On a gray morning in September 2014, a mother, a cafe owner, two teachers, and a co-founder of Climate Solutions set up a blockade in front of a parked oil train at the BNSF Delta rail yard in Everett. After eight hours locked to an 18-foot metal tripod they had erected over the tracks, the five activists were arrested, and spent the next 24 hours on thin mattresses in separate cells at the Snohomish County Jail.

Charged with second-degree criminal trespass and blocking or delaying a train—two misdemeanors—their jury trial officially began Monday in a tightly packed courtroom at Snohomish County South District Court in Lynnwood. By the end of the week, the defendants hope to make some serious history: Just a few days before the trial, their pro bono lawyers officially obtained the go-ahead from Judge Anthony E. Howard to use what’s called “the necessity defense.” It’s an area of law that excuses criminal action if the defendant, in doing so, was avoiding greater harm. Usually that harm is of a personal nature—the defendant had to punch the man to keep from being punched. For the first time in a U.S. courtroom, though, that argument will include the greater harm of climate change.

The five defendants, each facing up to two months in jail and $2,000 in fines, are confident. They’ve dubbed themselves “The Delta 5,” which sounds a lot like the next hot series on Netflix. They’ve already made a snazzy website and a mini-doc about their case. They’ve got the attention of the media and climate groups and Seattle City Councilmember Mike O’Brien.

The Delta 5 are bringing a hefty list of expert witnesses to the stand to testify on their behalf, including several who will make a case for the public-safety concerns surrounding oil trains, as well as climate impact.

“It’s not our expectation that we’re going to jail,” says Delta 5 member Patric Mazza. But “we’re ready if we need to.”

Mazza, a professional climate activist since 1998, is the only Delta 5 member who’s chosen to represent himself at trial. “I was in early on this issue,” he says. “I’ve seen a lot of progress. But still, we’re not moving fast enough.”

The choice to break laws for the cause, then, was based on frustration. “I’ve worked on major research projects. I’ve worked on legislative campaigns. I’ve worked on major stakeholder consensus projects. In terms of advancing through the political system, we haven’t made much progress since the mid-2000s. Even in our own state, the petroleum industry owns the Senate.”

That, in not so many words, is part of the reason Gov. Jay Inslee took carbon-emissions reductions into his own hands. Last year he ordered the Department of Ecology to develop a carbon cap using its authority under the Clean Air Act, instead of trying to push a climate bill through the legislature. The Department of Ecology last Wednesday released draft rules for the carbon cut. The department hopes to have the rule finalized by summer. So far it looks as though the state’s biggest emitters will be required to slash their carbon by 5 percent per year starting as early as 2017. Some will get a few extra years to develop their carbon-reduction plan, and all will have the opportunity to get creative with the rule by funding carbon-reduction projects and buying offsets from the California cap-and-trade market.

To Mazza, this sounds promising, but he’d prefer to see a much more radical transformation—something on par with American mobilization at the start of World War II. “We’re going to have to build solar panels like we built B-17 bombers,” he says. “It’s not a business-as-usual world anymore.”

Much like the eight kid plaintiffs who recently sued Washington state for failing to protect them from climate change, the Delta 5 want to make a splash in court regardless of the outcome—though clearly “Not guilty” is the goal, says Mazza, laughing. They believe that this is one of many high-profile public stunts needed to make extreme action on climate change a priority. Six new oil-by-rail terminals or expansion projects are currently proposed in Washington, and the recent federal vote to lift the United States’ four-decade export ban on crude oil means that domestically produced fuels will no longer be limited by domestic refining capacity, and thus the Pacific Northwest is likely to see more oil trains heading for its ports.

The word “Delta,” Mazza adds, is not only a reference to the name of the rail yard that was the site of their stakeout; it’s also, in scientific circles, the word for “change.” E

sbernard@seattleweekly.com