The Delta 5 in the movie: The Race to Save the World

 On Earth day the movie: The Race to Save the World came out.   Due to Covid it was unable to be in movie theaters but groups around the country hosted online showing often with panels afterwards of folks who were in the movie.  The movie has been winning international documentary awards:  10 at this point including best documentary in the SOHO and semi finalist in Cannes.  This is part of a 4 part review of the movie - 1 a week for a month.

The movie follows a number of different climate actions around the country mainly in 2014- 2016: the sHellNo! campaign, the Delta 5 action, the Valve Turners, the Our Children's trust law suit against the state and national government, an intercontinental walk for climate from California to New York, as well as some arrests that took place in front of FERC (Federal Energy Regulatory Committees.)

The producers had hard choices to make - they had days and days of film and as it is it is a two hour movie.   In many ways it could have been 5 hour long films.   So there are parts that don't get said.  Apparently the part with Abby playing with the marshmallow "peeps" activists and toy train set almost was cut.  I'm so glad it wasn't - it is somehow my favorite part.   I remember the day Abby was arrested seeing a tiny postage size picture on FB of a woman on top a tripod getting arrested for blocking an explodable oil train.  There was something about the body posture that made me think; "hmmm that is looks like my friend Abby".   But I never dreamed it was because Abby was the mom of a 5th grader.  But as we would all come to find out, it was Abby because an oil train that already tipped over in Seattle the year before and thankfully did not explode, did so within the 5 mile blast zone of Abby's daughter's school!  We all lived (and still do), in fear of what if one exploded while inside the tunnel that goes under down town Seattle?   Seems like it would be another 911 event.  But created not by terrorists but my corporate America.

Abby makes a number of people cry when they watch the movie with her raw honesty and dedication of being willing to "risk everything" - even her house, because "what is that compared to losing the planet".   I wonder what kind of world we would have if everyone were willing to risk everything.  (Contrast to last months post about pension board members not willing to risk following their own common sense for fear of being sued.)  In the movie it is explained that her group of 4 co defendants (who were chained to the base of her tripod) and herself were able to use the "defense of necessity" during the trial but then were denied it at the end.  But it is not explained what the defense of necessity is.  In common law for centuries it is true that if you are charged with breaking and entering because during a fire you break into a house to save someone - this defense says it is ok to break a law to do a greater good or prevent a greater wrong.  This defense has been tried, sometimes successfully in previous civil disobedience actions.   In fact most commonly this was the defense in the 80's and 90's of people who did plowshare actions (beating on nuclear weapons systems to render them inoperable.)  Timothy DeChristopher tried this defense for his Bidder 70 action but was denied it - leaving him in a trial where he could never tell the jury that the reason he was bidding without actual money on a piece of land being auctioned off for oil drilling was because of the climate implications of that.

So it was a big deal that the judge struggled over and first denied, then reversed and allowed for the trial and then ultimately denied at the time of jury instructions.  It was the first time it has been allowed in a climate trial.  When Judge Howard allowed it he said they would have to meet the 4 criteria before he could allow it at the time of jury instructions.  The four criteria are:  1) there is an existing emergency that is not the defendants fault 2) There is a compelling reason for the defendant to believe that they or someone else  would be harmed if action were not taken. 3) the harm created by the defendants action is not greater than the one they are trying to stop and 4) that they have exhausted all other means to stop the harm.  The first two were easily met by expert witnesses on climate change and stopping a train vs a train blowing up seemed to meet 3.  

But the judge ruled before giving jury instructions that they had not exhausted all means despite the defendants producing an exhaustive list of things they had done from lobbying officials (including a letter to President Obama Abby had written and received answer of) organizing protests, marches and rallies and despite her co-defendant Patrick Mazza having worked as a climate activist for non-profits all of his adult life.  This is the sad thing - really how could one ever prove you have done everything possible....but before it is too late for the planet we will not have time to do everything possible.  We will have to do what is deemed most effective which these 5 defendants had. Therefore the judge had to deny their necessity defense at the end. He had originally denied it in a 25 page brief.  They asked him to reconsider which judges never do.  After 20 mins he came out and said he had recently given a talk where he said Judges need to be more humble.  So he was going to be humble and allow it.  It was my sense being in the courtroom that Judge Howard is a liberal judge who was sympathetic to them from the start and probably knew they could not make the bar.  I believe he decided to let them try so their case could be heard.  He knew we cannot unhear what we have heard, that even though he would have to tell the jury to disregard what they had heard - that it would influence their decision.  And it did: the jury found them not guilty of 1 of the two charges.  There was no way around the second one since they had all admitted to blocking the train.

The jury came to them in the hall and hugged them and told them that they would have found them not guilty if they had been allowed the necessity defense.  The jury foreman was in tears and they thanked them for trying to protect our community.  (All of this did not make it into the final edit of the movie)  See my other blog for an account of the trial written at the time in Jan 2016.  The case was appealed to the Supreme Court that they should have been allowed the defense because if they won that it would have been precedent setting.  But they lost at the Supreme Court level.  However, one of the things about being faithful is you do not know what ripples it will have.   By being the first case where it was allowed at all, it has made a different sort of precedent.  since then a handful of climate protest cases have made this claim, some have been allowed and then denied like the Delta 5, at least one was allowed and resulted in an acquittal and in one case it seems to have resulted in the case being dismissed when the prosecutors realized that now the fossil fuel companies actions would be testified to.

A painful thing to watch in the movie, as it was in life, was the panic attack that Abby had on the stand mostly preventing her from telling her story as she wanted to.  We again watch her judge and her lawyer react in frustration and confusion from her behavior because they did not know she was having a panic attack.  The movie reveals that Abby's husband, and Michael Foster's partner, Sue, did not know what they were going to do before they did it.  But it does not explain why, leaving the audience to perhaps think they were thoughtless of their partners.  Far from it, legal advise is to tell as close to no one, as you can, because those who know could receive conspiracy charges as has happened in some famous protest cases in the 60's and '70's.   So we can feel palpably, Roger, Abby's husband's frustration that he did not know about these things that Abby had thought about for months and months.

The movie does not show us: Patrick Mazza, Jackie Minchew, Michael Lapointe or Liz Spoerri.  As the voice over says: "We were all ordinary people.  None of us had ever been arrested before".  Patrick had been activist his entire adult life and Liz Spoerri was a young woman almost 30 who taught special needs children. Michael LaPointe had so little money he qualified for a court appointed lawyer.  Jackie was retired and worried about a future for his grandchildren.  That was the amazing thing about the Delta 5 - it was the story of ordinary people doing the necessary thing they could do to defend our planet.