On Wednesday, the trial of climate activist Ken Ward—who faced felony charges of burglary and sabotage after shutting off a tar sands pipeline between Canada and the United States—ended in a hung jury in Skagit County Superior Court in Washington state. This neutral-sounding result was in fact a stunning victory for an activist who admitted that he’d broken the letter of the law to protect the climate, and who was barred from calling witnesses on his own behalf to establish a defense of necessity. It was also a possible harbinger of things to come for a new generation of activists desperate for strategies outside the mainstream.
With the rise of Donald Trump, the gap between the political system’s ostensible ideals and its reality yawns ever wider. Few dissidents still believe that social progress is best achieved by running political campaigns or lobbying legislators. Instead, for those who are willing and able, direct action—interventions that strike at the root of an issue and often involve breaking the law—is the last, best option for tackling problems that our government can’t handle. Combined with principled legal defense, this method can create a parallel political arena for the opposition.
On Oct. 11, 2016, Ward cut a lock on a chain-link fence and turned a valve to stop the flow of tar sands oil through a Kinder Morgan pipeline in Anacortes, Washington. Along with valve-turners in Montana, North Dakota, and Minnesota—who together temporarily stopped the flow of heavily polluting tar sands fuel into the United States—he was responding to a call to action from the Standing Rock camp in North Dakota, and accompanied his protest with a request that the president extend the pipeline shutdown permanently. Ward, who spent decades as a Big Green leader and organizer fighting climate change, had turned to civil disobedience after finding traditional legal avenues blocked by the influence of fossil fuel money and the corruption of legislators and regulators.
Heading into trial, Ward planned to present a so-called climate necessity defense. (My organization, the Climate Defense Project, provided legal support to the defense team.) He was ready to call experts in climate science, energy economics, and political theory to testify about the present and future consequences of climate change and the failure of government actors to address it. This legal strategy—which has been attempted several times and builds off a long history of political necessity defenses in the United States—is part of a broader climate movement effort to build power through a combination of direct action, courtroom activism, and grassroots organizing (PDF).
Prior to trial, the judge ruled that Ward would be barred from presenting any evidence related to necessity. Labeling the existence and causes of climate change matters of “tremendous controversy”—a statement that flies in the face of years of scientific consensus—the judge left Ward no option but to testify on his own behalf about his beliefs and motivations.
That testimony, bare bones as it was, apparently did the trick. With at least one juror refusing to convict Ward, the case ended in a mistrial, meaning that the prosecution has the option of trying the charges again or adding new ones. For now, though, Ward walks free, his justification having won the day.
The failure of the prosecution to convince 12 jurors of Ward’s guilt beyond a reasonable doubt is clearly a big victory for the climate movement, which had already turned to civil disobedience before the climate science-denying Trump administration made a mockery of efforts to address the climate crisis through electoral politics and inside-the-Beltway politicking. But for the growing ranks of political activists who find the normal channels of democratic deliberation hopeless, it’s also a case study in how to build power from below.
The jury’s refusal to convict Ward ratified the basic premise of civil disobedience: When the government fails to protect the planet, defend rights, or check corporate power, individuals must take matters into their own hands. It’s no crime to conscientiously break the letter of the law to serve to the public good.
This model of political action is radical in two senses. It’s radical because it challenges the assumptions that our institutions are representative and that our laws serve the public good. Action must be taken outside the system to realize the system’s democratic pretensions. It’s radical, too, because it’s a strategy that’s been used in this country since before the Revolution. When juries refused to convict newspaper editors who had criticized colonial governors and abolitionists who harbored fugitive slaves, they ratified risky political action in defiance of established power. The same holds true for juries that acquit pipeline protesters or people sheltering immigrants. And by emphasizing a mismatch between the law and the will of the people, such campaigns often force reform of the challenged policy or institution.
It’s important to note that such a strategy is politically neutral: that is, it can be used to serve divergent goals. Under Jim Crow, Southern juries regularly acquitted defendants who violently enforced racists social codes, and last year a jury acquitted the Bundy crew that staged an armed occupation of the Malheur Refuge to protest the federal government’s environmental stewardship.
There’s also a limit to who can participate in this risky behavior. People of color, those with disabilities, and undocumented and poor people are unlikely to trust their fate to a criminal justice system that has shown scant ability to give them a fair shake. And some issues, like voting reform, do not easily lend themselves to the practice of direct action.
Despite those limitations, actions like Ward’s can form an important part of the civil resistance that’s rising to challenge Trump and his allies. When it works well, the political jury trial is an exercise in democracy, allowing a small group of public representatives to pass judgment on what’s good for society. With the apparatus of the law blocking social progress, activists have the opportunity to turn a small part of the legal system to their favor and to ratify an oppositional position from within otherwise oppressive institutions.
Ward was able to convince at least part of a rural Washington jury that turning off tar sands pipelines is good for society and worth a minor disruption to corporate property rights. In the coming months and years, there will be many more questions of pressing public importance upon which juries will be asked to pass judgment. It’s up to the swelling ranks of activists to decide what those issues will be, and how they’ll be forced into the courtroom.
Ted Hamilton is a co-founder of the Climate Defense Project and a freelance writer.