Montana coal protesters argue necessity defense

Anti-coal protesters conducted a sit-in last summer at the Montana Capitol building. (Coal Export Action / Rae Breaux)

Anti-coal protesters conducted a sit-in last summer at the Montana Capitol building. (Coal Export Action / Rae Breaux)

This spring, Montanans will have a chance to follow up on the largest climate-related act of civil disobedience in Montana history, which saw 23 arrests over five days, as hundreds gathered at the State Capitol in opposition to Big Coal. A subgroup of the protesters — myself included — are now taking our case to court, arguing that the threat of climate change necessitates peaceful civil disobedience. If we are successful, it could set an encouraging precedent for nonviolent protest in Montana and elsewhere.

This campaign started on Aug. 13, 2012, when seven of us sat down in the State Capitol rotunda and refused to leave at closing time, an act of protest against elected officials’ leasing of state lands to the coal industry. We were particularly concerned about coal mine-for-export projects — like the massive Otter Creek proposal in Southeast Montana — which would add to climate change while exposing communities throughout the Pacific Northwest to coal dust and diesel pollution. The mine itself would damage or destroy precious aquifers and agricultural land in eastern Montana.

For many Montanans, the fight over coal is reminiscent of battles that pitted the politically powerful copper industry against communities over a century ago. “Montana has a long, sad history of resource extraction followed by pollution,” said David Jones, a professional fishing guide from Hamilton, Mont., who was arrested on the second day of the August protest. “Coal is a poison much like the arsenic that remains in our rivers a century after the copper barons made their short term profit and left a mess for future generations.”

These late 19th- and early 20th-century copper barons bought up newspapers in attempts to sway public opinion and bought out lawmakers to secure political favors. But they sparked a public backlash that led to statewide political reforms, and the toxic mess left by copper mining and smelting eventually helped inspire state environmental laws. Unions fought the copper barons with strikes and other forms of direct action, and today direct action seems no less important in the fight against Big Coal.

On the first day of the Capitol sit-in, none of us knew quite what to expect. We only knew we were the first of what would hopefully be five waves of people participating in civil disobedience that week. We also knew that we could spend the night in jail or pay $340 in bail, and that our actions would likely draw positive attention to our cause. For several of us, it was our first time getting arrested. But we had the support of hundreds of others who came to rally in solidarity with the Capitol sit-in throughout the week. Any apprehension we felt was eased by the belief that we were doing everything in our power to stop dirty energy extraction.

The next day, having been charged with trespass, we walked out of jail to find that our civil disobedience had made news headlines across Montana. The only question was whether our movement had the tenacity to keep up the rotunda action all week. We weren’t disappointed: Over the next four days, 16 more people joined the sit-in and were proudly arrested. They represented a range of ages and backgrounds, from college students, to working people, to retired grandparents.

Linda Kenoyer being arrested during the third day of sit-ins at the Montana Capitol. (Coal Export Action / Rae Breaux)

Linda Kenoyer being arrested during the third day of sit-ins at the Montana Capitol. (Coal Export Action / Rae Breaux)

“When respectable old ladies and men are willing to be arrested, it makes the issue stand out as something we are willing to risk a lot for,” said Linda Kenoyer, a grandmother from Livingston, Mont., who was arrested on the third day. “It makes people pay attention to what we are saying, and jostles them out of their complacency.”

Around the country, more climate activists are adopting this logic and turning to civil disobedience. Last summer saw a series of direct actions against coal mining, fracking and tar sands. A blockade of the southern leg of the Keystone XL tar sands pipeline has continued through winter, and is still spawning tree-sits and other direct actions in Texas. More of this kind of long-term action is needed to stop fossil fuel industries in their tracks. And in Montana, though the Capitol sit-in finished months ago, we’re harnessing the court system to keep coal exports in the spotlight.

At a November 14 post-arrest court hearing, 16 of us who were arrested in August announced our intent to seek a jury trial. The others, many of whom live far from the state capital of Helena and are tied up by work and school, understandably decided to take a plea bargain. At the hearing, our lawyers announced plans for a necessity defense, arguing that when it comes to stopping coal exports, civil disobedience is justified.

Such a defense is based on the common sense idea that breaking the law is justified if you do it to prevent a greater harm. For example, in most places you won’t be convicted of a crime for breaking down a door if you do it to rescue someone from a burning house. With the world approaching dangerous climate tipping-points, and after decades of failed efforts to curb climate change through traditional politics, many climate activists now believe civil disobedience is as much a moral imperative as breaking into a burning building.

After all, Montana environmentalists have tried for years to stop the Otter Creek Mine and are running out of options. Groups like the Northern Plains Resource Council, the Sierra Club and the Blue Skies Campaign have turned out members to public hearings, submitted official comments and asked elected officials to consider the health and climate impacts of coal exports. Yet in 2010, state officials granted Arch Coal, the second largest coal exporter in the U.S., a preliminary lease to Otter Creek. Federal permit-givers, like the Army Corps of Engineers, have turned a blind eye to region-wide effects of coal export projects.

“The legal system did not provide us with an adequate path to express our legitimate concerns,” said Janet Jordan, who participated in the first day of civil disobedience in August. Jordan traveled to Helena from Olympia, Wash., a town that will see increased coal train traffic if export proposals go through. “There was no justice for those of us affected,” she said, referring to why civil disobedience is necessary.

This is not the first time climate activists have used the necessity defense. In a high profile 2008 case, six U.K. protesters were cleared of wrongdoing after scaling a coal-fired power plant and painting an anti-coal message on the smokestack. NASA climate scientist James Hansen testified on behalf of the protesters, explaining that the coal plant could be responsible for the extinction of 400 species, as well as significant damage to coastal cities due to rising sea levels. The jury in that case agreed with the necessity argument and acquitted the six protesters.

Not all U.S. courts, however, have been as quick to recognize the validity of a necessity defense. In 2009, student-activist-turned-folk-hero Tim DeChristopher was barred from using a necessity argument to defend his disruption of an oil and gas auction in Utah. This ultimately led to his conviction and a sentence of two years in prison.

Despite the setback for DeChristopher, things look more promising for our case in Helena. On November 14, the municipal court made no objection to our legal team’s stated intent to use a necessity defense. It now remains to be seen if the local government will move the case forward or drop charges to avoid publicity that could come with a precedent-setting trial.

If the trial does take place, it may encourage more people to get involved in direct action. A network called the Coal Export Action, originally established to organize the August sit-in, is seeking to use the upcoming trial to educate more people about the role civil disobedience is playing in the climate movement. Media coverage of the August action and November court hearing was mostly positive and has helped build a buzz around climate-related protest in Montana.

Like many of the sit-in participants, Margarita McLarty — a grandmother who was arrested on the third day of the action and plans to participate in the trial — believes this kind of civil disobedience can help inspire the transition to a cleaner and more just energy system. “I hope that we can wake up,” McLarty said, “and apply our wisdom, creativity and vision towards growing clean energy alternatives. That dream compelled me to sit down on the floor of our Capitol building and risk arrest.”

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