Enbridge storage tanks near the origin of Line 6B in Griffith, Indiana, as seen from the Hoosier Prairie Nature Preserve. Photo by author.



The stakes in the fight over climate change could not be higher, and a Michigan jury may soon have the chance to judge those stakes for themselves.


Here is the background: Early in the morning on June 24, 2013, local activist Chris Wahmhoff skateboarded deep into a pipeline segment on an Enbridge Line 6B construction site in Marshall, Michigan. When he emerged after having stopped work on the site for a full day, Wahmhoff (known to fellow activists as “The Whammer”) was arrested and charged under the Michigan Penal Code with criminal trespass and resisting a police officer.


Enbridge Line 6B, which runs from Northwest Indiana to southern Ontario, is best known for causing the largest inland oil spill in the United States in 2010. Because the line was carrying diluted bitumen from the Canadian tar sands rather than conventional crude, it sank to the bottom of the river instead of floating. Even four years later, the spill has not been entirely cleaned up.


Wahmhoff’s protest was less than half a mile from the site of that breach, and Wahmhoff hoped his action would stir broader resistance to the petroleum industry. As he wrote before entering the pipe, “I wish that as we are taken to jail, someone else will rise and proclaim, China’s oil will not pass through 6B any longer.”


In January, Judge Kingsley of the local circuit court dismissed the charges on the basis that the prosecutor had not presented evidence to show all the elements of trespass. But in April, the Michigan Supreme Court reversed that dismissal, and on September 29 it refused to hear Wahmhoff’s appeal.


As the two sides now prepare for trial, Wahmhoff’s attorney has announced that he will call expert witnesses to testify on the threats posed by climate change, in support of a “choice of evils” necessity defense. The judge has not yet ruled on the admissibility of this “climate necessity” evidence, but reports suggest that he may be sympathetic to this approach – and that he has even cited Thoreau from the bench in relation to the case.


The climate necessity defense most recently made news in September, when a Massachusetts prosecutor referenced the defense while dropping charges against “Lobster Boat Blockade” activists who had blocked a delivery of coal to a power plant. A few years earlier, however, a Utah court rejected the defense in the case of Tim DeChristopher, who had obstructed the auction of oil and gas leases on public lands. Wahmhoff’s case may be the first in which the defense actually gets its day in court.


Nothing is ever entirely new in the law, and the climate necessity defense is no exception: it is just the latest variation of the political necessity defense, which has had a checkered history in the American courts.


Wahmhoff’s attorney is John Royal of Detroit, president of the Michigan chapter of the National Lawyers Guild.* The Guild specializes in the defense of progressive activists, and Guild attorneys have frequently pushed the envelope in bringing political necessity defenses to bear in their clients’ cases.


Numerous oil pipelines run through Wisconsin, Illinois, and Indiana (and in fact Indiana has also already seen charges against activists related to Line 6B). It is likely just a matter of time before courts in these states too find themselves confronting the climate necessity defense in some form: either as a formal defense, or by way of negating the mens rea of the alleged crime.


Given the rarity of such cases to date, the Wahmhoff trial will bear watching. Will climate change evidence be admitted in what is ostensibly a simple trespassing case? Will it be successful?


For now, at any rate, “the Whammer” isn’t letting this trial cramp his style. He is currently the Green Party candidate for US Senate in Michigan.





* Disclaimer: I am an officer of the Valpo NLG chapter.

Crossposted to Valpo Law Blog.