The Boston climate trial that might have been
Climate activist Marla Marcum and others were poised to test a 'necessity defense'
“THE IDEA THAT natural gas combats climate change is a sleight of hand,” writes Bill McKibben in a recent essay that pulls no punches. “No one wants to hear this,” he observes, not Republicans or the oil and gas industry, not Democrats (especially the Obama alums now working in the industry)—and not journalists, who “don’t much want to hear about methane because it muddies up the simple story line.” That is, no one wants to hear that the inevitable methane leakage from fracking wells and pipelines, together with the economic displacement of renewables, all but guarantees that gas is no better for the climate than coal—i.e., that it is not a “bridge fuel.” Or about the catastrophic consequences of pretending that it is.
On Tuesday, a climate civil-disobedience trial centered on resistance to one such fracked-gas pipeline, the West Roxbury Lateral, was all set to begin in Boston. It was highly anticipated among the climate informed—and not simply because the scenario McKibben describes is playing out in Massachusetts right now, with political, corporate, and media powers-that-be, including Red Sox/Boston Globe owner John Henry’s pipeline-friendly editorial page, promoting the carbon lobby’s fracked-gas con.
It was also highly anticipated because the 13 defendants going to trial for peacefully blocking construction of the high-pressure pipeline through West Roxbury in 2016—as part of a sustained campaign of nonviolent resistance in which nearly 200 were arrested over the course of a year—were poised to make history as they mounted a necessity defense before a jury of their peers. If District Court Judge Mary Ann Driscoll had instructed jurors to consider necessity (which looked like a possibility), it would have been the first time a jury in the United States received that instruction in a climate-related trial.
Not to be dissuaded, Judge Driscoll went ahead and found the defendants “not responsible” for the infractions—“by reason of necessity.” That decision in itself may be unprecedented, but it hardly carries the same weight as a jury’s verdict in a criminal trial
Climate change is getting its days in court more and more of late, all around the country, with kids suing the federal government, cities suing oil companies, and nonviolent protesters going to trial (and prison). This West Roxbury case was set to be Boston’s moment in the spotlight, and it still deserves attention.
That’s because these defendants—who included well-known climate activists Tim DeChristopher and Karenna Gore, along with Boston residents young and old—had an unusually strong necessity case to make. Not only did they have science on their side but every elected official from Massachusetts representing West Roxbury—with the notable exception of Republican governor and carbon-lobby friend Charlie Baker—actively opposed the pipeline. The Boston City Council voted unanimously against it. Mayor Marty Walsh’s office sued the Federal Energy Regulatory Commission (FERC) and is still in federal court fighting the permit. And yet the industry-captured FERC—one of whose commissioners, Obama appointee Cheryl LaFleur, is a former top executive of National Grid—rubber stamped the project in the face of all state and local opposition.
As if that’s not enough, in the course of a drawn-out discovery battle, the defendants’ pro-bono National Lawyers Guild attorneys forced pipeline company Spectra Energy (now Enbridge) to admit in an affidavit that it had no safety plan for the neighborhood in case of a catastrophe—even though this pipeline terminates in a residential neighborhood across the street from an active quarry where ground-shaking blasts are a regular occurrence.
When catastrophic threats are imminent, and all lawful measures have failed—despite the unanimous support of city government—because a reckless industry controls the levers of power, then nonviolent direct action would seem to be justified. Indeed, the situation might serve as an all-too-tangible metaphor, almost a microcosm, of the politics—the failure of democracy—at the center of the climate crisis itself.
As powerful as the case may have been, it would never have come even this far without the efforts of a young, principled outfit called the Climate Disobedience Center (with help from the even younger Climate Defense Project). Perhaps best known for the now famous Valve Turners action in October 2016, the story of how the center’s founders came together around the 2013 lobster boat blockade at Brayton Point, and subsequent trial in Fall River, is central to my book about the climate-justice movement.
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WEN STEPHENSON: So tell me about the climate trial that was set to start on March 27 in Boston. What was it all about?
MARLA MARCUM: We had 13 defendants heading toward a jury trial, in which they were charged with trespassing and disturbing the peace. They were among those who took action on four different days as part of a sustained grassroots campaign of nonviolent civil disobedience to block the construction of a high-pressure, fracked-gas pipeline in West Roxbury, a neighborhood of Boston. The West Roxbury pipeline is a lateral pipeline, not very long, a spur off of the existing Algonquin pipeline, and it’s part of an expansion, the goal of which is primarily to get gas to an export terminal in Goldboro, Nova Scotia, that’s under construction.
Over the course of a year, there were more than a thousand people in the streets on lots of different days. There were five Saturdays when dozens of people showed up to the construction site prepared to block construction, but we had announced those actions publicly, and on those days, the company decided not to work. There were arrestable actions on 32 different days, with 198 arrests. For about 60 percent of those people, it was their first arrest for an act of conscience. Only a few people were arrested more than once. On many other days there were lots of people in the streets, marching, holding vigil. In fact, every day that there was construction in the street there was at least one person holding vigil, with a sign, and other people would show up. Every day.
The community that was fighting this pipeline jumped through all the regulatory hoops. The Boston City Council unanimously opposed this pipeline. The city of Boston is still in federal court, having sued FERC, asking them to reconsider the permit. Congressman Lynch was out in the streets with us a number of times. Senator Markey and Senator Warren have been vocally opposed to the construction of this pipeline. The state senator and the state representative for the folks in West Roxbury were actively opposed. Every elected official representing West Roxbury—except for Charlie Baker, the governor—was in active, ongoing opposition to this pipeline for years, and it didn’t matter. The community was against it. It didn’t matter.
WS: And opponents have made the case that Boston doesn’t even need this pipeline, that there’s no shortage of capacity to meet demand?
MM: Right. Particularly if we fix the thousands of documented gas leaks.
WS: So, what happened? What do you make of the prosecutor’s decision to essentially drop the charges and avoid the trial?
The prosecutor has known for months that the judge was inclined to allow us to present expert witnesses as part of a necessity defense. We knew that they would be likely to drop the charges in order to avoid a political trial, especially because almost 200 other cases that were in many ways identical to these 13 had already been dropped altogether or reduced to civil infractions. We have reason to believe that the prosecution didn’t anticipate the quality, depth and breadth of our expert witness list, which included – in part – Bill McKibben, James Hansen, Boston City Councilor Michelle Wu, and Jamila Raqib, executive director of the Albert Einstein Institution and a scholar of the role of nonviolent struggle in acute conflicts worldwide.
WS: Let’s talk about the actions that were at the center of this case. One day of action in particular, in which protesters simulated a mass grave in the pipeline trench, was really dramatic. Where did that idea come from?
MM: Six of the defendants, including Tim DeChristopher and Karenna Gore, are from what we called the “mass graves action” on June 29, 2016. We felt that it represented the most powerful narrative to offer to a jury and the public about what really is happening when we build this infrastructure. Tim and I dreamed up the action together when we saw that they were digging mass graves in Pakistan in anticipation of a heat wave, and that the grave digger was saying it was a blessing to be able to do so in advance that year, because the year before they’d been caught without anywhere to put the bodies after a similar heat wave. So we recognized that there was really something important about that moment, that we were entering the era of anticipatory climate mass graves. And while genocide isn’t the right word for that, it’s the closest word we have.
So we recognized that when that grave in Pakistan was filled up—and it was—somebody would need to stand over it and try to make sense of it for the community, and that’s probably going to be a clergy person, probably an imam. And we wondered if we could ask our local clergy, who were already working on fighting this pipeline with us, to help us find some act of solidarity with their colleague all those miles away, who was going to have to be in that position. So what we came up with was an idea of “mass graves eulogies,” from the perspective of someone standing over a trench that will create more trenches like the one in Pakistan that got filled with people, wrapped in sheets, head to toe—it looks like a pipeline, if you look up the photos.
We recognized that trenches with pipelines like the one we were trying to disrupt, which we don’t need, one of the primary outcomes of the completion of that infrastructure was going to be to create more trenches like that one in Pakistan. And we need to take responsibility for this, we need to bear witness to the fact that it’s happening, and that we’ve entered a new era in human history. We need to figure out what it means to be responsible, caring human beings in that moment.
That day there were 23 arrested, and these six defendants are among eight people who decided that they were going to lay in the trench and that they would not climb out of the trench on a ladder when the police arrested them. They lay there as if their bodies were in the mass grave trench, and were put on stretchers and hoisted out. Eight took that action, six have continued all the way to trial. And they were all charged initially with resisting arrest, but the assistant DA, when he actually looked at it, decided the charge wasn’t warranted.
WS: You’ve written that this case was “a near-perfect opportunity for the strategy that the Climate Disobedience Center has been pursuing for years,” and that the argument that civil disobedience is necessary was more compelling here than in any other climate trial thus far. Why is that? Can you unpack that?
MM: Sure. To advance a necessity defense, there are certain criteria you have to meet, in order to convince a judge to let you present expert witnesses that cannot testify to the facts of what you actually did on the day of your action. Like, what is climate change and why is it such an important issue. That has happened once in this country, before a jury, so far. That was the Delta 5 trial in Washington State. And not only do you want the judge to let you present the expert witnesses, the judge then has to determine if you’ve met the criteria in order to then say to the jurors, “You are instructed to decide whether these people met these criteria, and you believe they took this action in order to prevent a greater harm. You can find them not guilty by reason of necessity.” A jury in the United States has never gotten that instruction in a climate trial. And it is our belief that this is an important part of the climate movement strategy, that we need to keep trying, and this was an opportunity to get farther than anybody has gotten yet.
And so the reason it was a near-perfect situation is that you need to say, first, that all of the reasonable legal alternatives have been tried. I don’t know of a situation where people have done actions like this that would get them to a trial—physically blocked infrastructure—together with the support of the community and the unanimous support of their elected representation, at all levels of government, to try to make it stop. The reasonable legal alternatives were tried, and they failed.
You also have to show that the harm you caused is less than the harm you’re preventing. We feel the mass graves action tells that story pretty well. And you need to show that the harm was imminent. It’s pretty clear that this judge was concerned about the safety of this pipeline and this community, convinced that it’s a potential imminent harm, and she wanted to hear arguments about that. We also hoped that she would agree to hear arguments about climate, that even though the world isn’t going to collapse from climate change tomorrow because this pipeline got built today, the completion and putting into service of this project commits us to more destruction as soon as it is operating.
WS: You’ve also talked about the importance of a “sustained resistance campaign,” which grows and escalates. Why is that so important?
MM: Right. The fourth criterion, this is my favorite one, is that you had to have some reasonable expectation that your action could prevent the harm that you’re trying to prevent. And because this judge combined these cases, so that it included defendants who took action on four different dates, it was even easier for us to be able to say, while these people didn’t think they were going to get this pipeline stopped by themselves on this day, they understood that people had taken action before them and that people were already prepared to take action after them, and they understood themselves to be part of a sustained campaign of nonviolent civil disobedience, building power to try to prevent the construction of this pipeline. This argument hasn’t come before a judge in a climate necessity case, and there’s not one on the horizon that I know of, intending to make this argument of the viability of a sustained campaign of resistance.
So this was an opportunity to make that argument, and to raise the profile of the idea of a sustained campaign—bringing people into the resistance in an ongoing way that slows down construction, costs the company money, and demonstrates that there are a broad range of people who are going to say no to this.
Because when you’ve got a pipeline being built down a busy city street, where people are commuting every day, it was just as important, maybe more important, that there were people standing out there every day, even when there weren’t actions being taken, for a year, holding signs—showing that people oppose this who are like the people in the cars driving by, saying there’s something violent going on right under your nose that you’ve allowed yourself not to see. And it was so important that when people took action, there were people from the community standing on the sidewalks cheering for them.
WS: This is like Social Movements 101, right? In other words, when you’re in the courtroom making the argument that you thought you had a reasonable chance of preventing this harm, you knew that you weren’t alone, that you had a grassroots movement behind you—that you were part of a social movement.
MM: Right, because these people were out there every day. A sustained campaign of action, of disruption, makes it possible for us to transform the idea of what an “action” is. Civil disobedience like this doesn’t happen in a vacuum, though prosecutors often treat it that way. The ones who are getting arrested, or at least risking arrest, aren’t the only people doing the action. All of the people who are there, who supported you to be there, who are standing on the sidewalk and cheering for you—not taking a risk themselves, except maybe not looking quite as respectable as their neighbors thought they were—and sitting around waiting for you to get released, and going to court with you, all of those people are part of the action. They’re all important. They’re all part of the work to disrupt the thing so we can build something else.
I mean, our hashtag was #StandWithMary. Mary Boyle, a neighborhood resident who turned 76 during the campaign, was the person who stood outside every day for a year, except for something like six days. She was never arrested, but Mary was the heart and soul of what we were doing. She is a symbol for so many people who did the day-to-day work of the campaign and put their hearts and souls into this fight. Mary was just as important in this campaign as anybody who was going to trial.
WS: How does the CDC’s work fit into the climate movement going forward?
MM: One of the things we’ve learned is that this kind of radical transformation in people—the willingness to say “no” to things we know aren’t right, helping people to come to the point that they are ready to put their bodies in the way of the thing that they know is going to cause more death and destruction—more people are going to get there if they have these communities of support. So we’re putting a lot of our time and energy into building small groups that we’re calling “praxis groups.” The launch of the first two are underway in southern Maine and northern Vermont. We hope to launch a few in Massachusetts this year.
I think part of our activist culture on the left does, perhaps, a little bit too much valorizing. Of course we want to take care of people who are called to take risks, and who have to pay the price. We’ve got one Valve Turner in prison right now, and we need to support him and not forget about him. And we need to honor him, and other people who take risks, by continuing to support people who feel able to step into those roles, showing up for them and supporting them.And to me, that moves away from a “hero” culture—not imagining that everybody’s taking the same kind of risk, but understanding that we’re building a community of resistance. If we want to see mass resistance, we’re going to have to support each other, and not just imagine that rugged individuals are going to walk out of the woods, or out of their houses, and into the street, and decide that they can stand up and fight the world on their own. Because we’re trying to transform systems. Individuals don’t do that. Groups of people, social movements, transform systems.
Wen Stephenson is the author of What We’re Fighting for Now Is Each Other: Dispatches From the Front Lines of Climate Justice (2015) and a frequent contributor to The Nation. A former editor at The Atlantic and The Boston Globe, where he edited the Sunday Ideas section, he has also written for Slate, The New York Times, The Boston Phoenix, and many other publications. Follow him on Twitter @wenstephenson