History will be made later today in an unassuming grey court room in Snohomish county in Washington State, when five activists—known as the Delta 5—who blocked an explosive crude by rail train last year, will argue that their actions were justified by the threat of climate change.
It is the first time ever that a U.S. court has allowed defendants to use the “necessity defense” in a case relating to climate action.
In September 2014, the five activists blockaded a crude by rail train carrying highly explosive Bakken crude in the BNSF Delta Yard in Everett, Washington State.
The five—Patrick Mazza, Abby Brockway, Mike Lapointe, Jackie Minchew and Liz Spoerri—managed to stop the train for eight hours. They were eventually released and charged with “criminal trespass” and blocking a train.
Later today the five plan to use the “necessity defense” to defend their action regarding climate change. The defense argues that violation of the law by stopping the crude by rail train was justified because it was done to “avoid a harm which social policy deems greater than the harm resulting from violation of law.”
One of the five, Patrick Mazza, has been working since the late eighties to advance solutions to the climate crisis. He has worked with power grid experts building smart grids to power electric vehicles, solar panels and wind turbines. He has worked with electric vehicle companies and to promote sustainable fuels. “I continue to work on practical solutions. I won’t quit,” he said, but he still felt that he had to do more to protect the climate.
“I sat on the tracks because our world is going off the rails,” he said, “I have spent a lot of time sitting in front of a computer trying to stop global warming. But after many years of seeing the climate crisis only worsen, it was time to sit in front of a train.”
Mazza continues: “In Washington state we are experiencing what a carbon-polluted, climate-disrupted world looks like. Record drought and lung-choking wildfires, massive salmon kill in overheated rivers, powerful and sometimes unseasonal storms, ocean acidification killing the shellfish industry.”
“At the same time,” Mazza adds, “the political system is blocked from responding in any meaningful way. Oil and coal companies have knowingly deceived the public about the magnitude of the climate threat and bought the politicians to stop action.”
Abby Brockway, another of the Delta 5 adds what led her to take action too. “I met a lot of politicians along the way but each individual said ‘I hear what you are saying but there is nothing that I can do. I feel powerless as your representative.' I can’t accept that,” she said.
The third of the five to put her body on the line for the climate that day was Liz Spoerri. “It was clear that the political reality is not keeping up with the physical reality and that citizens need to lead," she explained. “Choosing to act to block an oil train in Everett for me was conservative, logical, hopeful.
“Conservative because I want to protect the earth and its inhabitants. It’s a responsibility. Logical, because we have a narrow window of opportunity to prevent extreme climate chaos. We have solutions but we are not acting fast enough. We don’t have to build terminals and then turn a blind eye to the consequences. Hopeful because we can do so much better. If we reorient ourselves to prevent climate chaos we can address so many other problems at the same time.”
In their defense the Delta 5 will call expert witnesses including Dr. Richard Gammon Professor (Emeritus) of Chemistry and Oceanography and Adjunct Professor (Emeritus) of Atmospheric Sciences at the University of Washington. Gammon was a co-author of the first Scientific Assessment by the Intergovernmental Panel on Climate Change in 1990.
The day before Patrick Mazza spent eight hours blocking the rails, it was his daughter’s 18th birthday. “There is hope for her world and that of all our children, but not if we stay within the bounds of a blocked and bought-off political system,” he argues.
He said he is “done with lies and compromises that leave our world rapidly careening toward a global climate train wreck. I have to take direct action, to put my body in the way of business as usual and say it is unacceptable to leave the world a wreckage for our children. I hope many of the people with whom I have worked on solutions over the years will join me. We owe our children’s generation nothing less.”
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Though made in large part of plastic, glass, ceramics, gold and copper, they also contain critical resources. The gallium used for LEDs and the camera flash, the tantalum in capacitors and indium that powers the display were all pulled from the ground — at a price for nature and people.
"Mining raw materials is always problematic, both with regard to human rights and ecology," said Melanie Müller, raw materials expert of the German think tank SWP. "Their production process is pretty toxic."
The gallium and indium in many phones comes from China or South Korea, the tantalum from the Democratic Republic of Congo or Rwanda. All in, such materials comprise less than ten grams of a phone's weight. But these grams finance an international mining industry that causes radioactive earth dumps, poisoned groundwater and Indigenous population displacement.
Environmental Damage: 'Nature Has Been Overexploited'
The problem is that modern technologies don't work without what are known as critical raw materials. Collectively, solar panels, drones, 3D printers and smartphone contain as many as 30 of these different elements sourced from around the globe. A prime example is lithium from Chile, which is essential in the manufacture of batteries for electric vehicles.
"No one, not even within the industry, would deny that mining lithium causes enormous environmental damage," Müller explained, in reference to the artificial lakes companies create when flushing the metal out of underground brine reservoirs. "The process uses vast amounts of water, so you end up with these huge flooded areas where the lithium settles."
This means of extraction results in the destruction and contamination of the natural water system. Unique plants and animals lose access to groundwater and watering holes. There have also been reports of freshwater becoming salinated due to extensive acidic waste water during lithium mining.
But lithium is not the only raw material that causes damage. Securing just one ton of rare earth elements produces 2,000 tons of toxic waste, and has devastated large regions of China, said Günther Hilpert, head of the Asia Research Division of the German think tank SWP.
He says companies there have adopted a process of spraying acid over the mining areas in order to separate the rare earths from other ores, and that mined areas are often abandoned after excavation.
"They are no longer viable for agricultural use," Hilpert said. "Nature has been overexploited."
China is not the only country with low environmental mining standards and poor resource governance. In Madagascar, for example, a thriving illegal gem and metal mining sector has been linked to rainforest depletion and destruction of natural lemur habitats.
States like Madagascar, Rwanda and the DRC score poorly on the Environmental Performance Index that ranks 180 countries for their effort on factors including conservation, air quality, waste management and emissions. Environmentalists are therefore particularly concerned that these countries are mining highly toxic materials like beryllium, tantalum and cobalt.
But it is not only nature that suffers from the extraction of high-demand critical raw materials.
"It is a dirty, toxic, partly radioactive industry," Hilpert said. "China, for example, has never really cared about human rights when it comes to achieving production targets."
Dirty, Toxic, Radioactive: Working in the Mining Sector
One of the most extreme examples is Baotou, a Chinese city in Inner Mongolia, where rare earth mining poisoned surrounding farms and nearby villages, causing thousands of people to leave the area.
In 2012, The Guardian described a toxic lake created in conjunction with rare earth mining as "a murky expanse of water, in which no fish or algae can survive. The shore is coated with a black crust, so thick you can walk on it. Into this huge, 10 sq km tailings pond nearby factories discharge water loaded with chemicals used to process the 17 most sought after minerals in the world."
Local residents reported health issues including aching legs, diabetes, osteoporosis and chest problems, The Guardian wrote.
South Africa has also been held up for turning a blind eye to the health impacts of mining.
"The platinum sector in South Africa has been criticized for performing very poorly on human rights — even within the raw materials sector," Müller said.
In 2012, security forces killed 34 miners who had been protesting poor working conditions and low wages at a mine owned by the British company Lonmin. What became known as the "Marikana massacre" triggered several spontaneous strikes across the country's mining sector.
Müller says miners can still face exposure to acid drainage — a frequent byproduct of platinum mining — that can cause chemical burns and severe lung damage. Though this can be prevented by a careful waste system.
Some progress was made in 2016 when the South African government announced plans to make mining companies pay $800 million (€679 million) for recycling acid mine water. But they didn't all comply. In 2020, activists sued Australian-owned mining company Mintails and the government to cover the cost of environmental cleanup.
Another massive issue around mining is water consumption. Since the extraction of critical raw materials is very water intensive, drought prone countries such as South Africa, have witnessed an increase in conflicts over supply.
For years, industry, government and the South African public debated – without a clear agreement – whether companies should get privileged access to water and how much the population may suffer from shortages.
Mining in Brazil: Replacing Nature, People, Land Rights
Beyond the direct health and environmental impact of mining toxic substances, quarrying critical raw materials destroys livelihoods, as developments in Brazil demonstrate.
"Brazil is the major worldwide niobium producer and reserves in [the state of] Minas Gerais would last more than 200 years [at the current rate of demand]," said Juliana Siqueira-Gay, environmental engineer and Ph.D. student at the University of São Paulo.
While the overall number of niobium mining requests is stagnating, the share of claims for Indigenous land has skyrocketed from 3 to 36 percent within one year. If granted, 23 percent of the Amazon forest and the homeland of 222 Indigenous groups could fall victim to deforestation in the name of mining, a study by Siqueira-Gay finds.
In early 2020, Brazilian President Jair Bolsonaro signed a bill which would allow corporations to develop areas populated by Indigenous communities in the future. The law has not yet entered into force, but "this policy could have long-lasting negative effects on Brazil's socio-biodiversity," said Siqueira-Gay.
One example are the niobium reserves in Seis Lagos, in Brazil's northeast, which could be quarried to build electrolytic capacitors for smartphones.
"They overlap the Balaio Indigenous land and it would cause major impacts in Indigenous communities by clearing forests responsible for providing food, raw materials and regulating the local climate," Siqueira-Gay explained.
She says scientific good practice guidelines offer a blueprint for sustainable mining that adheres to human rights and protects forests. Quarries in South America — and especially Brazil — funded by multilaterial banks like the International Finance Corporation of the World Bank Group have to follow these guidelines, Siqueira-Gay said.
They force companies to develop sustainable water supply, minimize acid exposure and re-vegetate mined surfaces. "First, negative impacts must be avoided, then minimized and at last compensated — not the other way around."
Reposted with permission from DW.