Climate Direct Action

A Seattle activist who attempted to shut down the Keystone XL Pipeline and was sentenced to at least one year in prison this week was hailed as a “hero” for his 2016 attack.

Dr. James Hansen, former director of the U.S. NASA Goddard Space Institute and climate change activist, said after the sentencing that, “Michael Foster isn’t a criminal; he’s a hero.”

Foster, along with fellow “valve-turner” Samuel Jessup, who livestreamed the pair’s actions, were found guilty of conspiracy to commit criminal mischief for the October 2016 incident. Law enforcement alleged Foster and Jessup disrupted TransCanada’s Keystone XL Pipeline by interfering with emergency shut-off valves as a sign of solidarity for ongoing Dakota Access Pipeline protests that fall. Jessup was also found guilty of a misdemeanor criminal conspiracy charge, while Foster added felony criminal mischief and a criminal trespass misdemeanor.

Foster faces up to three years in prison, while Jessup will serve two years of supervised probation. Foster had faced as many as 21 years in prison.

“It doesn’t matter if I’m sitting in jail. What matters is stopping the pollution,” Foster said after his sentencing, defending his actions as civil disobedience. “If other people don’t take action, mine makes no difference. And if they don’t, the planet comes apart at the seams. The only way what I did matters is if people are stopping the poison.”

Foster had questioned his own actions, however, after hearing the verdict in October.

“It’s been a year, and pollution is worse today than the day I turned the Keystone valve shut,” said Foster. “Based on that alone, I wonder how effective it was. If people don’t respond quickly (to climate change), it won’t matter.”

Foster and Jessup were members of a group called Climate Direct Action, which launched a coordinated effort in late 2016 to sabotage pipelines.

Valve Turners from Steve Liptay on Vimeo.

In addition to praising Foster, Hansen had traveled to North Dakota for the trial to testify as a climate expert as part of the defense, but the judge ruled his testimony inadmissible. Dubbed the “father of global awareness of climate change,” Hansen has said the planet is entering “the age of consequences” for using fossil fuels and also been seen publicly endorsing the effort by the anti-fossil fuel activist group Our Children’s Trust to bring “children’s” climate lawsuits across the country, helping to find young people to act as plaintiffs. As Western Wire reported in December, Hansen attended oral arguments before the 9th Circuit Court of Appeals in Oregon’s version of the lawsuit, backed by deep-pocketed foundations like the Rockefeller Brothers Fund.

At trial, Foster and Jessup’s defense attorneys mounted a “necessity defense,” contending that “the dangers of climate change” necessitated their action. A necessity defense justifies a defendant’s criminal actions by arguing that the person be acquitted as their actions were necessary to prevent a greater harm. The judge in the case rejected the tactic.

Judge Laurie Fontaine said the defense’s attempt to call expert witnesses would create a discussion of climate change inadmissible due to her ruling on the necessity defense.

“This court case should not become a forum on the issue of climate change for experts,” Fontaine wrote. “The issues in this case are whether these defendants willfully and/or recklessly violated the law as the culpability relates to each charge.”

But a separate Climate Direct Action anti-pipeline effort in Minnesota that led to the arrest of two activists, Emily Johnston and Annette Klapstein, will be permitted to use the necessity defense at trial.

“It’s not just a question of a looming threat, it’s a disaster happening right now all over the world,” said Johnston.

“It looks like we’re going to be able to bring in all our experts and present our evidence of how dire climate change is, so we’re pretty excited about that,” Klapstein, a retired attorney, said.

Johnston and Klapstein have admitted they coordinated with Climate Direct Action to shut down targeted pipelines.

The presiding judge in the case, Clearwater County District Judge Robert Tiffany, wrote that the defendants “must show that the harm that would have resulted from obeying the law would have significantly exceeded the harm actually caused by breaking the law, there was no legal alternative to breaking the law, the defendant was in danger of imminent physical harm, and there was a direct causal connection between breaking the law and preventing the harm.”

Their trial awaits a state appeals court ruling on their ability to exercise the necessity defense. A total of 11 anti-pipeline activists affiliated with Climate Direct Action were arrested in Minnesota, Montana, North Dakota, and Washington.

Two others convicted of felonies in the pipeline attacks, Ken Ward and Leonard Higgins, were barred from using the necessity defense at trial. Ward has been sentenced to 30 days of community service, while Higgins will receive his sentence in March.

Foster, Johnston, Klapstein, Ward, and Higgins are featured activists on Climate Direct Action’s #ShutItDown website.

“The only way we can put a stop to it is by putting our own bodies on the line. All other avenues have been exhausted at this point,” Klapstein wrote about the “valve-turner” strategy. “If people are not acting as though there is an emergency, people don’t believe that there is an emergency,” Higgins added. All of the activists argue in favor of the “symbolic value of the act.”