A Choice of Evils

Necessity is a Legal and Protest Motion Picture Primer for Climate Activists and Their New Courtroom Strategy

Law and Disorder

Co-directors Jan Haaken and Samantha Praus’ documentary Necessity chronicles the frontline struggles by Indigenous and other climate activists, including Stop Line 3 Resistance, Extinction Rebellion, the Sunrise Movement, Fire Drill Fridays, etc., against pipelines and fracking. In almost two hours, this sprawling two-part nonfiction film also zooms in on an evolving, new, novel legal defense that courtroom gladiators are developing to defend eco-warriors in the judicial arena in order to defeat the fossil fuel industry in the courts, and from which this production derives its title.

In a montage sequence using archival film clips of the Scopes Monkey Trial about teaching the theory of evolution, Rosa Parks’ case contesting segregation, the American Indian Movement on trial and other epic tribunals, Necessity demonstrates how “courtrooms [act] as forums” for monumental social issues. As Jane Fonda similarly observes in her foreword to a new book about the interaction between activism and the legal system: “The law is no magic bullet when it comes to bringing about change, but if you understand its power as a tool, you can harness it to bring about the change yourself – especially if you do it with others as a movement. In this respect I have found The Revolution Will Not Be Litigated [OR Books] to be transformational.”

An Enbridge Too Far

Part one of Haaken and Praus’ documentary, Necessity: Oil, Water & Climate Resistance, highlights opposition by Natives and their environmental allies at Standing Rock against the Dakota Access Pipeline; the Alberta Tar Sands; Line 3; and against the Calgary, Alberta-based energy company Enbridge, Inc. Enbridge’s website boasts: “We operate the world’s longest and most complex liquids transportation system, with about 17,809 miles of active pipe… We move about 30% of the crude oil produced in North America, we transport nearly 20% of the natural gas consumed in the U.S., and we operate North America’s third-largest natural gas utility.”

(According to Reuters, on June 16, 2023: “A U.S. judge has ordered Canadian energy company Enbridge (ENB.TO) to shutter portions of an oil pipeline that runs through tribal land in Wisconsin within three years and to pay the tribe nearly $5.2 million for trespassing plus a portion of its profits until the shutdown is completed… The tribe has said a breach in the pipeline along the 12-mile segment that runs through the reservation could pollute important fishing waters, wild rice habitat and potentially underground aquifers. The tribe sued Enbridge in 2019, arguing that riverbank erosion threatened a ‘looming disaster’ that warranted removal of the pipeline and saying that the company no longer had a legal right to operate on the property after pipeline easements allowing it to use the land expired in 2013.”)

In Necessity Debra Topping, who harvests wild rice at the Fond du Lac Ojibwe reservation in Minnesota, surveys a polluted site near Duluth designated with a sign stating that the “fish are contaminated.” This elder advocate ponders “who’s telling” the fowl that depend on this water for food that it’s tainted? Topping invokes the 1826 Treaty of Fond du Lac signed by the federal government and Ojibwe people, which presumably protected water quality.

At the Standing Rock Indian Reservation in the Dakotas, another Indigenous water protector, tribal attorney Tara Houska of the Couchiching First Nation in Ontario, comments on how the DAPL was relocated from underneath predominantly white populated areas to land primarily inhabited by Natives: “Bismarck’s water mattered; the tribes’ water didn’t… We are not sacrifice zones.”

About 100 members of the Stop Line 3 Resistance – which battles Enbridge’s “proposed pipeline expansion to bring nearly a million barrels of tar sands per day from Alberta, Canada to Superior, Wisconsin” (see: https://www.stopline3.org/) – have been arrested and charged with felonies, ranging from theft to aiding attempted suicide. Winona LaDuke, executive director of Honor the Earth and former candidate for vice president with running mate Ralph Nader on the Green Party ticket in 1996 and 20000, also appears in Haaken and Praus’ wide-ranging documentary, which covers lots of ground in just under an hour in part one.

Some of the protesters in Necessity cannily follow Watergate confidential source “Deep Throat’s” dictum in the 1976 movie All the President’s Men to “follow the money,” and target those funding the climate carnage. Ernesto Burbank of the Navajo Dene Nation and Michael Niemi were among water protectors who chained themselves to the door of a Duluth Wells Fargo Bank on Jan. 12, 2018 to protest the banking institution’s role in financing Enbridge and its proposed pipeline. Scott Bol, another demonstrator in the nonviolent direct action demanding that Wells Fargo divest itself from Enbridge and the fossil fuel industry, “placed a U-shaped bike lock around his neck to secure himself to the customer entrance security gate prior to the bank’s opening, effectively keeping the bank closed.” The bank lockdown, carried out by around 36 direct action activists, prevented business-as-usual from taking place for about three hours; up to 20 Duluth policemen were dispatched to the scene of the “crime.”

In Necessity Niemi, who has found the electoral system and less militant demos to be ineffective in the fight against the climate emergency, insists that water protectors’ “defense is you’ve got to break the law to stop it.” The three defendants who locked themselves to the bank were denied a jury trial and the case was overseen by a Judicial Referee, John Schulte, whose ruling in December 2018 was legally intriguing. On the one hand, Burbank, Niemi and Bol, who were defended by J.T. Haines and Jennifer McEwen, were found guilty of trespassing and fined $135 each for the petty misdemeanor offenses.

However, these convictions did not carry jail time, and the judicial referee dropped petty misdemeanor charges of disorderly conduct and obstructing justice charges against the defendants. Furthermore, seeming to agree with the spirit of the men’s protest, Schulte wrote in his Duluth District Court memorandum: “They should keep up the fight. There is a long tradition in this world of honorable and appropriate civil disobedience. This case is a perfect example,” of what Henry David Thoreau championed in his rabblerousing 1849 essay On the Duty of Civil Disobedience.

Safety Valve: For Every Season, Turn, Turn, Turn

Another direct action featured in Necessity that ended up in court is, literally, another case study in this evolving legal theory and argument: The Valve Turners’ Action. On October 11, 2016 at Clearwater County, Minnesota, “Annette Klapstein and Emily Johnston used bolt cutters to cut through chains and padlocks at a valve site for two oil pipelines in Clearwater County. Then Ben Joldersma called Enbridge, the pipelines’ owner, and warned the company to shut them down, or they would. And he live-streamed it on Facebook.” The trio faced felony charges of criminal damage to critical public service facilities and other counts, including damaging an oil pipeline, which could have resulted in sentences of up to 20 years behind bars, if convicted.

The defendants attempted to mount “a ‘necessity defense,’ enabling them to present evidence that the threat of climate change from Canadian tar sands crude is so imminent that they were justified in trying to shut down two Enbridge Energy oil pipelines last year,” which the judge at first allowed them to do. The water protectors argued that their “protest does not create greater harm than the harm it seeks to avert.” As pipeline engineer and would-be expert witness Anthony Ingraffea notes onscreen, the protesters were “charged with doing something dangerous that’s not dangerous to stop a dangerous activity.” Alaska-born Kelsey Skaggs, executive director of Climate Defense Project, a non-profit that provides free legal aid to eco-activists, acidly observes onscreen that “They took action more effective than anything the state did.”

Surprisingly, District Court Judge Robert Tiffany acquitted all of the defendants of felony criminal damage to critical energy infrastructure on Oct. 9, 2018 (John Lennon’s birthday!). Essentially, the prosecution failed to prove that the activists damaged Enbridge’s pipelines – it was a chain with a padlock they injured, not the pipelines themselves per se. At first glance this seems like a victory, but their attorney Lauren Regan, executive director of the Eugene, Oregon-based Civil Liberties Defense Center, calls the ruling “bittersweet” in Necessity. This is because the acquittal preempted the legal eagles’ plan to launch a climate necessity defense.

Co-defendant Emily Johnston, 52, a Seattle resident and poet, said: “I’m heartbroken that the jury didn’t get to hear our expert witnesses and their profoundly important warnings about the climate crisis… We are fast losing our window of opportunity to save ourselves and much of the beauty of this world. We turned those valves to disrupt the business-as-usual that we know is leading to catastrophe, and to send a strong message that might focus attention to the problem.”

One of those expert witnesses, former NASA Chief Scientist Dr. Hansen, who had traveled to Minnesota to testify, reflected: “It’s great that the defendants were found not guilty, but we missed an opportunity to inform the public about the injustice of climate change. Now we need to go on offense against the real criminals, the government

Freedom and Necessity

Finally, in this documentary’s second part, Necessity: Climate Justice & the Green Thin Line, the necessity defense literally gets its day in court after Extinction Rebellion (XR) dumps a truckload of dirt on railroad tracks blocking Zenith Energy Management’s oil-by-rail terminal in Northwest Portland on April 21, 2019 – the eve of Earth Day. About 22 protesters proceeded to plant a “Victory over fossil fuels garden” atop the soil. XR’s Ken Ward wryly argues onscreen that “Planting a garden on tracks is a lesser harm than industry ending human civilization.” On Facebook Ward also proclaimed: “Zenith is the poster child for governmental inability to act in the face of unbelievably arrogant and globally deadly fossil fuel company behavior.”

Attorney Lauren Regan of the Eugene-based Civil Liberties Defense Center, who’d previously defended the Valve Turners, announced XR’s legal strategy was the “choice of evils” defense, which is another name for the “necessity defense.” As a film reviewer, I am usually averse to plot spoilers that reveal outcomes and endings, but as this is a report on a fact-based film, I’ll make a partial exception here. Suffice it to say that at last the environmental movement wins a resounding victory based on the necessity defense, a profound legal precedent that opens the path up for anti-global warming and other activists to successfully challenge, take on and defeat corporations, the government and the powers that be. However, film critic that I am, for details about this courtroom triumph viewers and organizers will simply have to see Necessity: Climate Justice & the Green Thin Line for themselves in order to learn exactly what happens and how to apply this legal victory for their own causes.

Both parts of Necessity are dense with details and info about environmentalism, activism and the law. Highlights of the second part also show how kayakers blockade a tanker and how the ILWU, long among America’s most progressive unions, plays a decisive role in the struggle. Sunrise Movement co-founder Suzie Kasouff discusses what the Green New Deal is. Tecumseh/ Direlle Calica, Director, Institute for Tribal Government, Portland State University, is one of many Indigenous activists who expound onscreen the Native point of view in these films that stress the vital part First Nations eco-warriors play in the crusade against climate chaos.

Taking It Up a Notch?

Another of the film’s Indigenous vital voices is presented by Cathy Sampson-Kruse of the Waluulapum-Confederated Tribes of the Umatilla Indian Reservation, who reportedly stood in front of a megaload shipment of an enormous piece of machinery intended for a tar sands site in Canada in 2013 and warns in Necessity: “If they don’t do something we’re going to take it up a notch.” In a similar vein, Shanice Clarke of the Sunrise Movement insists: “They have to face what they’ve been denying and lying about for decades.” Another activist, retired school teacher Jan Zuckerman, asserts: “I’m tired of waiting for the city and county to do something.”

This brings me to a final point that is implicit in Necessity, but never explicitly addressed. Both films show that climate activists increasingly alarmed by the rapid rate of global warming and the natural disasters engendered by the climate emergency, and by the fact that governments are not taking the actions against the fossil fuel industry required to prevent an environmental Armageddon, have become dissatisfied with previous attempts to stop the climate crisis. They feel that voting, the electoral system, and passive resistance via marches, rallies, speeches, picket lines, bumper stickers, social media campaigns, etc., are no longer considered to be enough in order to confront big oil and gas and their paid henchmen in the state legislative and judicial apparatus and make them end their despoilation of the planet.

Thus, these organizers have stepped up the militancy of the tactics in their campaigns, heightening direct actions to disrupt the powers-that-be, breaking and entering sites and cutting chains to stop the flow of pipelines; chaining and supergluing themselves to fossil fuel-implicated venues to interrupt business-as-usual; blockading trains and tankers; etc. And in the courts, once elected, these activists are utilizing the necessity defense to defend their actions and selves.

But if these stratagems fail, how far will the choice of evils go to defend eco-warriors who may turn to increasingly militant tactics? For instance, consider this: In August 2003, only about one mile from where I lived at the time, a Chevrolet Hummer dealership in West Covina, L.A. County, was firebombed. A total of four SUV car dealerships, plus individual vehicles, were struck the same night in what appeared to be a coordinated offensive against gas guzzlers. The Earth Liberation Front reportedly claimed responsibility.

These acts of domestic terrorism targeted property, not people – so far. Screenwriter Paul Schrader brings the same sense of the menace of brooding violence he imbued in the script of 1976’s Taxi Driver to 2017’s First Reformed, which has an environmental theme. This fiction movie written and directed by Schrader stars Ethan Hawke as a preacher at a historic church that played a role in the Underground Railroad, who counsels his parishioner Amanda Seyfried’s husband, a troubled eco-activist (Philip Ettinger) who has previously been arrested for militant protesting. Without revealing plot spoilers, a suicide vest, similar to those used by jihadists, plays an important part in First Reformed, for which Schrader was nominated for the Best Original Screenplay Oscar.

In February 2002, after the 9/11 sneak attacks, James F. Jarboe, Domestic Terrorism Section Chief, Counterterrorism Division, Federal Bureau of Investigation, addressed the House Resources Committee, Subcommittee on Forests and Forest Health about “the threat posed by eco-terrorism… During the past several years, special interest extremism, as characterized by the Animal Liberation Front (ALF) and the Earth Liberation Front (ELF), has emerged as a serious terrorist threat.” Recently, some other activists on the Left, such as in the abortion rights struggle, have executed more extreme courses of action, too. A parallel phenomenon shook the Civil Rights movement in the mid-sixties, when non-violence met the rising Black Power dynamic.

As the planet burns, will increasingly desperate climate activists snap and cross that thin green line and turn to violence – and if so, will they invoke the necessity defense? Although Necessity: Oil, Water & Climate Resistance and Necessity: Climate Justice & the Green Thin Line do not specifically deal with this possibility, Jan Haaken and Samantha Praus’ two-part documentary offers much food for thought about climate activism and the law; it is a legal and protest primer and necessary viewing for all eco-warriors.

To watch part one and two of Necessity go to: https://www.necessitythemovie.com/watch-now.

Ed Rampell was named after legendary CBS broadcaster Edward R. Murrow because of his TV exposes of Senator Joe McCarthy. Rampell majored in Cinema at Manhattan’s Hunter College and is an L.A.-based film historian/critic who co-organized the 2017 70th anniversary Blacklist remembrance at the Writers Guild theater in Beverly Hills and was a moderator at 2019’s “Blacklist Exiles in Mexico” filmfest and conference at the San Francisco Art Institute. Rampell co-presented “The Hollywood Ten at 75” film series at the Academy Museum of Motion Pictures and is the author of Progressive Hollywood, A People’s Film History of the United States and co-author of The Hawaii Movie and Television Book.    

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