Faced with often overwhelming evidence of their guilt—including numerous live-streaming episodes of their own criminal “actions” on Facebook—anti-pipeline eco-terrorists are starting to employ novel legal defense strategies which, for the most part, are failing spectacularly.
One strategy can best be summed up as “justice by petition.”
One year to the day after more than 400 protesters stormed a line of police officers on the Backwater Bridge in an effort to halt construction of the Dakota Access pipeline, a dozen activists with the Lakota People’s Law Project delivered a petition to the Morton County (ND) state’s attorney requesting that all charges be dropped against the violent protesters. But even with 55,000 signatures (many of which were gathered online) the odds are quite slim that the state’s attorney is going to ignore the premeditated and unprovoked violent attack that resulted in numerous injuries to law enforcement and protesters alike.
Other eco-terrorist defendants are asking judges to let them use a “necessity defense,” a unique strategy that involves admitting guilt but arguing that the defendant simply had no alternative but to do something illegal to prevent serious harm. Specifically, a defendant must prove that:
- · there was a specific threat of significant, imminent danger;
- · there was no practical alternative to the act; and
- · the harm caused wasn’t greater than the harm prevented.
In the case of the activist “valve turners” who have attempted to use the necessity defense, they miss that mark by a long shot.
The “valve turners” are a band of aging activists who launched a coordinated effort last year to temporarily stop the flow of oil from Canada to the US through four states—Washington, Montana, North Dakota, and Minnesota—by breaking into the pipeline valve stations and closing emergency shut-off valves. To date, four of the five defendants were prohibited from using the necessity defense and were quickly convicted of multiple felonies. The jury in Montana took less than an hour to find valve turner Leonard Higgins guilty of felony criminal mischief. He is facing up to 10 years in prison when he is sentenced in January.
One valve turner, Emily Johnston, the co-founder of 350Seattle.org who is facing two felony counts for her role in shutting down a pipeline in Minnesota, was actually granted permission by the judge to use the necessity defense. But according to the judge’s memo granting the motion, the bar is set very high. Specifically, the defendants in this case must, among other things, “show that the defendant was in danger of imminent physical harm, and there was a direct causal connection between breaking the law and preventing the harm.”
Considering that the pipeline had been safely transporting oil for years, the only time the defendant was in any danger was when she broke into a secure valve station and sabotaged the pipeline.
But, as with all eco-terrorists actions, these crimes are not about stopping the flow of oil. They are PR stunts designed to generate media attention and public support for their misguided political agendas.
In fact, the “Keep It in the Ground” activist network cheered the judge’s decision to allow the necessity defense as a “groundbreaking” and “precedent-setting.” And 350.org founder and perpetual activist, Bill McKibben (who is being called a “potential expert witness” in Johnston’s trial) said, “The whole planet will be inside a single courtroom the day this trial begins.”
That day is tentatively scheduled for December 11, 2017. We’ll keep you posted.