceptive or misleading information into the public debate over the huge increase of coal and oil trains and the harms they pose. False information is submitted in the permitting process to gain approval of huge, new oil terminals, from industry expert who must know better.

  There will be testimony that a study by Eric De Place in Sept of 2014 which showed that if all 26 of the fossil fuel rail terminal and refinery expansion  projects begun after 2012 are permitted and completed, the fuels transported when burned would add 822,000,000 metric tons of CO2 to the atmosphere every year — more than 5 times the CO2 that would have been generated by the crude oil that would have passed through the Keystone XL Pipeline. These numbers may be conservative, since many of these project designs can easily be expanded once they are approved. Tar sands products have found their way through this fossil fuel corridor, and are being exported from WA now. The export “ban” on US crude has little known loopholes, which will further increase the flood of crude oil through the Pacific NW.  The Gateway Pacific coal project near Bellingham would have capacity to add 48,000,000 tons of coal to US exports every year, at a time when scientists make dramatic, rapid reductions in coal fired power plants one of our highest priorities. The De Place study will show that if all crude oil rail terminal projects are approved and operate at capacity, there will be 102 oil trains a week through WA, and 18 more coal trains a day will head North through Seattle each day. Communities along the Columbia River, which are choking in coal dust now from 4-5 coal trains a day, from uncovered cars that each lose an average of well over 500 pounds of coal dust from trains of 125 cars. These communities will see an increase to 25-30 coal trains a day. Agricultural produces all over the state have struggled to get space on the rails to ship their crops before these proposed increases in oil and coal trains, and this is likely to get much worse.

 The defendants’ goal is to make this the first time in US history that a jury has considered the necessity defense in a climate change case. A not guilty verdict will allow a local jury to have their voices heard on what they feel is an acceptable level of risks to be born by our communities, which are being imposed on our State by the tar sands and Bakken producers. The defendants will ask the jury to say with their verdict that our government’s inaction in the face of such harms is not acceptable, both as to the destruction of our communities from toxic pollution as these trains pass through and as to the consequences for our environment when these fuels are burned in Asia. The hope is that a not guilty verdict in this case will be a precedent that can be used by others, who will engage in their own direct actions. Other civil disobedience cases, will allow juries in other communities to answer similar questions about what risks are acceptable to them, and what kind of a world they want to leave to future generations.

DSC_1027_600x902The defendants feel that our democracy is so corrupted by corporate political power and money that normal legislative solutions to climate change are no longer a viable path for change, and that it is time for a massive, non-violent social movement to force our government to take the actions that scientists say are necessary to restore our earth’s energy balance.  If the jury does not feel our evidence is enough, the defendants will  accept whatever punishment is ordered by the Court – including jail time. We hope that our commitment to this cause will inspire others to do more, in these two separate struggles — the damage to our state from a surge of  fossil fuels, and the threat of global warming that threatens the rights of our children to a habitable planet.

   The blockaders ask that their actions be viewed, not as a crime, but as reasonable act of conscience, necessitated by the extreme nature of the emergency and by the fact that the government itself is in violation of the law.   Climate scientist are in agreement that we must take rapid action to require dramatic reductions of CO2 emissions as quickly as possible. Our government is moving aggressively in the other direction, granting tax breaks, subsidies, permits, lax regulation, and regulatory loopholes, to  encourage fossil fuel productions and consumption. Almost half of the US Congress members are climate deniers; there have been flagrant efforts by high government officials to suppress warnings by government scientist of the dangers of climate change; and high level members of Congress have told the press that they are working to derail the Paris climate talks. Recently disclosed Exxon documents show their own scientists gave the company dire warnings of global warming in the early 1980’s (see our timeline). The US government has no solid plan for the necessary reductions of CO2; one party denies that humans have a responsibility global warming is real, and the other party is not willing to make the necessary changes.   Volume of crude by rail grew  6,000% from 2007-2013, and the projected to increase another 600% by 2035 may be nearly realized in a year of two from now. The US ranks 54th among nations on awareness of climate change, and a recent poll said that 37% of Americans feel that climate change is a hoax. Dr James Hansen’s testimony in our trial will explain why 97% of climate scientists say that global warming is a clear and present danger; that the widow of time to avert disaster is closing fast; and that our government shows no signs of being able to act to protect future generations from dangerous harms from climate change.

Attend the Delta 5 Trial, please RSVP!

Trial date is set for January 11th 2016, in Lynwood.  We hope that we will be able to present a necessity defense and will be able to put expert witnesses on the stand to argue that 1) there is verifiable imminent danger 2) that we had a reasonable expectation of efficacy in taking our action 3) that we have (and the climate movement has) pursued every available legal alternative. Attend the trial if you can, invite others to come as a light to the darkness of powers and principalities.  Dress in your best.


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