On Wednesday, a Skagit County jury found climate activist Ken Ward guilty of one of the charges brought against him for closing an emergency shutoff valve on a tar sands pipeline near Anacortes last October. While the jury deadlocked on the question of “sabotage,” they ultimately determined that Ward was guilty of second-degree burglary, a charge that carries up to a decade in prison, and/or up to $20,000 in fines.
Chances are vanishingly small, given state sentencing guidelines, that he will be sent to prison for a full decade. At most, because he has no prior felony convictions, he may spend a year — or possibly two. A sentencing hearing has been scheduled for June 22, and Ward’s legal team is prepared to appeal the decision immediately.
It was Ward’s second trial. In January, a different jury was unable to reach any verdict at all — a surprising, temporary win for the defense team. In both trials, Ward’s attorneys were not allowed to use the “necessity defense,” a legal principle that says a crime can be necessary if it’s done to prevent greater harm (in this case, the greater harm of climate change). Jurors were instructed only to see the facts of the case and to hear Ward’s arguments about his own motivation, which stems from decades of working on climate policy via legal means.
So, in a way, Wednesday’s verdict doesn’t come as a great surprise. “Lightning doesn’t normally strike twice in the same place,” says Lauren Regan, Ward’s attorney and founder and executive director of the Civil Liberties Defense Center. Ward, too, never thought that a jury would ultimately refuse to convict him on at least one of the counts. “My expectation going into this all along,” he says, “was that unless we were able to include the necessity defense, it was highly unlikely for a jury to find me anything other than guilty.”
But despite the mixed results of this verdict — and the necessity defense having been deemed impermissible — Regan says she expects the needle to continue to move on this, especially in Washington state.
“Washington really has decent law with regard to the necessity defense,” she says, noting the half-win of the Delta 5 trial in January 2016, which involved blocking oil-train tracks. “Given all the climate activism that is likely to come about in this region because of all the refineries and oil and gas pipelines,” she says, “… if we cannot establish good necessity defense law here, who knows where we may be able to get a better outcome?” (Ward’s fellow valve-turners face upcoming trials in Minnesota, Montana, and North Dakota.)
She adds that Ward is a great poster child for the effort, as “a significant part of the necessity defense is that you’ve tried the legal means and determined them to be ineffective.” A former deputy executive director for Greenpeace USA and former president of the National Environmental Law Center, Ward says breaking the law for the climate now is “a result of everything else failing.”
He feels optimistic about an appeal, too, because when he spoke with some of the jurors after the verdict, “what was quite clear [was] if we’d had any opportunity to offer a necessity defense, I think they would have found me innocent, or at least a hung jury. They describe the whole group as being quite convinced by even the small amount of climate information that I was able to get across.”
That information included a map of Skagit County layered with predicted climate-related sea level rise. Three of the jurors’ homes were under water on the map. Regan says she noticed one juror who seemed to be weeping during her closing argument.
Notably, during jury selection, the vast majority of the 72 jurors polled on their climate views said they believed that the climate was always changing — or, as President Donald Trump is famous for suggesting, that climate change is some kind of “hoax.”
The most common response, Regan says, was “I never really gave it much thought at all.”
In the wake of Trump’s decision to pull out of the Paris climate agreement, this kind of citizen action is something we may see more of. “When you have a Congress that can’t pass a [climate] bill to save its life, and you’ve got a President pulling out of the Paris climate accord,” says Regan, “there’s never been a more stark example of government… being an ineffective vehicle” for tackling climate change.
The withdrawal “spawned a Pandora’s box of local reaction” from public officials and citizens alike, agrees Anthony Rogers-Wright, U.S. Coordinator for The Leap, a climate blog co-run by activist and author Naomi Klein (her new book, No Is Not Enough, will be released on June 13). “I think we’re gonna see a lot more nonviolent direct action” like Ward’s, he says, particularly at the local level. “That’s where the fight is gonna be waged.”
Ward and Rogers-Wright both believe that the U.S. pulling out of the Paris accord is arguably — albeit paradoxically — a boon for the climate movement. It’s a case Ward makes in an op-ed published shortly before last week’s official announcement: The Paris accord did not go far enough, and it was aspirational, rather than binding, thus the exit presents an opportunity to “give up wishful, incremental thinking,” he writes, and “disrupt our complacency and strengthen the most vigorous avenues of climate action left to us, which are through the courts and direct citizen action.”
Ward says he thinks “the divestment movement is fabulous,” as is the work still being done in the courts for the Our Children’s Trust lawsuits (wherein kid plaintiffs sue the government over inaction on climate). “The effort for municipalities to take up the challenge of Paris and in themselves move off of fossil fuels is great. I just hope that all of that is done with a far more clarion call for the state of the problem” than has previously been done.
“The reason that people don’t do that is they think that if we do, that we turn a lot of people off,” he adds, “which is absolutely true. But at this point, we should abandon the idea that we’re trying to solve climate change through moderate, majority actions.” Instead, it should be a smaller coalition that “acts emphatically, based on the truth. That’s how we make change happen.”