Editor’s note 1/14/16: See KING 5’s video coverage of the trial, including testimony from Eric de Place, here.
Update 1/15/16: The Delta 5 have been declared not guilty on the obstruction of train charge, meaning there can be no claim of financial harm for restitution. They have been declared guilty only of trespass. The states asks for no jail time and a suspended sentence of 90 days. Learn more here.
On September 2, 2014, five Northwest climate protection activists took a stand for the Thin Green Line. In the early morning hours, Mike LaPointe, Patrick Mazza, Jackie Minchew, Liz Spoerri, and Abby Brockway—the so-called “Delta 5”—entered BNSF’s Delta Railyard in Everett, Washington, where they erected a blockade, locked themselves to it, and obstructed an oil train for eight hours. They were arrested that afternoon and spent the night in Snohomish County Jail. This week, they are standing trial for criminal trespass and blocking a train.
As Abby Brockway told KUOW, “We felt we had to trespass on those who are trespassing against us because we saw no other thing we could do to stop what is happening to this generation that will come after us. The thing I’m most afraid of is telling my daughter years later, that I didn’t try hard enough to protect her future.”
Standing trial in Lynnwood, Washington, this week, the Delta 5 hope to mount a “necessity defense.” Although not acknowledged by federal law, a necessity defense is a recognized element in common law (and the statutory laws of most states) that applies to particular situations in which breaking the law is more advantageous to society than obeying it—trespassing in order to rescue someone from a burning building, for example. The legal team representing the defendants explains that they will argue that: 1) there was verifiable imminent danger; 2) they had a reasonable expectation of efficacy in taking action; and 3) they, and the climate movement more generally, had pursued every available legal alternative. A necessity defense will also allow lawyers to call expert witnesses, including rail expert Fred Millar, physician Frank James, and a BNSF whistle-blower.
I will be called, probably on Wednesday, as a “lay witness,” meaning that my role will be to establish the facts of the case. In particular, I will be presenting Sightline’s research establishing that post-2012 fossil fuel export proposals in the Northwest would be capable of delivering at least 822 million metric tons of carbon dioxide pollution embedded in coal, oil, and natural gas—more than five times the carbon pollution capacity of the Keystone XL pipeline. I will also demonstrate that Sightline research finds that recent oil train projects in the Northwest would be expansive enough to ship one million barrels of oil per day in 100 combustible oil trains per week.
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After hearing testimony, the court will decide whether a necessity defense justifies the actions of the Delta 5. If not, they will face criminal penalties. Yet the activists stand resolved. As Brockway wrote in a December 2015 open letter, “As a mother, a Presbyterian, and a lover of democracy… I am prepared to face the legal consequences of my actions. The cost is worth paying. As far as obedience is concerned, I choose obedience to the future generations.”
For more on the Delta 5 trial, you can find good coverage at DeSmogBlog and Democracy Now. You can also read or listen to a sermon that Brockway gave on Sunday, January 10, at Woodland Park Presbyterian Church in Seattle.
You can find details of the trial here.