Climate Necessity Defense for Minnesotan Valve Turners

Unlike the Michael Foster and other co-defendants is North Dakota, the Minnesotan Valve-Turners Emily Johnston and Annette Klapstein get their chance to present the Climate Necessity Defense. From TownHall.com (Hat tip Science Matters)

Klapstein, a retired lawyer, said they know of one case in which a judge allowed evidence about climate change but then told the jury to disregard it.

“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,” she said.

As a retired attorney, she perhaps should have read the criteria before responding.

In an order Friday, Clearwater County District Judge Robert Tiffany said the four defendants must clear a high legal bar.

In Minnesota, Tiffany wrote, a defendant asserting a necessity defense “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.

The judge said it applies “only in emergency situations where the peril is instant, overwhelming, and leaves no alternative but the conduct in question.

This appears fairly clear. The Judge lays down four criteria to be met within an overriding one of emergency situations with no alternative. It is the legal equivalent of demanding that the positive impacts of an action greatly exceed the harms in very specific, very short-term, circumstances. Further, it is up to the defense to demonstrate that the circumstances apply, convincing the court in the face of cross-examinations.

There are a number of areas where I believe climate activists actions not only fails to meet these criteria, but does not even get anywhere close.

The timing issue

The emergency situations criteria are pretty immediate. An example is a police officer shooting dead a rampaging terrorist rather than maiming and performing an arrest. Another example might be destroying the car keys of someone who is drunk and intent on driving. The very short time scales of seconds or minutes exclude options that would take months or years to implement.  There are examples of where such an emergency situation does not apply to climate change policies.

If prominent climate activist Prince Charles was correct in saying in October 2009 that we have less than 100 months to save the planet, it would not have been considered an instant peril. With three months to go until the deadline, even that appears to be somewhat alarmist in the context of a lack of increase of signals of impending catastrophic consequences.

Another source is from the pinnacle of the climate establishment. The IPCC AR5 Synthesis Report gave a very rough guide to how much CO2 (or equivalent greenhouse gases) could be emitted to limit warming to less than 2°C. From 2012 it was about 1000 GtCO2e. This flowing is part of a presentation to summarize the IPCC AR5 Synthesis Report of 2014. Slide 33 of 35.

A more recent source is Miller et al 2017 Nature GeoScience. They estimate that 240 GtC (880 GtCO2e) from now will be needed to reach 1.5°C of warming. On the IPCC’s estimate then with slightly over 50GtCO2e of emissions per annum, the 2°C of warming would be reached sometime before 2032, when the climate experts are now saying the lower 1.5°C barrier will be reached sometime before 2035. Whichever you use as the barrier for breaching of dangerous climate change, that level will not be reached anytime soon according to the climate experts. There is plenty of time for a few more, tense, annual meetings with representatives of 195 nations to pontificate about mitigation policies.

So even if extreme climate alarmism is true, the expert opinion on policy strongly implies that the defendants were not “in danger of imminent physical harm”.

Finally, in 2008 the climate necessity defense was supported by James Hansen in a couple of British court cases. The detailed document prepared as written testimony for the Ratcliffe Nottingham trial is here and a 2011 commentary on the two cases by Hansen is here. As the supposed emergency in global emissions have not appeared in eight years between the testimony and the felony why should it be still considered a pressing problem? James Hansen, sometimes referred to as the Father of Climate Change after his 1988 Congressional Testimony pushed Global Warming to the fore of the political agenda, is likely to be the key witness in the necessity defence. He would have been the key witness at the trial of Micheal Foster in North Dakota last month if the necessity defense had been allowed. After the Foster Trial, Hansen wrote a long article, including arguments that will likely be presented at the Johnston and Klapstein Trail.

Indivisibility Issues

Many people in the United States believe that abortion is murder. Suppose a group managed to close down a busy abortion clinic by constant blockades and intimidation, throwing a number of people of work. An argument could be made that some of the women will not get abortions elsewhere, but will instead give birth to a child. The necessity defense criteria could, therefore, be operable. But with respect to global warming the evidence shows (and the science agrees) that it does not matter where in the world fossil fuels are burnt, the generated CO2 will be dispersed affecting the whole atmosphere. Otherwise, Eastern USA and Eastern China would have much higher concentrations of CO2 than in Africa, Antarctica or over the oceans that cover 70% of the earth’s surface.  Neither does that CO2 leave the atmosphere quickly but could remain in the atmosphere for many decades or even centuries. Therefore, the marginal impact delaying the transportation of one type of fossil fuel in one country for a few hours will have no significant impact on generations of people yet to come. As a rough estimate, the combined actions of the valve-turners (of which Micheal Foster on the Keystone Pipeline was by far the biggest contribution), was to delay the transportation of less than a million barrels of oil. That is to delay the transportation of around 1% of the daily global output of about 92 million barrels. A million barrels (140,000 tonnes) will produce around 400,000 tonnes of CO2. That is 0.4 million tonnes or 0.0004 billion tonnes. This 0.0004 GtCO2 is 0.00004% of the 1000 GtCO2e (million million) of emissions by the IPCC to breach the dangerous 2°C of warming barrier. The impact of Valve-Turners Emily Johnston and Annette Klapstein is somewhat less than this. The difference between “the harm that would have resulted from obeying the law” and “the harm actually caused by breaking the law” is infinitesimally small.

Local Harms, Wider Benefits

There is another set of harms to be considered.  That is the immediate costs of property damage and business disruption from the activists’ actions, along with the time and expense of law enforcement. Even if the action could be shown to have benefits exceeding the costs, for the actual persons or entities targeted that position will be reversed. So, hypothetically, if the benefits of stopping a few hundred thousand tonnes of emissions are even $100,000,000, and the immediate costs are just $1,000,000, the benefits are across the planet decades or centuries in the future and shared by tens of billions of people, whilst the costs are immediate and disproportionately borne by very few victims that the activists select. In reality, the benefits are likely far less, and the full costs somewhat more.

The catalyst effect of the action

As this was an act of climate activism, there was probably no intention that this act would stop climate change. Rather, that the act could serve as a catalyst for action to constrain emissions. It could serve as a wake-up call to policy-makers. A year later it is possible to see any impacts.

In the United States, less than a month after the valve turners did their deeds Donald Trump was elected President and subsequently has begun to rescind climate change policies. There appears to have been no impact on the Presidential elections. If it had, then criminal acts would have influenced the election, something that would have undermined the democratic process.

Another justification could be one of a catalyst for many more criminal actions. Again, there seems to be no surge in climate activism, whether through legal or illegal means does not seem to have happened. Further, lawyers might caution against using the catalyst argument in court to defend criminal acts.

So the catalyst defense (which may not be admissible under Judge Tiffany’s criteria) doesn’t seem to have worked out.

Non-exhaustion of legal policy initiatives

Judge Tiffany’s final specification was

leaves no alternative but the conduct in question.

Was there no alternative? There are two basic criteria necessary, but not sufficient, for the necessity defense to justify an otherwise illegal activity. First, that legal alternatives have been exhausted and second, that the illegal alternative has at least an expectation of being remotely effective. As already stated, the consensus believes that to prevent catastrophic climate change means permanently eliminating global greenhouse gas emissions. With respect to the burning of fossil fuels (about two-thirds of global GHG emissions), this is on the twin fronts of reducing global emissions to near zero and ensuring permanently leaving fossil fuels in the ground.

Possibilities for closing the policy gap

The global efforts to reduce global GHG emissions culminated in the Paris Agreement, written at the end of December 2015 and signed by most countries. The Adoption of the Paris Agreement proposal; Section II, Point 17 notes gives an indication of the gap between the aggregate impact of all the vague policy initiatives and the desired policy goal.

17. Notes with concern that the estimated aggregate greenhouse gas emission levels in 2025 and 2030 resulting from the intended nationally determined contributions do not fall within least-cost 2˚C scenarios but rather lead to a projected level of 55 gigatonnes in 2030, and also notes that much greater emission reduction efforts will be required than those associated with the intended nationally determined contributions in order to hold the increase in the global average temperature to below 2˚C above pre-industrial levels by reducing emissions to 40 gigatonnes or to 1.5˚C above pre-industrial levels by reducing to a level to be identified in the special report referred to in paragraph 21 below;

In a post last month I adapted a graphic produced by the UNFCCC in the run-up to Paris COP21 to show the gap between actual policy proposals and the Millar et al 2017 estimates to prevent 1.5˚C of warming being breached.

The aggregate impact of all policy ambitions if fully implemented fall a long way short of the targets. The majority is not due to the United States, or other Western Countries, failing to reduce emissions at a fast enough rate, but the developing countries increasing their emissions, rather than cutting emissions. When compared with  protests against President Trump’s policies (in a country with less than one-eighth of global emissions and a falling share of the total) there are no mass protests outside the embassies of Asian, Middle Eastern, African or South American countries, with over 80% if the global population and which collectively account for 100% of the growth in emissions between 1990 and 2012. Yet these countries have no expressed intention of reducing their emissions commensurate with the policy pathways. Criminal acts in the USA will do nothing to change this.

Leaving Fossil Fuels in the Ground

Arguments for targeting the output of Canadian tar sands include

(a) per unit of energy, it creates higher emissions than oil from say, Saudi Arabia.

(b) there are vast unproven reserves of oil in Canada that may exceed the current global proven reserves.

These aspects I will deal with in depth in a follow-up post. However, the two statements above are true. There are, however, wider policy aspects. Shutting down some of the global production of oil (and raising the price of oil) could increase the usage of coal instead. Push the price high enough and there will generate economic incentives to convert coal to liquids, a process that involves the generation of a number of times the CO2 emissions as from generating energy direct from oil alone.

The wider aspect is whether shutting down some proven reserves make available much less than the 1000 GtCO2e of emissions that would supposedly cause dangerous climate change. McGlade and Ekins 2015 (The geographical distribution of fossil fuels unused when limiting global warming to 2°C) estimate that the proven global reserves around 2900 GtCO2e. There is no clear breakdown by country, so I input their values of CO2 per unit into the BP’s estimates of global reserves of oil, gas and coal, coming up with a similar 2800 GtCO2e. These represent roughly 50 years of oil and gas supply and 120 years of coal supply at current usage rates. Taking into account other GHG emissions, to achieve the emissions target around 75% of proven reserves and 100% of any future discoveries must be left in the ground. I have produced a chart of the countries where these proven resources lie, measured in terms of CO2 produced from burning for energy.

McGlade and Ekins further estimate there are unproven but likely reserves of oil, gas and coal represent a further 8000 GtCO2e of emissions. Shutting down the Tar Sands permanently will not stop production of fossil fuels elsewhere in the world, particularly in the Middle East, Russia and other Asian countries.

Conclusion

There are a number of reasons that on their own ought to fail the necessity defense criteria laid down by Clearwater County District Judge Robert Tiffany last month. 

First, the climate experts at the UNIPCC, and the policy-promotors at the UNFCCC do not believe there is an imminent emergency. They estimate the threshold to dangerous climate change will not be crossed for over a decade.

Second, the cause of dangerous climate change is meant to the rise in global greenhouse levels, caused by global human greenhouse gas emissions. Shutting down fossil fuel emissions will not stop the harms in that area.

Third, the harms inflicted on the victims of the action are local, whereas any benefits in reduced emissions are global. But there is no evidence of the activists realizing this by campaigning for policy changes in other countries on anything like the level in the USA. The activist’s actions single out a particular source and are thus discriminatory.

Fourth, although the various actions on the same day stopped a vast amount of oil being moved, it was tiny in relation to oil the fossil being produced. Further, oil is only a minority source of all global greenhouse gas emissions.

Fifth, there is a large recognized global policy gap between forecast emissions if current policy proposals are fully enacted and the desired emissions pathways commensurate with 1.5°C or 2°C of warming. To meet these global pathways all countries must participate, but the evidence is that countries with over 80% of the global population have no expressed intention to get anywhere close to these policy criteria. Further, meeting the policy criteria would mean that the vast majority of proven reserves of fossil fuels are left in the group, along with any unproven reserves. Given the geographical dispersion of the proven reserves, this is not going to happen.

The principal theme that undermines the climate necessity defense is that the marginal impact of the action of shutting down a pipeline (or even a number of pipelines) is infinitesimally small compared to the required solution. For this reason, the necessity defense is still not valid even if (contrary to all the research to date) it can be proved beyond reasonable doubt that catastrophic climate changes will happen without rapid reductions in global emissions.

Kevin Marshall

 

Valve Turner Micheal Foster’s Climate Necessity Defense

The Climate Necessity Defence for criminal acts to impede the lawful business of the fossil fuel industry cannot be justified. The acts will never of themselves have a significant impact in constraining global greenhouse emissions. In any event, there will always be more than sufficient proven fossil fuel reserves in countries out of the reach of any activist action, or even Government-backed action, to constrain aggregate cumulative fossil fuel emissions to anywhere near the levels commensurate with constraining temperature to 2°C of warming. What it does do is impose immediate harms on the actual victims of the crimes, and harms on the countries in which the crimes are committed. Some of the harms are from benefitting non-policy countries who produce fossil fuels. The conviction last week of climate activist Michael Foster is a clear case study.

 

The New York Times reports (hattip GWPF) on the conviction by the North Dakota Supreme Court of Seattle resident Michael Foster.

Foster took part in effort on Oct. 11, 2016, to draw attention to climate change by turning off valves on five pipelines that bring Canadian oil south. Foster targeted the Keystone Pipeline in North Dakota. Other activists targeted pipelines in Minnesota, Montana and Washington state.

A jury in North Dakota’s Pembina County on Friday convicted Foster after a weeklong trial of criminal mischief, criminal trespass and conspiracy. He faces up to 21 years in prison when he’s sentenced Jan. 18. The man who filmed his protest action, Samuel Jessup of Winooski, Vermont, was convicted of conspiracy and faces up to 11 years.

What I found interesting was the next sentence.

Foster had hoped to use a legal tactic known as the climate necessity defense — justifying a crime by arguing that it prevented a greater harm from happening.

The Climate Disobedience Center in its article for activists on the climate necessity defense says

The basic idea behind the defense — also known as a “choice of evils,” “competing harms,” or “justification” defense — is that the impacts of climate change are so serious that breaking the law is necessary to avert them.

Foster had his action filmed, shown from 2.07 here.

Keystone Pipeline. North Dakota. I’m Michael Foster. In order to preserve life as we know it and civilization, give us a fair chance and our kids a fair chance, I’m taking this action as a citizen. I am duty bound.

This was a significant action. The video quotes Reuters news agency.

Was this action “preserving life as we know it“? In shutting down the pipeline, (along with four pipelines others in the coordinated action) 590,000 barrels of oil failed to be transported from Canada to the USA that morning. It was merely delayed. If the pipelines are working at full capacity it would maybe have been transported by rail instead. Or more produced in the USA. Or more imported from the Middle East. But suppose that those 590,000 barrels (83000 tonnes) had been left in the ground, never to be extracted, rather than delaying production. What is the marginal difference that it would make climate change?

From the BP Statistical Review of World Energy 2016 (full report), I find that global oil production in 2015 was around 92 million barrels per day, or 4362 million tonnes in the full year. Global production would have been 0.6% lower on Oct. 11, 2016 or 0.002% lower in the full year. Yet there is plenty of the stuff in the ground. Proven global reserves are around 50.7 years of global production. Leaving 590,000 barrels in the ground will reduce proven reserves by around 0.000038%. That is less than one part in a million of proven oil reserves. Yet in the last few years, proven reserves have been increasing, as extraction techniques keep improving. This despite production climbing as well. 2015 production was 21% higher than in 2000 and 56% higher than in 1985. Proven reserves in 2015 were 30% higher than in 2000 and 112% higher than in 1985.

I have divided up those 50.7 years of reserves by major areas.

The effect of turning off the oil pipeline is posturing unless it shuts down oil production in Canada and the USA. But that would still leave over 40 years of proven reserves elsewhere. Are Russia and Middle Eastern countries going to shut down their production because of the criminal acts of a few climate activists in the USA?

But oil is not the only major fossil fuel. Production of coal in 2015 was 3830 Million tonnes of oil equivalent, 88% of oil production. Proven coal reserves are 123 years of current production. Further, if oil prices rise to the levels seen over the last few years, it will become economic to convert more coal to liquids, a process which consumes four to five times the CO2 of burning oil.

Are China, Russia, India, Australia, Ukraine, Indonesia, South Africa and many other countries going to shut down their production because of the criminal acts of a few climate activists in the USA?

The third major fossil fuel is gas. Production in 2015 was 3200 million tonnes of oil equivalent, 73% of oil production. Proven reserves are equivalent to 52.8 years of current production levels.

The reserves are slightly more centralized than for oil or coal. Like with oil, a large part of available reserves are concentrated in Russia and the Middle East.

Leaving 590,000 barrels in the ground would reduce proven reserves of fossil fuels by around one part in ten million.

The 50+ years of proven reserves of oil and gas, and 120+ years of proven reserves of coal needs to be put into a policy context. The IPCC AR5 Synthesis Report gave a very rough guide to how much CO2 (or equivalent greenhouse gases) could be emitted to limit warming to less than 2°C. From 2012 it was 1000 GtCO2e.

With emissions in 2011 at around 50 GtCO2e, that gave 20 years. From next year that will be less than 15 years. The recent paper “Emission budgets and pathways consistent with limiting warming to 1.5C” (hereafter Millar et. al 2017) reevaluated the figures, with the 1.5°C not being breached for a further 20 years. Whatever way you look at the figures, most of the proven fossil fuels in the world will have to be left in the ground. That requires the agreement of Saudi Arabia, Russia, Iran, Iraq, Qatar, Kuwait, Turkmenistan, China, India, Venezuela, alongside USA, Canada, Australia and a large number of other countries.

Further, there can be no more extractions of fossil fuels from unproven reserves, which will likely exceed the proven reserves.

The efforts of Micheal Foster and his mates could incite further criminal acts. But massive lawbreaking throughout the United States, it would still be insufficient in the USA to significantly dent the production and distribution of fossil fuels in the USA. Even if that happened, there are plenty of other countries who would willingly meet the existing demand. All that the action is likely to do is push up the costs of production and distribution in the USA, harming the US economy and the futures of people involved in the fossil fuel industries and energy-intensive industries.

It is the aspect of failing to make a significant marginal difference through the action – that is reducing global greenhouse gas emissions – than renders the climate necessity defense void. Even if large numbers of other actions are inspired by Foster and others, it would still be insufficient to get anywhere close to the constraint in emissions to constrain warming to 1.5°C or 2°C. On a larger scale, even if all major Western economies shut down all fossil fuel production and consumption immediately, it would merely delay by a few years the cumulative aggregate emissions from 2012 onwards exceeding 1000 GtCO2e.

It gets worse. A particular case must be decided on the damage caused to the victims of the crime. In this case the owners of the pipeline, the employees of the business, the customers who do not get their oil, etc. If there are beneficiaries, it is the billions of people in generations to come. The marginal difference to the victims of the action is tangible and has happened. The marginal difference to the beneficiaries is imperceptible and even then based on belief in what amount to nothing more than pseudo-scientific prophecies. But given that a shut-down of production in the USA is likely to be met by increased production elsewhere even these future dispersed and speculated benefits are unlikely to accrue.

More broadly, if specific people need to have their immediate interests sacrificed for the greater good, surely that is the function of Government, not some wayward activists? In that way the harms could be more equitably distributed. With random acts of criminality, the harms are more likely to be based on the prejudices on the activists.

Summary

The Climate Necessity Defence is an invalid justification for the criminal actions of Michael Foster and others in shutting down the oil pipelines from Canada into the USA. The marginal impact on reducing greenhouse gas emissions by the action, if they were not made up by increased production elsewhere, is about one part in ten million. But given that most of the global proven fossil fuel reserves are concentrated in a small number of countries – many of whom have no commitment to reduce emissions, let alone leave the source of major revenues in the ground – the opportunity of producing more is likely to be taken up. Further, the harms the activist’s action is immediate, very definite and concentrated, whilst the benefits of reduced climate change impacts from reduced emissions are speculative and dispersed over tens of billions of people. 

Kevin Marshall