A jury delivered a mixed set of verdicts at the end of a three-day trial for a group of climate change activists arrested for trying to stop a coal train in 2019.
Four of the five defendants were found guilty on two trespassing charges each – criminal trespassing and criminal trespassing on railroad property. One defendant facing an extra charge of resisting arrest was found not guilty on that charge. The fifth defendant was found not guilty on both trespassing charges.
All took part in a demonstration in December of 2019 at a railroad bridge in Hooksett, where they attempted to stop a train from bringing coal to Merrimack Station in Bow, now the last coal-fired power plant in New England.
During the trial, lawyers for the defendants argued concern about the threat of climate change contributed to the defendants’ belief they had license to be on the railroad bridge.
The defendants testified about what compelled them to participate in the demonstration, saying their beliefs in the need to take action on climate change, their understanding of nonviolent direct action, and their goal of stopping the burning of fossil fuels led their actions.
When asked if she had concerns about the safety of standing on the railroad bridge, one defendant, Dana Dwinell-Yardley, said other concerns were more pressing for her.
“I have concerns about the safety of the planet and our collective future together. And I think it’s worth it to take a little bit of risk in order to prevent a much greater harm,” she said.
Several defendants testified about the safety precautions they took during the December protest, saying they made sure the train had already stopped before stepping out onto the bridge. Johnny Sanchez, who faced a charge of resisting arrest for remaining on the bridge attached to climbing gear, testified about his knowledge and experience with climbing safety.
Sanchez also testified about his childhood on the Ohkay Owingeh reservation in New Mexico, his connection to the Rio Grande river, and his personal experiences of watching that river dry up.
“I remember it being this very large, lush rushing river,” he said, before a prosecutor objected to the relevance of his testimony. After the judge asked him to get to the point, he continued, “I have noticed that river shrink.”
Sanchez said his goal on the day of the protest was to stop coal from reaching the power plant because the burning of coal and other fossil fuels is a major contributor to climate change, which he called an “unmitigated disaster.”
“We really should be doing everything that is within our power to stop it,” he said.
Throughout their arguments, state prosecutors maintained that the case was not about climate change. They called law enforcement officers and railroad personnel as witnesses, who testified about the events of the demonstration and arrests, and the dangers of trying to interfere with a train.
Prosecutors drew the jury’s attention to the resources involved in responding to the demonstration, highlighting the fact that a fire crew was called in to get two demonstrators down after they climbed up the bridge.
While cross-examining the defendants, prosecutors also asked about their ties to an organization that some defendants were involved with – the Climate Disobedience Center – and asked about their financial history with the organization. Two defendants said they had been paid by the Climate Disobedience Center for work they do for the organization.
Climate change in closing arguments
Disagreement over the role of climate change in the trial continued in the closing statements.
Lawyers for the defendants argued the protestors’ convictions about climate change were part of their mental state on the day of their arrest, and they encouraged the jury to find reasonable doubt – the basis for a not guilty verdict – in the state’s charges.
“In order to meet this highest burden of proof on the element of trespass, that my clients knew they did not have a license or privilege to be on the bridge that day, it’s important to think about what they did know,” said attorney Kira Kelley. “My clients believe that catastrophic climate change is increasing at an ever-accelerating rate of change. My clients believe that doing whatever we can to intervene responsibly with a culture of care, with an inviting and powerful and effective action – this is a matter of human survival. My clients believe that catastrophic climate change is driven by the combustion of fossil fuels, and in particular coal.”
State prosecutor Steven Endres accused the defense attorneys of trying to distract the jury with arguments about the climate.
“They want to distract you from how straightforward this case actually is, and say that this is a case about conscience, this is a case about climate change,” he said. “It’s not. We’re not here to resolve climate change.”
Endres argued that the five defendants took planned action to break trespassing laws, not walking off of the bridge even after multiple warnings. He questioned the goals of the protestors, suggesting that they wanted to get arrested to generate attention and interest in their cause. He also focused on the dangers involved with blocking a train, saying an acquittal in the case would be a “victory for illegal acts.”
In a previous hearing, judge Andrew Schulman ruled that lawyers for the defendants would not be allowed to present a “competing harms” defense to the jury, which would have allowed them to argue that the defendant's acts were justified, because they believed they were necessary to avoid a greater harm – in this case, climate change.
In other cases, climate activists have been acquitted of criminal charges, using necessity as a defense.
In the end, the jury ruled largely in favor of the state’s arguments.
Emma Schoenberg, the one defendant found not guilty on both charges of trespassing, said she felt a mixture of relief and a “profound sense that this is not the system that brings us justice.” Her case was different from the other defendants because, as the defense argued, she was not aware of orders to leave the railroad property in the same way as the other activists were.
Schoenberg said she hoped to see jurors at their next climate rally, holding a sign.
“I hope the jury reached this verdict out of a sense that these folks were really motivated by their love for the world and their commitment to working for a livable future for all of us in the form of a stable climate,” said defense attorney Logan Perkins after the verdict. “Even though they were found guilty, that’s not a criticism of the work that they’re doing or the importance of work to address the climate catastrophe, but just a reflection of the nature of our criminal laws.”
Part of the fight against fossil fuels
The activists’ 2019 demonstration was part of a larger movement to end the burning of coal and gas in New England. Organizers with the No Coal No Gas campaign have called for the closure of the coal-powered plant in Bow multiple times. Dozens were arrested at the plant in September of 2019.
In October of 2021, a group of activists returned to the plant to call for its retirement. They were met with a large police presence and there were several arrests. The owners of the power plant, Granite Shore Power, have argued that criticism of the plant is misplaced, saying its closure would not significantly reduce greenhouse gas emissions in the region.
In 2021, Merrimack Station emitted 325,997 tons of carbon dioxide, according to data from the Environmental Protection Agency. The Intergovernmental Panel on Climate Change has said that every ton of carbon emissions makes a difference.
The power plant is set to run at least through 2026, after it recently won another year of payments in an auction held every year by the region’s grid operator to meet projections for consumer demand in the future.
