Saturday, January 23, 2016


Trial by Necessity: a Big Win for the Delta 5

In my post of Jan 18, I wondered what the verdict would be in the Delta 5 case. Five defendants had blocked a train in 2014 carrying fracked gas, stripmined coal, and fracked Bakken oil from North Dakota. Well, the verdict is in, and the defendants were acquitted of “obstruction” and any financial losses accruing from their action. Four of them were convicted on the charge of trespassing, for which they had to pay fines, as well as court fees.

What is significant about this trial is that the judge, Anthony Howard, allowed a necessity defense to be argued for the first time in such a case (the trial of Jay Ohara resulted in an implicit honoring of this rationale for blocking a coal tanker in Massachusetts, but there were no legal arguments to this effect). However, when it was time to charge the jury, he explicitly told them not to consider this argument in their deliberations, because there was no precedent to do so. One juror said later that if he had allowed them to consider that line of defense, there would have been an outright acquittal.

Another juror thanked the defendants for the “education” they had received by listening to the witnesses for the defense. A defendant quipped, “Welcome to the movement.” Jurors and defendants hugged at the conclusion of the proceedings. It was a heartwarming victory, as well as a toe in the door opening to the necessity defense. Setting that precedent, which Judge Howard, though sympathetic, was reluctant to do, would link the climate movement and the insurgents who are its leading wave directly with the Justinian Code on res communes. That would be a huge step forward for enforcing the Paris accord and climate realism in constitutional governments. And with James Hansen now directly advising China, all of the major players in the unfolding endgame of the climate drama would be involved.

(Hansen told me via e-mail several years ago that he had given up on our wishy-washy government to focus upon advising China, a more direct process than having to make continual end-runs around a reactionary Republican Congress. He was responding to my post on the philosopher-king cutting the Gordian climate knot.)

Building on this victory, is calling for a global wave of civil disobedience aimed at keeping fossil fuels in the ground this May in a campaign called “Break Free.” In the first four days of the appeal, 12,000 people signed up worldwide, including this blogger. Read about the campaign, and please discern what your part may be in helping us Break Free, fulfilling Obama's 2008 campaign pledge, something we all now know he could have never accomplished alone - or with virtually any Congress. Look around you - the fossil fools are everywhere, but you need to choose your targets strategically and wisely.  The time is ripe. Pluck the berry of opportunity while ye can. Let's talk about this!

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