The Necessity Defense: On the Trial of Alec Johnson
By Michael Sheehan
This is about the Keystone Pipeline. This is about oil.
Here’s what happened. On April 22, 2013, Earth Day, near where Atoka meets Tushka1, Oklahoma, Alec Johnson walked onto a construction site of the southern portion of Keystone XL (now called the Gulf Coast pipeline) and “locked down” to an excavator, described by the arresting sheriff as “the biggest [he’d] ever seen.” He brought along with him a “homemade device,”2 which was impenetrably wrapped around Alec’s wrists like a sort of monstrous muff—upon which was written “Stop KXL”—and, seated, made his stand. He was connected to a piston on the excavator. Alec held up work on the pipeline for about an hour and a half.
On September 21, 2014, I stood among a crowd in Nacogdoches3, Texas and listened to Alec speak at a rally. Alec is fairly tall, with a build that might recall a 1970s linebacker but with a demeanor and carriage more consistent with a history professor. He is in his early 60s, white-haired and with a thick white goatee, what I’d call a pugilist’s nose if that can avoid conjuring the battered proboscis of a Marciano. He is energetic, young-seeming, impassioned. Alec’s mother was the science fiction writer Anne McCaffrey, best known for her Dragonriders of Pern series. When it was his turn, Alec approached the flatbed trailer bedecked with banners and posters and stood behind the microphone. Loomed, is more accurate. He read several pages of a typed manuscript. The day was lovely and bright, and a passing breeze broke the fever of East Texas in September. I stood with my wife and gently rocked the stroller in which my newborn daughter slept.
We who stood in Pecan Park at the end of the People’s Climate Justice Walk were thereby joining the hundreds of thousands in New York City and in over 160 countries who were gathering as a call to be heard, a collective act meant to demand the attention of our government, as well as those of many nations around the world who were in NYC as part of the UN Climate Summit.4 The numbers fluctuated, as tends to happen with this type of thing, but the reporting seemed to agree this was the largest-ever climate protest, with estimates suggesting over 300,000 marchers gathered in NYC alone.
In the southeast corner of Pecan Park the disc golf course gives way to the Lanana Creek Trail, a wooded stretch that runs down to Main Street and a bit beyond. Nacogdoches is the Garden Capital of Texas, which honorific relates to its azaleas5; to the north and south, the trail connects with parts of the Azalea Trail, popular among springtime Texas tourists. Beginning sometime in the spring or summer, whenever I would walk the Lanana Creek Trail with my dog, I would pick up whatever trash I saw along it and throw it away or recycle it. Whatever sense of sanctimonious joy I may have had was, trust me, fleeting: it was easy to fill my arms with dirtied garbage, dump what I’d picked up, and then refill two or three times more. The trail is something like three miles long. It felt futile much more than it felt effective. I would pass a few runners and walkers as well as the occasional mountain biker while trying awkwardly to hold my charging lab in one hand with other people’s Doritos bags, plastic bottles, etc., pressed to my chest with the other. I got some looks, but only one comment: a graying, middle-aged runner passed me, then reached the trailhead and turned to run back and said, “Aren’t people trashy?” Witty.
A little earlier that September Sunday, I had read an essay (“The Wheel Turns, The Boat Rocks, The Sea Rises”) by Rebecca Solnit that, in part, said “The world is not going to be saved by individual acts of virtue.” I’ve shortened her sentence and taken the above a bit out of context (hers leads to our collective marching), but only to enhance the point, or a part of it: we are past the point where we, I, can do enough on our own. It is not that my desire to effect change, my conscientious attention to my impact on Nature, is useless or should be abandoned. Rather, my small acts of virtue are, as the proverb goes, merely drops in the acidifying ocean.
I would walk that trail and think of my daughter, about to be born, and I would think of the world she’d be born into. I would try to suppress my annoyance at all those who passed me, all those who looked, all those whose litter lined this trail, reminding myself that I was not doing this for them, not to obligate or make a statement. I simply wanted to do something that was easy and I hoped helpful. But, again, every time I walked the trail there was more garbage, and always more beyond the trail down in the creek, and spilling over the blue plastic barrels positioned along the trail, and so on.
Solnit is right: my actions at home or at the grocery store or on my commute or when walking my dog are not enough to save the world. My small efforts at erasure would never efface the whole history of human detritus spread across the Earth.
So why do it?
Alec’s actions, his commitment to environmental activism and to its ability to effect change, interested and inspired me and yet also raised for me a series of questions: What goal does such an action have? What goal can it reasonably have? What can it hope to achieve—and if not its stated goals, something else?
So: the People’s Climate Justice Walk had ended, and speakers took their turns at the micstand, and Alec invited us all to attend his upcoming trial in Oklahoma.
What Alec was finally charged with on Earth Day was two misdemeanor counts of obstructing the duties of a peace officer: count one for refusing to loose himself from the contraption and get off the excavator; count two for refusing to stop speaking (crying out to other protestors) when the deputy told him to “hold it down.” Alec had been arrested previously, including for protesting nuclear development in the 1970s and 1980s. He was arrested for protesting KXL outside the White House; he was arrested in Texas for trespassing when (knowing it was illegal and would result in arrest) he entered the headquarters of TransCanada during a protest.
The day before Alec’s arrest, Tim DeChristopher (TDC) was released after serving 21 months for disrupting what the government had ultimately decided was an illegal land auction. A (very) brief summary would be: TDC walked into an auction where federal agents of the Bureau of Land Management were essentially giving away rights to public lands to be exploited for energy. This was at the very end of George W. Bush’s presidency6. TDC began bidding, though his intention was not to buy but to obstruct the purchase of as many parcels of land as he could. He drove up prices, he won auctions, and shortly after the auctioneer closed business, he was arrested. He was subsequently tried, and during his trial was treated like a fraud who’d pretended to have money he did not in fact have; his moral reasoning was not allowed; his motivation—to protest—was barred.
At the end of Voltaire’s picaresque, Candide opts for practicality over perfection. To cultivate one’s own garden is to turn inward, to retreat—in a sense—to one’s own spiritual environs, leaving the wider world Out There. After his release, TDC went to divinity school at Harvard, instead of returning to direct action with the environmental movement, as some had expected and hoped.
When TDC, aka “Bidder 70,” was on trial, he was not allowed to speak to the jury; after they left, he was allowed to give a statement, which includes:
The reality is not that I lack respect for the law; it’s that I have greater respect for justice. Where there is a conflict between the law and the higher moral code that we all share, my loyalty is to that higher moral code…. The authority of the government exists to the degree that the rule of law reflects the higher moral code of the citizens, and throughout American history, it has been civil disobedience that has bound them together.
Alec mentioned TDC in his speech at the Climate Walk and his act of civil disobedience had the same moral urgency to it, the same belief that breaking the law was the right thing to do, the only thing to do.
On October 23, 2014, a month after the Climate Walk and more than a year after his arrest, Alec stood trial in Atoka County Courthouse before a jury of his fellow citizens. As was planned, there were approximately 35 supporters who made the trip with him—either from Nacogdoches or elsewhere—who all met and rallied the night before trial and then again gathered on the courthouse lawn shortly before the 9 a.m. start time.7 His supporters mostly wore green bandanas and were a mix of slightly older, primarily church-affiliated folks and younger environmentalists8. Awkwardly, we gathered all in a single-file line in the hallway and waited after Alec and his lawyer strode into the courtroom, nervous and confident at once. We waited while whispers passed up and down the line, like “Can’t we go in?” There were several people already seated in postures of bored waiting in the courtroom. Alec came back out; his lawyer and the ADA and the judge were confabbing behind the scenes somewhere. He encouraged us all to enter, holding the door as we filed in and took our seats.
“We own this court,” he said as we shuffled in, with hugs and handshakes and words of stalwart good fortune.
The court was, indeed, more or less filled after we’d taken our seats. There was a sort of undercurrent of energy and nerves that could be felt as if our presence was perpetuating our presence in a feedback loop. The courtroom was churchlike, with 14 rows of wooden pews for spectators and the jury pool, above which on the wall hung a faded image of JFK; beyond a low wall and a swinging door were the prosecution’s and defense’s tables—Alec sat stoicly in his place, the box filled with three-ring binders that he’d carried in earlier there beside him. The jury box was to the far left, 12 thickly-padded, square-topped chairs. The judge’s bench was on the opposite wing of the courtroom—which was semicircular at the front, with the witness stand (and a whiteboard and above that a clock that did not work) at the center of its arch, a podium at its circular center. A woman who would later be revealed as the bailiff glanced out from behind the curved walls like an actress in the wings regarding the audience on opening night. The arresting officer, Deputy Lewis Layton, took his seat in the courtroom, along the righthand wall nearer to the spectators than the judge’s bench. He greeted us all, supporters and jury alike. Because that’s who else was there: the jury pool. Only the prospective jurors. The bailiff came out and asked if anyone not in the jury pool could get up and move to the back of the room so the jurors could be seated in the frontmost two rows, making clear who was here to pass judgment and who was here to make manifest our support. Voir dire (which the judge and ADA pronounced vor dire, like dire warnings or Dire Straits) took us until lunch, about which I’ll have more later.
Alec’s lawyer Doug Parr9 meant to present a two-pronged argument: the necessity defense based on public trust doctrine. Basically the necessity defense is: the defendant broke the law in order to prevent a more serious violation of the law. Typically it is considered (by the judge) based on the imminence and severity of the threat, the impossibility of doing anything other than breaking the law to prevent the greater violation, and whether the avoided action was worse than the law broken by the defendant.
It has never been successfully used in the trial of an environmental activist.
Public trust doctrine states, in essence, that Nature is publicly shared property: the air, the rivers, the oceans, the soil, the atmosphere. As Alec explained during his Climate Walk speech,
When it comes to our commons, to our public property, we the people have rights in a public trust…. [We] demand our environmental institutions and agencies recognize their responsibilities as trustees and exercise their fiduciary responsibility to act with “the highest duty of care,” to ensure the sustained resource abundance necessary for society’s endurance.10
I’ve got it on scuttlebutt Alec could have taken a plea but wanted to go to trial to establish a useful precedent for future activists, arguing (and he hoped winning) on the necessity defense.
As it would turn out, Judge Preston Harbuck did not allow this defense, nor the development of an argument based on public trust doctrine. He also refused to allow the sworn testimony of climate science expert and head of NASA’s Goddard Institute Dr. James Hansen, suggesting it was “hearsay.”11
When Rachel Carson wrote Silent Spring, DDT was a relatively new, manmade addition to the arsenal assaulting Nature. In fact, it was a product of World War II. It hadn’t been around long enough for anyone to know what the long-term effects of spraying it on plants and thereafter ingesting it would be to us and to our ecosystem. Bitumen, however, has been around a long time: the Old Testament mentions pitch—bitumen—sealing Noah’s arc. Bitumen, pitch, tar. This is what lies in abundance beneath the boreal forest of Alberta, Canada. This is what KXL is about.
Fact: tar sand is a mixture of clay and sand and water and bitumen. From which, with refinement (a term whose double meaning is well noted), it becomes the oil we can burn. It is not just pumped as-is from the ground, but must be mined.
Fact: according to Dr. James Hansen, “Canada’s tar sands… contain twice the amount of carbon dioxide emitted by global oil use in our entire history.”
Fact: the tar sands extracted from Alberta are mined out from under the earth or pit-mined, which means erasing the ancient forest atop the pitch. Pit mining = strip mining = clearing what is glibly referred to as the “overburden”—vegetation and soil, which = boreal forests in Canada, the types of plants (trees) that consume and help regulate the level of atmospheric carbon. So, less carbon consumed and more carbon released. Slightly over half all tar sands production is open pit mining. The “in situ” mining done below ground involves injecting the bitumen with steam to heat it and thereby make it viscous enough to run into collection wells. Roughly 80 percent of the massive Alberta reserves are too deep for pitmining, which means eventually (after around 2030) extraction will need to be done more frequently via the in situ method.
Fact: roughly 40 percent of the proposed KXL pipeline is already completed, with a segment almost 500 miles long stretching from Cushing, OK to Nederland, TX.
Fact: producing oil from tar sands releases approximately 17 percent more greenhouse gases than traditional oil drilling.
Fact: bitumen doesn’t just flow through a pipeline. It has to be diluted. Thus: dilbit. This can mean water, which creates a lot of wastewater. Or this can mean natural gas. This is not an exhaustive list of the diluents used, because such a list is not available. What different members of the industry use is known only to them.
Fact: along with dilbit, there’s also upgraded bitumen, a.k.a. synthetic crude oil (SCO), and synbit (synthetic bitumen) made from mixing bitumen with SCO. Basically what matters about the three relates to the emissions created by refinement, and the where and when of them: SCO means greater emissions at extraction; dilbit means greater emissions later, like in Texas as opposed to Canada; synbit means emissions both at extraction and later.
Fact: the United States uses more oil, per capita, than any other country on Earth. By a lot. As in between one-fifth and one-quarter of all oil used globally.
Fact: bitumen is a hydrocarbon, meaning the result of ancient flora and fauna—ancient life, long dead. One resource suggested it was from ancient plants and also dinosaurs, Earth’s dominant life forms before an earlier extinction event.
Fact: tar sands ≠ oil. This one matters in part because TransCanada often misled on this point, either not being specific about the contents of the pipeline or stating it was oil, that oil would flow through the pipeline they’d be laying across private property all the way to the Gulf Coast. But it is not oil. It is a toxic mix, diluents and tar, often with the exact nature of the diluents used unstated.
Fact: the dilbit is heated and pressurized, which raises serious concerns about the lasting integrity of the pipelines used. E.g., the massive tar sands (or dilbit) spill in Mayflower, Arkansas came from a 22-foot gash along the Pegasus pipeline, which Exxon has not yet explained publicly.
Fact: after the Mayflower spill, the local first responders didn’t know what was in the pipeline, which meant they didn’t adequately react, which meant they didn’t evacuate everyone, which meant more people were exposed to benzene and hydrogen sulfide by staying put through the early spread of the spill. During Alec’s trial, it became clear—and was picked up on by the defense and, later, Alec himself, that no one had trained the Atoka first responders—including the arresting officers—what to do in the event of a spill. They, themselves, were evidently unclear on the difference between oil traditionally extracted and tar sands. There was much evidence mentioned throughout this trial—by those who were angered by it, on the defense, and those who’d never worried too much over it, witnesses for the prosecution—that TransCanada and its affiliates had been evasive or had even deliberately misled private landowners and local communities about the dilbit that would be flowing—at high temperature and pressure, more likely to erode pipelines, and filled with carcinogenic toxins (benzene) and chemicals that caused respiratory illness (hydrogen sulfide), among whatever else was in that particular slurry—through the 1,660 miles of the KXL pipeline.
Fact: many in Mayflower have experienced headaches12, nosebleeds, hemorrhoids, rashes, weight loss, and weakness.
Fact: rates of cancer among the native peoples who live north of McMurray, a tar sands mining town near the Alberta reserves, are higher than expected.
Fact: the Lakota Sioux, whose lands would be impacted13 by the pipeline if it were approved and built, described the U.S. Government’s recent vote on KXL (spawned by a desperate Mary Landrieu, D of LA, in her hope to become indistinguishable from her opponent, who had drafted and/or sponsored the House version of the bill) as an act of War. When the Senate failed to pass the bill, a Lakota man sang a traditional Sioux song (translated by him as), “Grandfather look at me, I am standing here struggling, I am defending Grandmother Earth and I am choosing peace.”
Fact: the Texas Government has allowed TransCanada, despite its status as a private company, to exercise eminent domain, as if the pipeline were a public good. Eminent domain being the Government’s right to expropriate private property. It’s a legal term, but note its echo of OT God’s placement in trust of all Creation to Adam. My dictionary warns me not to confuse eminent, like legal domain (from the Latin for “supreme lordship”), with immanent, meaning inherent, the type of dominion granted in the OT myth.
Fact: when Eleanor Fairchild14 (78 at the time), among others, refused to sell her land to TransCanada, they seized it. This was upheld in Texas as legal, TransCanada considered a “common carrier” (as defined in the Texas Natural Resources Code, §111.002), the land condemned. When Eleanor later stood (alongside Darryl Hannah) in front of a TransCanada truck to prevent construction, she was arrested for trespassing—on her own property. Or what had been her property, before it was eminently expropriated.
Fact: the excavator Alec chained himself to belonged to Michels Pipeline Construction, a company contracted to build KXL. The arresting officer in Alec’s case, Deputy Lewis Layton, went on shortly afterward to work for Michels Corporation, as a security guard. Presumably overseeing their pipeline construction and the land they lease. A security guard differs from a sheriff’s deputy in that the former works for the company (Michels) whereas the latter works for the public, protecting the public, a servant of the greater good. Or so we believe. During the trial, there was conflicting testimony as to who called the Sheriff’s Office. The ADA claimed the property owner called when she saw people on her land who had not sought her permission to be there. But her testimony was she saw them, went home, and had an answering machine filled with messages and a ringing phone, all from the land agent (of Michels), who told her she needed to call the Sheriff’s Office and make a complaint. However, her testimony also included the fact that the Sheriff’s Office had already responded, that there were Sheriff’s cars already there when she passed by on her way home and first saw the protestors, that the Sheriff and his men were called by someone else, clearly Michels staff. The Sheriff testified that when he first spoke to Alec on site his attention was almost immediately drawn away by a Michels employee telling him to go and deal with other protestors who were attempting to climb aboard another piece of equipment, across the road. Simply put, Michels Construction was conducting the public servants like they were paid security guards and telling the legal owner of the land what to do to make the complaint her own, though they were clearly the complainant. It came out during Deputy Layton’s testimony that Michels personnel had at no time spoken directly to the protestors. The suggestion that the company was calling the shots in this way, that the legal system was being manipulated to serve their ends, was unsettling to say the least.
Fact: not long after this protest, Michels was fired (in the words of Doug Parr). TransCanada replaced them, it seems, due to their work being plagued by “anomalies,” dents and dings and sloppy backfilling and erosion-encouraging topsoil non-replacement and potential pipeline flaws. One might see in their work or their replacement grounds for reasonable doubt that KXL is, as TransCanada claims, “the safest pipeline ever built.”
Fact: blocking the pipeline, reports have argued, would not likely harm overall production and extraction of the tar sands. The U.S. State Department’s report suggests the tar sands will be extracted and refined and produced one way or the other; reports also suggest blocking the pipeline is unlikely to seriously impact tar sands costs. The extraction, production, refinement, and ultimately chemical release of the carbon in these buried deposits is, per State Department, inevitable and (not eminent nor immanent but) imminent.
Once the trial got going, its order was as follows:
ADA Matt Stubblefield
Defense attorney Douglass Parr
First, for the Prosecution:
The Owner (wife of the couple) of the property leased to Michels
Atoka Cty. Sheriff Tony Head
Atoka Cty. Deputy Lewis Layton
Then, for the Defense:
After that, there was an extended break in the action, closing statements, the jury deliberated for roughly 15 minutes, and finally the verdict was read.
The defense strategy was to widen the conversation while the prosecution worked to keep the presentation of evidence very narrow-gauge. ADA Stubblefield probably spoke more objecting to the defense than he did with his own witnesses. As for the opening statements, the ADA’s was very dry, fact-based, while Doug appealed to story—he opened with a lyrical image of spring, describing it as “Earth coming back alive after the winter,” with weather-specific details familiar to “we who live here,” stuff only Oklahomans know, rhetorically savvy appeals to the locals. From there, though, both the prosecution and defense focused on facts. The prosecution’s were as above, dry and simple, e.g.:
Q: What was the defendant doing when you first saw him?
A: He was locked to the excavator.
Q: And what did you do?
A: Told him to come on down from there.
But the defense, it seemed to me, also really hammered on the facts. The climate science facts. It seemed there were more statements establishing the facts (and their facticity) than the moral exigencies these facts represented to us, or to Alec. As I noted, the necessity defense had been banished, but even still the attempt to bring Alec’s mindset to life for the jury seemed to be all about stats and numbers and dilbit info. Alec did present himself as a concerned grandparent, a person who thought first and most about the future world of his progeny and theirs, etc. But other than that, it felt like the defense was working hard to open windows in the trial for raw climate science. Alec made repeated mention of the fact that climate scientists were to be trusted, that their science and findings and dire warnings were real, that this was real science, which I thought was not the best approach but then again he’s right: there is a widespread culture of doubting the experts and trusting the naysayers paid by the oil companies.
But, still: along with the pedantic tone, I wondered whether the lively listing of facts conveyed the passionate moral need to act. I wondered a little bit whether what was needed was a bit of the other side of the thought spectrum: not facts, not knowledge, but belief.
I submit Alec’s actions were not the result of his factual knowledge (in all the scientific evidence, the good and real and hard evidence about tar sands and climate change and the destruction of future Life) but rather a type of religious thinking. I think Alec risked arrest and chained himself to the excavator not because he thought his direct action would change the pipeline’s progress nor the production of the tar sands but because he cared very deeply and passionately and acted despite the evidence, despite what the facts might have argued.
But so: after lunch, the prosecution presented the basics of the case, with the defense angling on the larger context in cross examination. We recessed, and it was learned Dr. Hansen’s testimony would not be allowed as evidence. Alec took the stand, and the ensuing testimony was fragmented by objections and sidebars until the point when the judge ordered Doug to ask Alec only yes or no questions. Prior to this, Alec had attempted allusions to the disallowed testimony; much of his testimony on the stand sounded like summary or paraphrase anyway: not that he doesn’t himself know the information, but he had a habit of citing his sources often. After the terse yes/no exchanges, Alec left the stand. The jury was ordered out while discussion continued on allowing any of the binders Alec and Doug had at the ready. Eventually, in what seemed a flurry of excitement for the defense, these were seemingly allowed—the sidebar conversation, though unheard, resulted in them stamping the binders with evidence tags and stacking them on the bench. After this extended pause, the jury returned, closing statements were delivered (I heard Doug’s was rousing and eloquent and covered the range of Civil Disobedience in this country; I stayed only until about 5 p.m.—the trial went on until 7, roughly ten hours—before leaving to drive the four hours home), the jury deliberated and returned.
But, the jury specifically asked that Alec not be given jail time in sentencing. The punishments he faced included up to a $1,000 fine or up to two years imprisonment. Judge Harbuck wished to overrule the jury’s explicit request and send Alec to county jail. Drama ensued. Both lawyers raised their objections, arguing if the judge so ruled they would file for a mistrial. There was much consternation among the Green Bandanas. Ultimately Judge Harbuck relented and Alec was fined $1,000 and sent home.
Not all was lost, though.
Something happened during voir dire that at least I felt mattered, like as in really mattered. It was not really a legal victory, or a legal thing at all; it was a human connection, a feeling of shared obligation and common understanding.
Let me try to show you.
Twelve people were called forward for jury selection, of whom six would hear Alec’s case. They were seven women and five men; seven were married, four were single, and one was engaged; they included a teacher, a city commissioner, an energy salesperson, the manager of a call center, a nurse, a pipeline-trailer-unloader, an employee at Sundowner Trailers Inc., an employee at a travel plaza, and an employee of Wal Mart, as well as one unemployed person.
Judge Harbuck’s first question was whether they knew any of the persons involved in the trial (he read the names of the witnesses); one knew the sheriff because they hunted on the same lease; another knew him because she’d been arrested; one knew him because he lived down the road and attended the same church; one man—the city commissioner—seemed to know everybody involved in some cursory way.15 One man was the brother-in-law of the arresting officer, Deputy Layton.16
None knew Alec. None had ever heard of Dr. James Hansen.
Only one had heard anything about the events of this case previously, during an unremembered conversation over dinner with his parents (with whom he lived). He claimed it had come up, he couldn’t recall how, but that nobody had any opinions on it. It was simply noted shortly after the arrest, like that it had occurred.
None had any involvement with KXL. None seemed to have much knowledge about KXL.
All were residents of Atoka County17, a 978-square-mile area populated by approximately 14,000 people, where (according to Wikipedia) the per capita income is $12,919 (less than minimum wage). Around half the population is registered to vote, and primarily registered as Democrats, although the county has gone Republican in all presidential elections since at least 2000, by a widening margin.
Doug Parr, when it was his turn18, began his lengthy voir dire with colloquialisms, i.e. how he wanted simply to “visit with you” and “get to know you.” What at first I thought was a kind of pedantic style I later came to see was Socratic method.
He asked about their news sources with questions that pushed toward the political implications of the media, their inherent biases. There were lots of local news watchers, for instance a regal-looking woman whose fair hair was 1970s stylish who answered, “I watch the evening news.” Another offered, when asked what the interest in the local evening news was, “Mostly I want to know what the weather’s going to be like.”
But after a while of this, Doug went for it. “Who owns the air we breathe?” he asked. He let this sink in—the jury were visibly bemused, their shocked faces like the contestants on a wacky daytime game show—repeating it with slight variations in his intonation. “Who owns the air, the rain, the ocean?” God, the unanimous answer.19
The next Q, “Whose responsibility is it to ensure these things stay the way they were created,” engendered an objection and a long sidebar, after which Doug was allowed to ask. One answered (Doug was calling on them by name throughout this process) “the people of Earth have shared responsibility.” This didn’t seem like the party line or some preconceived belief; this juror seemed to find this answer only when faced with the question. That, to me, is significant, in terms of “telling the truth” in ways that might also be discovering the truth.
After another Q got tossed because of a further objection, Doug asked who they trusted more to take care of Earth and they all said they trusted people more than big corporations20 (the binary was Doug’s). Why? People are closer to the Earth, corporations care most of all for profits. Doug asked whether they felt corporations could be trusted to tell the truth or whether corporations might not tell us all the facts, which was answered with wide skepticism toward corporate transparency and disclosure.
When asked about global warming, one opined “the world’s all messed up,” but also hedged “I’m not really for or against it [global warming].” Another (very sharp) woman said (the Q was roughly “global warming: happening, not happening?”) “Happening but as to whether humans are causing it I believe that has yet to be determined.” Her answer was echoed by the others asked: a chorus of “happening, but don’t know why.” Doug asked about the greenhouse effect: three knew what it was and one nailed a summary of it. Asked about it, one said he felt it was “not as serious as people believe.” Asked about human activity, whether our actions can cause climate change, all said yes.
To the Q “Have you ever cared enough to take action,” two vets (one Air Force, one Navy, both having enlisted) raised their hands. Asked whether it was legal to take action, one proffered as long as it’s not violent. In general the answer was one should take action if and only if it is legal.
Doug then asked whether they thought there were occasions where what’s right is not legal, where doing what’s right would cross boundaries of what’s legal. Doug’s example for this was the patent illegality of a driver crossing a double-solid yellow line without signaling but the obvious rightness in doing so when swerving to avoid hitting a small child in front of the driver’s oncoming truck. One answered yes, in a “life or death” situation. Doug parried, “What if a person thought it was a life or death situation but it might not necessarily have been?”
Doug went on to ask about whether women suffragettes were right to protest their legal inability to vote by illegally voting, introducing a little bit of the history of American civil disobedience. One man said yes those women broke the law and should not have voted—which answer surprised me, as I thought the Q’s construction made such an answer openly ugly. But the abovementioned very sharp woman (both of these jurors would be let go, reflecting opposite ends of the ideological spectrum) also surprised with a subtle bit of analysis about the arrest of these women: it was right to arrest them because there was a law and the job of the officers is to uphold and enforce laws; it was also right for the women to cast votes in protest because the law was wrong, but the protestors knew they were breaking the law, and thus knew they would be arrested.
Shortly after this, there was a break and then half the jurors were released—including the very sharp woman and the man who doubted climate science and thought suffragettes shouldn’t have voted in protest, as well as the woman who knew Sheriff Head and Deputy Layton from her previous arrest. Those who remained seemed to be the most open-minded, or the most uninformed, lacking strong opinions.
But the point of this whole thing is: among these people, the ideas of human-caused climate change and the exercise of moral agency in opposition to unjust laws were not merely introduced to them but Socratically midwifed out of them. This was a group who were either indifferent or unbelieving in terms of climate change, the urgency of action, the need to raise our collective voice and spare the planet more carbon emissions, and they had been brought—or so it seemed to me—to see and to agree with the “terrifyingly real”21 science and the complicated moral position of the necessity defense. I would like to believe this experience—however brief—meant something to these people. I would like to believe this engendered conversations in their lives, made them think about the occasions where it is morally right to do something legally wrong, that laws are not infallible and that we, the people, are more trustworthy stewards of the air, the rain, the ocean—these things that their God owns—than profit-driven prevaricating corporations. I would like to believe this was the success of Alec’s action: that at least these men and women, who had not given much thought to the issues Alec was willing to be arrested over, would leave with the underlying idea planted like a moral seed in them.
One of the other speakers at the Climate Justice Walk, Aloma Marquis, who came on before Alec, emphasized empathy. Specifically, she reminded those of us gathered there to be empathic when dealing with those who did not agree with us, the climate change denialists, et al. I was surprised by this, I’ll admit. She repeatedly contextualized her calls for empathy by noting her roots in the Christian tradition. Even still, I had expected speakers to hammer on the facts, to passionately call out for action, to rally those of us who felt something needed to be done and to charge us with that something, or those somethings. But instead she reminded us, basically, to love one another. To love those who did not agree with us. To love them as we sought to persuade them, as we sought to enlist them in order to effect change.
The closing speaker that day was Pastor Kyle Childress, whom I spoke to for a while during breaks in Alec’s trial. We talked about Marilynne Robinson, whose writings—both novels and essays—Kyle admires. He mentioned the thorough way in which she approached her essay on Darwin, a piece entitled “The Death of Adam.” And, as a sidebar continued during a 15-minute break that stretched on over 20, we also talked about fundamentalists. Kyle mentioned hearing Karen Armstrong speak once at a conference in Houston, where she advocated “people of different religions learning to talk with one another.” Though Kyle agrees with her in general, he noted “there are some folks who cannot be talked with or reasoned with.” He suggested some, particularly Fundamentalists, “are closed to other perspectives. . . . They won’t talk unless you simply give up and go over to their views.” He alluded to and paraphrased a comment C.S. Lewis made about F.R. Leavis’ interpretation of “Paradise Lost,” “They see and hate what I see and love.”
Although I wish to take Aloma’s point about empathizing, I also feel Kyle’s might be more fitting when it comes to those who deny climate change or who reject science in the face of oil-and-gas industry claims. The dividing line, it occurs to me, is reflected in Alec’s trial. The jurors are those Aloma asked us to approach with empathy. They may not be on our side but they deserve our care, our respect, our recognition of common humanity. We want them to understand the facts of the world as we do, but we are not fighting them. They are not the enemy. But: TransCanada, Michels Construction, the corporations that stand to make a profit from mining and refining, they cannot be met with empathy but must be recognized as Kyle describes Christian fundamentalists. They cannot be reasoned with. They cannot be talked to. Alec’s action reflects this.
During the trial, the arresting officer, Deputy Layton, described the crime for which Alec was actually being tried: Alec was speaking to other protestors, who were a distance away, and the deputy believed the firemen trying to saw Alec’s “device” off were being impeded by Alec’s voice (he claimed he thought they maybe couldn’t hear each other well over Alec’s speaking); he told Alec to “hold it down,” and then testified “He looked straight at me and made a statement.” The ADA asked him what it was. “‘No disrespect but I’ve got to say something.’”
It occurs to me that there is significance in this, in telling the truth (as the ADA named it) and in refusing to be silent when something’s got to be said. There are those who cannot be reasoned with, who will not hear when we speak the truth, who will counter truth-telling with denial and antifacts and even outright lies. In that regard, TransCanada won. The law favored the corporation, despite the threats to we, the people; to our children and our grandchildren.
But: the truth that mattered was not climate science; it was the moral exigency of taking action, changing the course we, as a nation, are on.
Around Alec’s action a community gathered—people who drove hours to be there not just to support the defendant but because this was their fight—and a group of people, a body of Alec’s peers, who had considered themselves neutral—who hadn’t known about the pipeline or its contents, hadn’t considered who owned the air, the rain, the oceans—they had come to realize this was their fight, too. And that action in defense of Nature might indeed be necessary.
Michael Sheehan teaches creative writing at Stephen F. Austin State University. He is the author of Proposals for the Recovery of the Apparently Drowned. His work has appeared recently in Black Warrior Review, Wag’s Revue, Conjunctions, The Collagist, and elsewhere.
One of my favorite parts of the trial was recording the ways in which this item was described: it was named a contraption, an apparatus, a device, a tube, a heavy object. It was described on a couple occasions, in increasing detail (Alec’s hands were in a section of metal pipe welded together at a 90º angle with a slim pipe or rod down the middle, then there was a layer of foam—to protect Alec from the weight and from getting scratched—then cement on the outside, with chicken wire and “metal rods and tape in different places,” with part of a chain visible—to the deputy—around one arm with carabineers—“D rings you use for repelling”), ending with the deputy’s re-assertion (when asked) that it was “homemade, you bet” which occasioned snickers and muffled laughter among the younger of Alec’s supporters in the crowd. Although I was initially only interested in the semantic hoop-jumping of the arresting officers in trying to name the means by which Alec affixed himself, it did occur to me that this language was/is the language appropriate for a domestic terrorist’s weapon, and I’m ultimately not sure that was an accident. ↩
Nacogdoches was chosen by Lady Bird Johnson as one of her azalea garden sites, when she was First Lady of Texas. ↩
Though it was under Obama that TDC would be tried and ultimately imprisoned. ↩
On the way into the courtroom, as Alec and the Green Bandanas were gathered in the final moments before entering, I overheard two women across the street wondering what was going on and speculating. One said to the other something like, “I heard it’s some group protesting about water.” ↩
As description, I wrote in my notebook “beards and ponytails.” Despite the courtroom’s ban of cell phones and food/drink—I chugged a 20-ounce coffee in the hall—the younger Green Bandanas were full-throttle tweeting (or whatever) during the entire trial. Toward the end of the day, one young woman—during a protracted caesura in the action while the judge and both attorneys parleyed—stood and snapped an iPhone image of Alec on the witness stand. The bailiff promptly ushered her out of the courtroom, curtly asking the rest of us, “Anybody else want to take a picture?” The young woman knew she’d been busted—quoth the young woman, “Goddamnit”—as soon as she’d secretively sat back down, but the ponytailed man I had assumed to be her companion barely looked up from his own phone as she was forcibly marched out by the bailiff. ↩
I’m going to refrain from any further comment on this, but Doug Parr bears an uncanny resemblance to Larry David. ↩
Evidently Alec was inspired in part by an article by Jeremy Brecher, which further elaborates, “But instead of protecting its citizens’ common property rights as it is duty-bound to do, the state is permitting their destruction…. The property the state is permitting to be destroyed—our earth’s atmosphere—remains the common property of the American people, the people of the world and our posterity.” ↩
I’m not sure how much this is worth unpacking. The judge made clear his position was he could not himself substantiate the testimony nor the other supporting documents Alec and Doug wanted to submit as evidence—documents on climate change, tar sands, etc. Was it willfully obstructive to disregard the testimony of a well-respected scientist as unsubstantiatable? Did he wish—as some among us felt—to disallow as much as possible the conversation on climate change? Did he hope to keep the focus only on what Alec did, obscuring the moral motives, the fact that this act was not a simple violation of the law but a clear act of protest? If civil disobedience = breaking the law for a moral cause, understanding the moral impetus is essential for the jury’s ruling—and that ruling is where the law itself gets judged. Without this, the trial was essentially pre-decided: though Alec pled not guilty, he admitted doing both things he was charged with as soon as he took the witness stand. His argument was not whether he had or hadn’t done them; his argument was why his actions were just. ↩
Described by Nora Caplan-Bricker in The New Republic as “of preternatural intensity.” Her article also includes a local resident losing her hair, her children suffering seizures and severe respiratory sickness. Another was diagnosed with a spot on his lung, but was unable to afford the follow up, which Exxon refused to pay for. ↩
She also spoke at the Climate Justice Walk and attended Alec’s trial. ↩
A fact that was jocularly observed by the ADA and observed with less natural jocularity by Doug Parr, like a “gee golly you do know everybody Mr. Name Redacted!” ↩
This occasioned a comic little back and forth as the ADA asked about how well he knew his brother-in-law the deputy, for how long, whether he could still be impartial, etc., despite the clear fact that this man would not sit on this jury, one way or the other. ↩
Among the county’s sites listed on the National Register of Historic Places is the First Oil Well in Oklahoma, which began and ceased production in 1888 on Choctaw land. ↩
I appreciated the way the ADA explained what he was up to, videlicet “Vor dire,” pronounced as above, “just means ‘tell the truth.’” ↩
Actually one woman said “Mother Earth,” but I think the point is clear: nobody thought the air was owned by all of us and entrusted to the government for safekeeping. ↩
One prospective juror romneyed “a corporation is technically people.” ↩
Alec’s description of what he learned as he read about tar sands and the threat their development posed to our environment, in the near term and for future generations. ↩