Mimesis Law
28 October 2020

In Washington State, Ken Ward Does Civil Disobedience Right

February 13, 2017 (Fault Lines) — The trial of Ken Ward, an environmental activist who shut down an oil pipeline in Skagit County, Washington last year, ended in a hung jury. There wasn’t any dispute as to what he did:

Ward said during his testimony that learning of the threats of rising temperatures, melting ice and sea level rise due to climate change caused him to worry about the future of the planet for his son.

[Ward’s attorney, Ralph] Hurvitz said those fears, combined with Ward’s background in environmental advocacy and his father’s background in environmental science, led Ward to feel civil disobedience was necessary to influence a reduction in the burning of fossil fuels.

“That led him to believe it was a matter of survival, not just for him, but for everyone on the planet,” Hurvitz said.

Before trial, Judge Michael Rickert  forbade Ward from using the so-called necessity defense; basically an argument that he committed a crime in order to prevent some greater evil. From the jury instruction:

Necessity is a defense to a charge of (fill in crime) if

(1) the defendant reasonably believed the commission of the crime was necessary to avoid or minimize a harm; and

(2) harm sought to be avoided was greater than the harm resulting from a violation of the law; and the

(3) the threatened harm was not brought about by the defendant; and

(4) no reasonable legal alternative existed.

While Rickert caught a lot of flack in the press for suggesting that there was “controversy” about the causes and effect of climate change, his denial of the defense had more to do with the nexus between Ward’s act and the thing he was trying to prevent:

“It does need to have some immediacy, some imminence, more so than this particular threat and harm, which is climatic change, global warming, whatever.

Rickert also claimed that a single pipeline disruption would make no difference in any “disaster” in our environment, saying, “The actual harm to be avoided is not avoided at all. All that happens is a valve is turned.”

Which is absolutely correct. “Necessity” or “emergency” defenses are meant for situations like breaking the speed limit to get an injured passenger to the hospital. If the harm to be prevented is something so divorced in time from the crime committed, one could justify robbing a bank on the grounds that the money might otherwise be used to buy gas and electricity, thus contributing to global warming.

Rickert’s ruling had the practical effect of limiting expert testimony on climate change, though according to Ward himself, some of it still got in, including a map showing the effect of the sea level rising on Skagit county and a chart indicating the tar sands being carried by this particular pipeline was more harmful to the environment than oil.

While I’ve argued before that jury nullification is a double-edged sword, it’s hard not to like this guy. It appears that he did everything he could to ensure the minimum of harm, with a sidekick calling the oil company to ensure that the shutdown could be handled safely. More importantly, he had the courage of his convictions and was willing to accept the consequences, without fanfare. In fact, when the Willamette Week reported that he faced 30 years in prison, Ward left a comment at the article in an effort not to make people stupider:

Just to be clear, although I am charged with three counts which total 20 years and 90 days, Washington State sentencing guidelines run sentences concurrently, and given that I have no criminal record, set much lower than maximum penalties, so we don’t anticipate anything like 20 years.

Agree or disagree with his actions, Ward is at least intellectually honest about what he did and what he was facing. All too often, the civilly disobedient act as though the fact that their cause is just excuses them from obeying the law. The point of civil disobedience isn’t to avoid the consequences but to accept them; to face the punishment bravely and without flinching, in order to draw popular support and sympathy to whatever it is you’re fighting for. Ward did that, by going in front of a jury of his peers and making his case. And this time, at least one of the jurors agreed with him.

So what’s next for Ken Ward? Well, the prosecutor refiled the charges and added a count of possession of a controlled substance, supposedly for pills he had on him that he had no prescription for. The added count is suspicious, to the say the least. Nevertheless, Ward will be going through the wringer again, hopefully with the same poise he showed this time around. Good luck to him.

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