This land is your land

I spent the last few days traveling across the country to North Dakota to join others in supporting a gentle man who tried to help everyone. For that he was convicted of several crimes and will be heading to a North Dakota prison.

Michael Foster was born and raised in Texas, in an oil family. His crime in North Dakota was turning off the Keystone pipeline in a symbolic but real call to all of us to do what we can to stop global climate chaos.

That North Dakota valve turn was one of five similar actions last October--two women, three men, five valves on lines in Washington state, Montana, North Dakota, and Minnesota, all done in resonance with the Break Free from Fossil Fuels campaign.

We see the buck-naked consequences of paying no attention to our oil consumption; Harvey drowns Houston, fires rip through the West, every hurricane is more intense than it otherwise would be, droughts last longer, lakes are drying up, the seas are rising and surging, and with fracking even earthquakes are no longer a pure act of God. Most previously natural disasters are now unnatural disasters, made worse by our hand more than the hand of God or Mother Nature.

The Trump regime is doing worse than nothing; they are exacerbating the problem by rolling back the tepid regulations the Obama administration brought to bear. Trump yanks the US out of a world agreement to fix this, the Paris Accords. He gets Rick "Never-met-an-oil-well-I-didn't-like" Perry as his Secretary of Energy and Scott "That-pollution-smells-like-money-to-me" Pruitt to run the Environmental Protection Agency--into the ground. Trump promises to bring back dirty coal. It is Satanic, frankly, with zero regard for the children of the world, for the generations. He's old without any discernible conscience. Who will confront him?

Michael Foster, Leonard Higgins, Ken Ward, Emily Johnston, and Annette Klapstein will. They have.

I attended Michael's trial as much as possible, although I couldn't be in the room in the beginning because I was scheduled as an expert witness and we were sequestered until we testified--or until the judge disallowed us...which she did.

Michael was facing 23 years in prison on four charges. Three of us were there to provide expert testimony in three topic areas to help the judge and jury understand why Michael should be acquitted. Two of us were there to speak to different aspects of nonviolence and one was on hand to speak about the urgency of a rapid change in our general habits but a specific exam of the dirty tar sands oil that flows through the Keystone pipeline. Climatologist James Hansen is 76 years old and is the one who announced that "global warming has arrived" in 1988 when he worked as a scientist at the Goddard Space Center. Every single prediction he made then has come to pass. He is arguably the world's top scientist in that area--certainly the most famous. He’s Trump’s age, only with a long-view conscience and integrity.

The court could not be bothered to listen to this eminent scientist, someone who could have helped the judge and jury become at least familiar with the emergency that we see unfolding all over nowadays, made much worse by the dirtiest sort of fossil fuel--tar sands oil.

The contempt for anyone coming to North Dakota to "tell us how to live" (the prosecutor's attack on Michael, who is now from Seattle) was palpable. The judge allowed the prosecution's expert witness, demonstrating some spectacular inconsistency and hypocrisy. As one who woke up a few times this summer to unbreathable air and everything in my town covered in forest fire ash, I say to North Dakotans, you need to fix this. We will do our part but you need to do yours. Most of us know at least one or two people in Houston, or in the Santa Rosa area, or in Miami or Puerto Rico. Are we Americans who value all other Americans or are we not?

But the prosecutors were dismissive. Hell, Foster only faces 23 years, why give him a chance to reason with jury members? Let's not confuse them with the facts.

The trial in tiny Cavalier, North Dakota, in remote Pembina County, was heartbreaking.

Now

Don't you just love it when a problem occurs and the one who caused says something like, "Now is not the time to talk about it."

Huh?

Such as when Harvey hit Houston, a hurricane made into a monster by the extra-warm Gulf of Mexico, and all that additional warmth in the ocean produced by human-caused climate change. Streets became rivers, houses and people were swept away.

Hurricane Irma leveled towns roared through the Caribbean, twisting and killing in September.

Fossil fuel burning--oil, gasoline, natural gas--warmed the air, warmed the ocean, and what did Trump’s EPA head, Scott Pruitt say? Now is not the time to talk about climate change.

Seriously. That is exactly the best time to talk about it. When cities are inundated is when folks need to know why. Floridians want to know if there is any way to prevent unprecedented storm surges and record sustained winds sometimes nearing 200 mph, ripping off roofs and flattening trees and buildings.

When conflagrations are burning down the astonishingly beautiful forests of the Pacific Northwest, when iconic parklands and treasured places are in flames and we cannot breathe, when we wake up in my town of Portland and everything is covered with the ash from these firestorms, that is precisely when we need to talk about changing course and fixing this.

Now 59 people shot dead and more than 530 wounded from automatic gunfire and what does Sarah Huckabee Sanders, the White House spokesperson say in response to questions about gun control? "Now is not the time to talk about it."

Hogwash. It is precisely the time to talk about it.

Why, indeed, does Donald Trump immediately tweet about his travel ban and wall after every news item about either a terror attack anywhere on Earth or an undocumented Hispanic person getting a parking ticket (this is almost not exaggerated)?

Time to talk. Time to study. Time to act.

Seriously address anthropogenic climate chaos. Reward clean energy. Rapidly phase out Keystone pipeline dirty tar sands oil. Rapidly phase out coal-burning electric-generating plants. Radically reduce the highly fossil-fuel-consuming US foreign military presence and thus carbon footprint. Now.

Repeal the Stupid Second Amendment. That is how citizens, towns and states can regain their rights. As it is, when a city tries to ban certain weapons the NRA rolls in with their kill squad and finds plaintiffs to sue. The Supreme Court eventually says, hey, no local or state control for you--it's in the Constitution. Gun rights trump human rights.

Ironically, those who historically clamor for states' rights are now the ones smashing states' rights. They wanted states' rights to discriminate against various races, genders, sexual identities, and unions, most notably in the infamous U.S. Supreme Court 1857 Dred Scott decision in favor of slaveowners but many times since. Now, hypocritically, they want to do away with a state's right to ban as many proven killer weapons as they wish.

Some of us want to live amongst others in civil society in which issues are resolved without guns, where someone with a concealed mental health issue cannot carry a concealed weapon--because no one is carrying weapons in that town.

Some want to live in states with essentially no limits to weapon ownership short of a nuclear bomb. Great. Good luck with that, Texas and Idaho. But when Chicago--formerly the murder capital of the US before it banned certain guns--tries to pass bans on some guns and they are told they cannot, that the ban is lifted, what sort of freedom is that?

Guns do not produce freedom; guns are often the direct enemy of freedom. Each locality needs its freedom back, the freedom as it defines it.

Now is the time to talk about it.

Catalonia to Cascadia

Since last November many of us in many places in the US have heightened dreams of secession, of new nation-states, new sovereignty. It is true that many of us have had less intense versions of that fantasy for decades, waxing and waning from regime to regime.

Now it's approaching heart-attack serious.

Trump is a daily embarrassment; worse, he gets to use the fruits of our labor to carry out disgusting policies, drop the Mother of All Bombs on Afghanistan, likely pay for a cruel and retro-minded border wall with Mexico, and possibly even wage nuclear war with North Korea. He seeks to gain more personal wealth on the backs of poor people daily, he insults the victims of anthropogenically worsened climate disasters in the Caribbean, and is simply insufferable in his tone-deaf narcissism, adolescent braggadocio, and trailer-trash personal insults.

One of my Vermont friends sent me notice that she has joined a group there calling themselves Most Likely to Secede. Some in the Upper Great Lakes region are reviving ideas of Miniwishigan, a nation-state of the US side of the Lake Superior basin. Increasingly, Native Americans are discussing stronger sovereignty, often in broad multi-tribal coalitions.

Here in the Pacific Northwest we refer to it as Cascadia. We even have our own flag, the beautiful Douglas Fir. We envision ourselves as Washington, Oregon, and northern California. We may need to reassess if eastern Washington and eastern Oregon prove to be Trump loyalists, essentially artifacts from the racist white homeland some wished for the Pacific Northwest from time to time. Maybe we are mostly coastal. And of course there are some serious Jeffersonians in a particular part of northern California, but they may or may not be amenable to a racially, religiously, ethnically diverse and eco-friendly vision for Cascadia. Let them secede in their own way or join us with forward thinking, not backward.

So, as you may imagine, we love the serious struggle by Catalonians for their independence. They clearly want it even more than Puerto Ricans or Scots, voting to remain part of the US and the UK respectively in 2017 and 2014. Puerto Rico voted to become a state and against independence; Scotland voted to remain a junior partner in the UK. I wonder if those peoples are regretting their votes?

Gandhi once told the British (paraphrase), We would rather govern ourselves poorly than have you rule us efficiently. This is a sentiment held by many people worldwide, though when the voting chips are down, the blandishments of the hegemon often prevail. I am not suggesting that if we held a vote in Cascadia we would do as well as Catalonia, but as Trump alienates and makes us all roll our eyes and shake our heads, perhaps the potential vote is growing closer.

Of course the other North American secession movements are irredentist First Nation and Native American struggles to regain complete nation-state sovereignty, not the limited "trust relationship" sovereignty of the tribes to the US government nor the more advanced but still unsatisfactory relationship of the Anishinaabeg to the government of Canada or the provincial government of Manitoba.

The UN is a hostile environment for most secession movements since it is a composition of some 194 nation-states in a world that the anthropologists tell us used to be at least 800 distinct nations with sovereignty and their own lands, a natural world turned violently into the colonial system driven by European colonial powers for half a millennium, with new national borders crunching peoples together or splitting them apart in ways they well remember and generally regret. The UN's members, thus, do not favor setting precedent by approving of secession when they often harbor groups who would love to rule themselves too.

Indeed, even the EU is not friendly to secession movements and said so publicly following the Catalan vote. This was a great blow and disappointment to the Catalonians who voted, some say in excess of 90 percent, for complete autonomy, independence, and separate nation-state status from Spain. Of course this picture is blotched by the Spanish police, who were ordered to prevent the independence vote, who attacked voters and injured nearly 900 of them, and who confiscated ballot boxes. How can accurate results obtain from such brutality, such a quash of indigenous democracy?

Are voters intimidated at times so severely that they simply stay away, thus compromising the results? It is hard to say with Puerto Rico, since the vote was not taken seriously by the US government and a mere 23 percent of eligible voters actually cast ballots. But in Catalonia the Spanish government was dead serious and hyper-involved, possibly deterring a hefty percentage of potential voters by beating those who showed up at the polls and by blatantly seizing ballot boxes. Still, some 42 percent of registered voters did so.

So we shall see, here and abroad. Trump's base includes many from states that attempted to secede and became the Confederacy, and the rest of us know it. More and more, we want less and less to do with him, with them, and possibly declaring our independence, our sovereignty, is the solution.

Necessity As the Mother of Prevention

This essay is meant to help those who are especially interested in the court proceedings of nonviolent resisters[1] to anthropogenic climate change. The intended readers would include nonviolent resisters, their lawyers, and those experts in strategic nonviolent civil resistance who may be asked to provide expert testimony validating the use of the necessity defense for resisters.

In general, the necessity defense is known as an affirmative defense, a narrative that contextualizes and validates the otherwise apparently illegal actions of the nonviolent resisters. The classic example is the passerby who sees the house on fire, the child at the window screaming for help, and who decides instantly to break into the burning house to save the youngster. That bystander committed trespass, destruction of property (the door), and possibly other offenses under various local or state laws and ordinances, but if an overzealous police officer arrests the intervening passerby and the prosecutor seeks conviction, a good lawyer will offer the necessity defense to secure a verdict of not guilty.

In the context of the law as experienced in the US Civil Rights movement, Dr. King wrote that they were sometimes breaking a good law for a good reason and sometimes they were breaking a bad law. The necessity defense is often explained as breaking a law to prevent a greater harm. Increasingly, a strand of thinking by legal experts is coming to the conclusion that the legal professionals should not be neutral but rather should be advocates for the environment, lending more skills and expertise to civil, criminal, and lawmaking efforts to protect our environmental commons.[2]

As to the requirements of employing the necessity defense[3], one is that a prosecutor will fight that, possibly with a pretrial motion to exclude it, usually on the grounds of salience; that is, the prosecutor will claim, often successfully, that the questions of guilt or no guilt are unrelated to all the myriad issues the defense wishes to bring to the court’s attention, such as global climate chaos in a case of nonviolent resistance to a fossil fuel facility. The prosecutor will normally urge the judge to direct the defense to the germane issue: did the defendant do the actions that resulted in legal charges or not? Most often the judge will rule for the prosecution and exclude the necessity defense, thus rendering the courtroom a more or less sterile environment excluding most of the truth required to have an honest examination and a fair trial.

In many cases excluding the necessity defense simply makes a travesty out of the legal system and clearly favors the perpetrators of what many refer to as actual eco-terrorism, that is, the corporations profiting from our massive consumption of fossil fuels. How can we begin to turn this around? Resisters wryly observe that former US Vice-President and 2007 Nobel Laureate Al Gore declared in September 2008 that, “If you’re a young person looking at the future of this planet, and looking at what is being done right now, and not done, I believe we have reached the stage where it is time for civil disobedience.”[4]

One piece of this attempt is dealing with one of the questions the defense lawyers must answer, which is, Did the defendant have any reasonable expectation of success when she violated the law in her attempt to change policies she claimed are harming others? In order to do so, the lawyer will often employ expert witnesses, first to establish that there is in fact imminent danger but it’s a remediable or at least mitigatable problem, e.g., a climate scientist to testify that anthropogenic climate change is beginning to wreak damage on a regional, national, and global scale, and then an expert in the history of nonviolent resistance and resultant changes in public policy, institutional policy, or corporate policy, especially as it directly involves slowing and stopping the drivers to climate change, e.g. coal and oil exploration, extraction, refinement, transport, burning and all the requisite enablers of these activities—e.g., financers, regulators.

The clear distinction between lawful protest and resistance resulting in arrest needs emphasis; nonviolent campaigns that do not involve acts of actual resistance are not contemplated here. They are almost always precursors to resistance, both for collectives and for individuals, which should be emphasized, of course, in court testimony by defendants themselves, a catalog of their legal activities that helped produce a condition of lack of perceived effective alternatives to nonviolent resistance, or a justifiable sense that, at the least, nonviolent resistance needed to be added to the prongs of a campaign’s multipronged approach to addressing the announced goal.

Part of what many nonviolent resisters are attempting to do is what researchers term “public pedagogy,”[5] i.e., using the drama of their resistance action to help educate the voting, purchasing, consuming public about the immediacy and severity of the problem. The “public curriculum” of nonviolent resistance, studied via discourse theory, can be a powerful augmentation to the outreach efforts of advocates for better policies to mitigate climate chaos. Judges and juries are helped by understanding this, and indeed become a component of exactly this. Or, as author activist Bill McKibben noted in Scientific American, “When 1,253 people got arrested in front of the White House, almost no one in the country had heard of this Keystone thing outside of Nebraska and a few other places along the pipeline route.”[6]

Other social movement researchers have termed civil resistance to fossil fuel consumption as “participatory democracy,” and have highlighted the frame proffered by movement spokespeople as risking arrest in response to “an emergency.”[7]

This essay does not examine the many cases in which causation or correlation of nonviolent resistance to policy change or preservation success has occurred in movements long preceding the movement to resist climate chaos. From Rosa Parks to draft board raids to nuclear power plant construction to nuclear disarmament to migrant rights to gay rights to women’s right to vote and to a much longer list of such actions, campaigns, and movements that included nonviolent civil resistance, the necessity defense is demonstrably salient and often highlighted further when its proffer is denied[8]. What we explore herein only relates to relatively recent nonviolent civil resistance to climate chaos—the hurricanes, forest fires, droughts, floods, rising seas, habitat destruction and other direct effects of burning fossil fuels so much for so long.

Select cases in which nonviolent resistance correlates to success in challenging drivers to climate change, e.g. fossil fuel industries

Trans Mountain pipeline expansion

First Nation and indigenous resistance[9] to the proposed expansion of the Kinder Morgan existing Trans Mountain pipeline from Edmonton, Calgary to Burnaby, British Columbia has likely halted it.[10] From tiny houses in BC[11] to chained nonviolent resisters at a Kinder Morgan Richmond, California facility, the investment climate was impacted severely. Investors were warned by financial analysts to avoid the project, which seems to have ended it.

Syracuse University divests from fossil fuel investments

In 2012 students at Syracuse University asked the Board of Trustees to order divestment from all fossil fuel industries. The BOT did not. Students persisted. Finally, in 2014 they escalated from education and protest to nonviolent resistance, sitting in for 18 days, at which point they won[12]. Many other such campaigns at colleges and universities have also succeeded similarly.

Seattle divests from Wells Fargo

This is a case of demonstrable cascading effects of nonviolent resistance in one place—the Standing Rock Sioux resisting the Dakota Access Pipeline (DAPL) in North Dakota—prompting policy change in another. In 2016, acting in overt solidarity with the nonviolent resistance to DAPL, the city of Seattle divested[13] from one of the largest financial backers of the pipeline, Wells Fargo, depriving the financial corporation of some $3 billion[14] in annual business with the city. This knock-on effect of nonviolent resistance has been studied vis-à-vis the Civil Rights movement[15] and in this case is not conjecture, but documented in the movement to resist climate chaos.

Kayaks v Royal Dutch Shell

In late July 2015 Greenpeace and affiliated groups confronted and blockaded[16] Royal Dutch Shell’s arctic icebreaking ship the MSV Fennica at the St. John’s bridge in Portland, Oregon, stalling the sailing by a couple of days but much more importantly gaining international recognition with a signature photogenic act of nonviolent resistance, including 13 colorful harnessed midair resisters hanging from the bridge and scores of kayaks in blockade across the Willamette River. Law enforcement eventually arrested resisters and cleared the river. The icebreaker continued north, ran into more kayackivists in Seattle, and made it to Alaska, only to leave, abandoning an estimated 15 billion barrels of light sweet crude oil. The resistance was not the only factor but it did seriously drive up the costs of oil exploration even as the global oil market slumped. As is the case most often, a combination of factors including nonviolent resistance[17] led to this change in corporate policy.

Break Free from Fossil Fuels Campaign

In spring 2017 Greenpeace called for the second Break Free from Fossil Fuels Campaign, resulting in some 170 actions globally and several victories from acts of nonviolent resistance. Some of those actions were specific to fossil fuel projects and others were more generalized nonviolent resistance to groups of industry planners, e.g. the nonviolent blockade in New Zealand[18].

Resisters halt coal-fired power plant proposal in England

Energy company Eon proposed a very large coal-burning electrical generating plant for the Kent, England region in late 2006 and opposition launched in 2007, beginning with protest and eventually escalating to nonviolent resistance, with arrests at several actions[19], including: sit-ins and occupations, as well as chaining themselves to machines, conveyor belts, and fences. The three-and-one-half-year campaign ended when the corporation withdrew its application for construction. The necessity defense was successfully utilized.[20]

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[1] This essay does not contemplate the spurious arguments that violent or armed resistance is on equal legal footing with nonviolent resistance, e.g., http://www.motherjones.com/politics/2017/09/cliven-bundys-lawyer-compares-his-armed-resistance-to-selma-marchers/

[2] Tom Lininger, Green Ethics for Lawyers, 57 B.C.L. Rev. 61 (2016), h p://lawdigitalcommons.bc.edu/bclr/vol57/iss1/3

[3] http://www.climatedisobedience.org/necessitydefense

[4] Temperature Gauge. (2009). Earth Island Journal, 23(4), 14.

[5] McGregor, Callum (2015). Direct climate action as public pedagogy: The cultural politics of the Camp for Climate Action. Environmental Politics, 24(3), 343-362. doi:10.1080/09644016.2015.1008230

[6] Bill McKibben: Actions speak louder than words. (2012). Bulletin of the Atomic Scientists, 68(2), 1-8. doi:10.1177/0096340212438383

[7] Evans, Geoff (2010). A Rising Tide: Linking local and global climate justice. Journal of Australian Political Economy, (66), 199-221.

[8] http://law.justia.com/cases/federal/appellate-courts/F2/741/1031/90708/

[9] https://www.ran.org/protesters_blockade_kinder_morgan_richmond_terminal_demanding_halt_to_trans_mountain_tar_sands_pipeline

[10] http://theenergymix.com/2017/09/24/trans-mountain-will-likely-be-scrapped-analyst-predicts/

[11] http://www.huffingtonpost.ca/2017/09/08/indigenous-activists-are-building-tiny-houses-to-protest-b-c-trans-mountain-pipeline_a_23202037/

[12] https://nvdatabase.swarthmore.edu/content/syracuse-university-students-win-fossil-fuel-divestment-2012-2014

[13] https://nvdatabase.swarthmore.edu/content/city-seattle-severs-financial-ties-wells-fargo-protest-funding-dakota-access-pipeline-2016-2

[14] http://www.latimes.com/nation/la-na-seattle-divests-from-wells-fargo-20170206-story.html

[15] http://thebulletin.org/scientists-world-unite11115

[16] http://www.oregonlive.com/portland/index.ssf/2015/07/greenpeace_protest_icebreaker.html

[17] https://www.wired.com/2015/09/shell-didnt-quit-alaska-goodness-heart/

[18] https://www.facebook.com/greenpeace.nz/videos/vb.11870725774/10155047004990775/?type=2&theater

[19] https://nvdatabase.swarthmore.edu/content/environmental-activists-prevent-construction-coal-fired-power-plant-kingsnorth-england-2007-

[20] van der Zee, Bibi (2010). Defence is the best form of attack. New Statesman, 139(5008), 36.