Appeals court allows necessity defense in pipeline protest

Four protesters can present an unusual "necessity defense" against criminal charges stemming from efforts to shut down two Enbridge Energy oil pipelines, the Minnesota Court of Appeals ruled Monday.

Emily Johnston and Annette Klapstein acknowledge that they turned the emergency shut-off valves on two pipelines on Oct. 11, 2016, in Clearwater County of northwestern Minnesota. It was part of a coordinated action by Climate Direct Action activists to shut down five pipelines that carry tar sands crude from Canada to the Unites States in Minnesota, North Dakota, Montana and Washington state. A total of 11 activists were charged.

But the two Seattle-area women, as well as two defendants who filmed them, are the only ones who have been given permission to present a full necessity defense. They want to tell jurors that the threat of climate change from Canadian tar sands crude — which contains more climate-damaging carbon than other forms of oil — is so imminent that they were justified and had no legal alternatives. They plan to call expert witnesses who will back them up.

A three-judge appeals panel ruled 2-1 Monday that the prosecutor has failed to show that allowing the necessity defense will have a "critical impact" on the outcome of the protesters' trials. The decision was labeled "unpublished," which means it sets no binding precedent for other cases.

"The Minnesota Court of Appeals has upheld our right to present the facts on the ongoing climate catastrophe, caused largely by the fossil fuel industry, to a Minnesota jury," Klapstein said in a statement. "As a retired attorney, I am encouraged to see that courts across the country seem increasingly willing to allow the necessity defense in climate cases."

Appeals Judge Francis Connolly dissented.

"This case is about whether respondents have committed the crimes of damage to property and trespass. It is not about global warming," he wrote.

Johnston and Klapstein face felony charges of criminal damage to critical public service facilities and other counts. Prosecutors have said the most likely penalty is up to a year in jail. The two other defendants face a separate trial on lesser charges. Attorneys expect the judge to set trial dates for sometime this summer.

While District Judge Robert Tiffany allowed the necessity defense, he also warned in a ruling in October that the four must clear a high legal bar to succeed. Another hurdle is that the jury will come from a sparsely populated county where Enbridge is a major employer and the largest property taxpayer.

Clearwater County Attorney Alan Rogalla was out of the office Monday and did not immediately reply to a message asking whether he planned a further appeal.

Trials of other pipeline protesters in other states have yielded mixed results. Most have not been allowed to present full necessity defenses. One activist convicted last month in Montana was ordered to pay $3,775 in restitution but avoided jail time. A North Dakota case resulted in a one-year prison sentence for one activist in February. Appeals are pending in North Dakota and Washington state, and a trial is pending in Montana.