An activist in Montana was sentenced on Tuesday in a case that has become both a touchstone for industry-friendly legislators pushing to increase penalties for pipeline protest and a measure of the U.S. legal system’s ability to recognize the emergency presented by climate change.
On October 11, 2016, while the Dakota Access pipeline protests were in full force, climate activists approached above-ground valve sites on five tar sands pipelines in Minnesota, Montana, North Dakota, and Washington state. After calling the pipeline companies to give warning, they turned the valve wheels in a coordinated attempt to stop the flow of tar sands oil.
Tuesday’s sentencing hearing tested a Montana court’s willingness to apply the severe penalties already available for use against pipeline protesters. For halting the flow of oil through Enbridge’s Express pipeline for several hours, Leonard Higgins, a 66-year-old retired information technology manager for the state of Oregon, faced a maximum sentence of 10 years in prison and a $50,000 fine for charges of misdemeanor trespass and felony criminal mischief. Higgins was sentenced to three years’ probation and $3,755 in restitution to the pipeline company.
“I’m relieved and actually a bit bewildered. It’s unexpected to me. I came very much prepared and expecting to do some jail time at least,” Higgins told The Intercept. “This is a case where both in terms of the severity of the charges and the large amount of claimed damages, I think they were using it to chill the possibility that others might do similar protest.”
Enbridge had initially claimed more than $200,000 in losses, a figure later reduced to $25,630, including $16,000 worth of replacement chains to secure valves along the pipeline against future tampering.
“The courts and the juries are not hammering individuals in the way these corporations would like to see, so they attempt to use the restitution process to grossly inflate their damage numbers with hope that threatening the citizen with $200,000 might chill others from committing similar acts,” said Lauren Regan, Higgins’s attorney.
“Enbridge respects the court’s decision,” said company spokesperson Michael Barnes. “It is our intention to donate any court-ordered payment in this case to local area first responders. … We believe it’s important to support the people who every day focus on the safety and wellbeing of the community and the environment.”
Although the sentence is lenient in light of the possible penalties Higgins faced, it does not represent a full win for the activists. Higgins’s legal team had hoped Judge Daniel Boucher would allow them to argue that, given the severity of the climate threat, he had no choice but to act — a strategy known as a necessity defense. But Boucher said that since Higgins appeared to fear harm to his children and grandchildren, rather than an imminent threat to his own life, the defense could not apply. In his denial, Boucher wrote, “The energy policy of the United States is not on trial, nor will this court allow Higgins to attempt to put it on trial.”
Since a goal of the valve action was to set legal precedent for future climate protesters, Higgins’s legal team plans to appeal the denial, demanding a retrial. The move would not open the door to a more severe sentence. Judges assigned to valve turner cases in North Dakota and Washington also rejected the necessity defense, and the activists’ legal teams are also appealing.
The valve turners’ best chance lies in Minnesota, where a judge has made the unusual decision to allow the necessity defense to be used at trial. Emily Johnston and Annette Klapstein are facing felonies in the state for shutting down Enbridge Lines 4 and 67. Steve Liptay, who filmed their actions, and Ben Joldersma, who provided additional support, also face charges. The four activists have to prove 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.” Enbridge is appealing the judge’s decision.
Higgins said that if he had any regret about his effort to disrupt the Montana pipeline, it would be that he failed to anticipate that those filming would face charges alongside those turning the valves. Reed Ingalls, a 23-year-old student at Evergreen College, who livestreamed Higgins’s action, still faces trespassing and criminal mischief charges. “I wish we had not been so naïve as to think the journalists and folks doing the livestreaming would be protected by the First Amendment and would not be arrested,” Higgins said. Sam Jessup, a 32-year-old carpenter from Vermont, recently received a suspended two-year sentence, to be served as probation, for livestreaming the valve action on the Keystone pipeline in North Dakota.
“The act itself was out of a sense of desperation that we don’t have time for incremental change,” Higgins told The Intercept. “It’s possible we already squandered the chance we had. We’re walking right along the edge of the cliff.”
While the valve turners have asked the justice system to recognize their actions as a rational response to a climate emergency, legislators, law enforcement, and oil and gas industry operatives have used the shutdowns as justification to frame environmental activists as terrorists.
The valve turners were recently mentioned in a letter sent by legislators to Jeff Sessions, asking if pipeline activists could be charged under terrorism laws. Meanwhile, the American Legislative Exchange Council cited the valve turners in urging states to pass the “Criminal Infrastructure Protection Act,” a new model bill that would create harsher penalties for attempts, even if unsuccessful, to inhibit the operation of infrastructure like pipelines. Laws similar to the model have been introduced in Oklahoma, Pennsylvania, Iowa, Ohio, and Wyoming.
It’s a theme that surfaced in another valve turner’s case in North Dakota. Michael Foster, a 53-year-old mental health counselor and father of two from Seattle, was sentenced to one year imprisonment and two years of probation, for halting the flow of oil through the Keystone pipeline for eight hours. He had faced a maximum sentence of more than 26 years.
In his closing statement, prosecutor Jonathan Byers compared Foster to Ted Kaczynski, the Unabomber, who justified murdering three people and injuring 24 with a rambling 35,000-word manifesto. “He thought that the industrialization of the U.S. and of modern society was going to create a disaster, so, because of his belief in his cause, he decided to do some of these things. It actually resulted in people’s death,” Byers said.
Byers then moved into a bizarre reflection on Sharia, or Islamic law. “Will we allow people who have a belief in Sharia law to allow people to commit honor killings because they believe that it will save them — is that what our society is going to be that we’re going to redraw the line to allow killing of even your own children?” he asked. Sharia says nothing about honor killings and does not endorse murder. In the U.S., it’s commonly invoked to stoke fears of immigrants and Muslims.
The valve turners, of course, neither murdered nor physically harmed anyone. And their motivations largely came from climate data. In Foster’s case, the judge declined a defense request to allow climate scientist James Hansen to testify. Hansen, director of the Climate Science, Awareness, and Solutions program at Columbia University, wrote an influential New York Times op-ed in 2012 stating that if Canada’s tar sands were fully exploited, “It will be game over for the planet.”
Hansen’s prepared testimony had described some of the analysis that the valve turners argue made their actions justifiable. “We are indeed in an emergency situation — even though the most severe climatic consequences have only just begun to be visited on human and natural systems,” he noted.
“If fossil fuel emissions are not systematically and rapidly abated, then young persons and future generations will confront what reasonably only can be described as, at best, an inhospitable future,” Hansen wrote. “That future may be marked by rising seas, coastal city functionality loss, mass migrations, resource wars, food shortages, heat waves, mega-storms, soil depletion and desiccation, freshwater shortage, public health system collapse, and the extinction of increasing numbers of species.”
Foster and Higgins, each interviewed before their sentencing, said that over years of climate activism, they had become disillusioned with government institutions’ inability to adequately address climate change. Both got involved in climate organizing late in life, Foster in his 40s and Higgins in his 50s. They each became involved in an array of climate organizing activities around the Pacific Northwest, from lobbying legislators to cut carbon emissions to providing volunteer support for a lawsuit that a group of kids brought against the state of Washington for failure to sufficiently protect them from the threat of climate change.
But although many of the campaigns saw big wins — the children’s lawsuit forced Washington to move more quickly on its greenhouse gas emissions reductions, for example — Foster could see they were not translating into the energy transition scientists were calling for. “I watched the system refuse to change,” he said. “There was no institution that was responsive to the emergency.”
Higgins said he increasingly saw a special responsibility for people like him to participate in civil disobedience. “Our niche is that we are privileged, middle-class, older white people who we look at as having the biggest obligation. We’ve benefited the most, and we will continue to be protected from the worst effects until the very end when it will probably be too late,” he said.
A May 2017 report co-written by the Department of Homeland Security and several state intelligence fusion centers, obtained by The Intercept via a public information request, invoked the valve turners’ actions as an example of the kind of tactics law enforcement and emergency management officials might expect to see “environmental extremists” carry out across the U.S. in the coming year.
“It’s fascinating to me that the Department of Justice and the executive branch’s lawyers and other people want to get involved and try and paint us as organized crime or domestic terrorists bent on destroying national security,” Foster said. Climate change “will certainly destroy our national security if it’s allowed to continue operating.”
But Foster didn’t deny that part of the point was to inspire people. “We hoped that other people would take similar actions all over the place,” he said. “I have to say, after over a year since our action, it’s starting to feel it was a failure, because it’s still the biggest coordinated action in our history and we don’t have time.”
Foster is currently incarcerated at the Missouri River Correctional Facility, a minimum-security prison known as the “farm.” Its most desirable and private living quarters are located inside a portable unit that once housed workers in a “man camp” in the Bakken oil patch, a center of the U.S. fossil fuels boom.
The day before his sentencing hearing last month, Foster told The Intercept, “For this one moment, maybe I’m standing on the right side of history. If there’s going to be future historians, and they’re going to be writing anything, chances are it’s because we succeeded.”