Environmental Justice Bill

Last week, the ABA Section of Civil Rights and Social Justice organized a program titled, “Environmental Justice in the 21st Century: Threats and Opportunities,” featuring a keynote address by U.S. Senator Cory Booker at the ABA’s Washington, D.C. office. The event was co-sponsored by the Environmental Law Institute, Beveridge & Diamond, and ABA Section on Environment, Energy, and Resources. The intent behind the program was to motivate the next generation of environmental justice advocates.

On October 24, U.S. Senator Cory Booker (D-NJ) and U.S. Rep. Raul Ruiz, M.D. (D-CA) introduced a landmark piece of legislation to eliminate environmental injustice. The Environmental Justice Act of 2017 (“EJA”) requires federal agencies to address environmental justice through agency actions and permitting decisions, and strengthens legal protections against environmental injustice for communities of color, low-income communities, and indigenous communities. The bill is the culmination of a months-long process of working with dozens of grassroots organizations across the country to craft a comprehensive bill that strengthens environmental justice protections for vulnerable communities.

This program also featured a panel discussion on Senator Booker’s recent landmark environmental justice legislation and the various ways it addresses critical issues for vulnerable communities nationwide, especially communities of color, in light of historical, ongoing challenges as well as new ones posed during this presidential administration. Other topics addressed included: changes at the Office of Environmental Justice of the EPA; recent appointments at EPA and the changing role of science in decision-making; and challenges to community efforts in support of environmental protection for clean air, water, and land via threats to citizen suits and enforcement.

Senator Booker was joined on the panel by Mustafa Ali, Vice President of Climate, Environmental Justice & Community Revitalization, for the Hip Hop Caucus, and former head of the EPA’s Office of Environmental Justice; Patrice Simms, Vice President of Litigation for EarthJustice, and former attorney at the U.S. Environmental Protection Agency, U.S. Department of Justice – Environment and Natural Resources Division, and Natural Resources Defense Council; and moderator, Randy Hayman, Principal, of Beveridge & Diamond, P.C., and former General Counsel of DC Water.

Should you or your institution be interested in partnering with ABA CRSJ on future programs, please let me know, and we would be glad to colloborate.


Necessity Defense in “Valve Turners” #ShutItDown Case

Valve Turner Appeals Court Refusal to Allow the Climate Necessity Defense

A precedent-setting case in Minnesota is setting the stage for an epic legal fight for climate change. Common Dreams reported earlier about “Victory for ‘Valve Turners’ as Judge Allows ‘Necessity Defense’ for Climate Trial.”

In a decision that is being called “groundbreaking” and “precedent-setting,” a district court judge in Minnesota has ruled that he will allow oil pipeline protesters to present a “necessity defense” for charges related to a multi-state action by climate activists last October [2016].

In his decision [in October 2017]. Judge Robert Tiffany ruled that four activists who participated in the #ShutItDown action—in which pipelines across five states were temporarily disabled, halting the flow of tar sands oil from Canada into the U.S.—may present scientists and other expert witnesses to explain the immediate threat of climate change to justify their action.

“The ruling is only the third time a judge in the United States has allowed for such a defense in a climate case,” InsideClimateNews reports. “The first case, in Massachusetts in 2014, did not go to trial after the prosecutor dropped the charges. A judge allowed the necessity defense in a Washington State case in 2016 but then instructed jurors they could not acquit on necessity.”

Today I joined a group of 100 law professors, who filed an amicus brief supporting the right to use the necessity defense.  Four protesters shut off valves for a pipeline that transports tar sands crude oil from Canada to the United States.

This appeal has a simple focus: can a jury see and hear evidence? The trial
judge ruled, after a hearing, that the jury could see and hear evidence supporting the defense of necessity at trial. The prosecution seeks to preclude the jury from doing so. Whether the jury can or cannot see and hear evidence — particularly necessity evidence in criminal cases — strikes at the core of constitutional law, public policy, and democracy itself.

The four people charged in this matter engaged in a civil disobedience action to highlight the global emergency caused by the failure to address climate change. Climate change, caused by the emission of greenhouse gases and the combustion of fossil fuels in particular, is already driving widespread destruction, loss of life and property, and business disruption. Scientists warn that continued fossil fuel emissions will drive the world into a state of uncontrollable heating, jeopardizing the habitability of Earth for humans. The world now faces climate tipping points that, if passed, would trigger cascading effects leading to catastrophe. Tar sands-derived oil is among the most emissions-intensive forms of fossil fuel energy.

Civil disobedience has a long tradition in our country. Indeed, highlighting injustice by engaging in nonviolent civil disobedience is an important part of the way this country was founded.

The ability of nonviolent civil disobedience and resulting criminal trials to strengthen democratic and constitutional values and institutions is well established. However, that ability is diminished when defendants are denied the benefit of jury deliberation on the key issues presented by the case — here, the  necessity or lack of necessity of the defendants’ actions as a means of galvanizing action to address the climate emergency.

Full brief is available here

The Civil Liberties Defense Center reports an appeal was filed last month in the Washington Court of Appeals challenging a Superior Court ruling that denied climate activists the ability to present a necessity defense to a jury.

Ken Ward, a climate activist from Corbett, Oregon, was charged with sabotage and burglary after an October 2016 protest in which he and four other activists temporarily blocked the flow of tar sands oil from Canada into the United States. Mr. Ward, a veteran environmentalist who for years pursued legal avenues to address climate change before turning to civil disobedience, testified during the two-day trial that his actions were intended to block the passage of harmful fuels into the United States and to inspire individuals and political leaders to act to avert catastrophic global warming.

Mr. Ward admitted that he entered a Kinder Morgan pipeline facility near Anacortes, Washington on October 11, 2016, and turned a valve to shut off the flow of tar sands oil from Canada. At the same time, other activists turned pipeline valves in Montana, North Dakota, and Minnesota.