Exclusive: DA Joins the Climate Activists He Declined to Prosecute, Citing Danger of Global Warming

September 10, 2014


Sam Sutter

district attorney in Bristol County, Massachusetts.

Jay O'Hara

climate activist. He is a Quaker and a sailmaker from Cape Cod, Massachusetts.

Ken Ward

longtime climate activist, co-founder of the National Environmental Law Center and a former deputy director of Greenpeace USA.

Image Credit:

Two climate activists were set to go on trial in Massachusetts on Monday for blocking the shipment of 40,000 tons of coal to the Brayton Point power plant, a 51-year-old facility that is one of the region’s largest contributors to greenhouse gases. But in a surprise move, a local prosecutor dropped the criminal charges and reduced three other charges to civil offenses, calling climate change one of the gravest crises our planet has ever faced. We are joined by the activists, Ken Ward and Jay O’Hara, and the prosecutor, Bristol County District Attorney Sam Sutter. Days after they were to square off in court, the three now say they plan to march together in the upcoming People’s Climate March in New York City.


This is a rush transcript. Copy may not be in its final form.

NERMEEN SHAIKH: We begin today’s show with two climate activists who were arrested last year after they used their lobster boat to block a delivery of some 40,000 tons of coal to the Brayton Point Power Station in Somerset, Massachusetts. When the ship carrying the coal, named the Energy Enterprise, attempted to unload its cargo, it found a boat, named the Henry David T., in the way. On board were climate activists Ken Ward and Jay O’Hara. Their boat was kept in place by a 200-pound anchor and displayed a banner with the hashtag #CoalIsStupid. Soon after Ward and O’Hara arrived, they called the police to report their direct action.

JAY O’HARA: Anchor’s down here. Anchor’s [inaudible] off of Brayton Point.

KEN WARD: So, do you want to do the honors? I’ll call the Somerset police right now.

JAY O’HARA: I’d like you to do it, to be honest. I’ll record.

KEN WARD: What am I saying?

JAY O’HARA: Ken’s just going to call the Somerset police to let them know that we’re here, let them know that this is a nonviolent protest, this is a purely peaceful protest, that we are intending to do what’s right for this planet and prevent this coal from coming in today.

KEN WARD: Hi. This is Ken Ward. And I wanted to let you know I’m on board the boat, the Henry David T. We’re anchored off of the Somerset—of the pier at Brayton Point. And I wanted to just—sure. It’s Ken Ward. We’re on a boat, the Henry David T. We are anchored off the pier at Brayton Point. And I wanted to let you know we’re conducting a nonviolent, completely peaceful protest against the use of coal, and we’ll be completely cooperative.

AMY GOODMAN: That’s Ken Ward and Jay O’Hara speaking on May 15th, 2013, as their lobster boat blockade successfully blocked a shipment of coal to the Brayton Point power plant, a 51-year-old facility which is one of the region’s largest contributors to greenhouse gases.

NERMEEN SHAIKH: Well, on Monday, more than a year later, Ward and O’Hara were due to appear in court to face charges stemming from their act of civil disobedience. But in a surprise move, the Bristol County, Massachusetts, district attorney, Sam Sutter, announced he had instead dropped their criminal charges and reduced three other charges to civil offenses. This is Sutter speaking just outside the courthouse.

DISTRICT ATTORNEY SAM SUTTER: The decision that Robert Kidd and I—that’s the assistant district attorney who handled this case—reached today was a decision that certainly took into consideration the cost to the taxpayers in Somerset, but was made with our concern for their children, the children of Bristol County and beyond, in mind. Climate change is one of the gravest crises our planet has ever faced. In my humble opinion, the political leadership on this issue has been gravely lacking. I am heartened that we were able to forge an agreement that both parties were pleased with and that appeared to satisfy the police and those here in sympathy with the individuals who were charged. I am also extremely pleased that we were able to reach an agreement that symbolizes our commitment at the Bristol County District Attorney’s Office to take a leadership role on this issue.


DISTRICT ATTORNEY SAM SUTTER: Thank you. ... So that’s very inspiring to me, and I will carry that with me in my heart. Thank you.

REPORTER: Will you be a model for across the country?

DISTRICT ATTORNEY SAM SUTTER: Well, I certainly will be in New York in two weeks, how’s that? And I’m walking around with Bill McKibben’s article from Rolling Stone a couple of months ago. How do you like that? So, you know where my heart is.

AMY GOODMAN: Yes, that was the Bristol County district attorney, Sam Sutter, who will join us soon from Providence. But first we’re joined by the two climate activists who carried out the lobster boat blockade. They’re joining us here in New York. Ken Ward is a longtime climate activist, co-founder of the National Environmental Law Center, former deputy director of Greenpeace USA. And Jay O’Hara is a Quaker and a sailmaker from Cape Cod, Massachusetts.

We welcome you both to Democracy Now! Jay, let’s start with you. What inspired this action? Talk about how you actually accomplished it last year in May.

JAY O’HARA: Well, I think the inspiration for this is many of us have this huge weight on our hearts, knowing that this crisis is bearing down on us. And almost two years ago in October, Ken and I both ended up at a vigil in downtown Boston, kind of on the eve of Hurricane Sandy, and Ken proposed the idea that it was time to take direct action to stop coal from being burned in Massachusetts. And it seemed—my heart kind of leapt with joy at that first mention of it, and it was clear that that was the work that, for us, we needed to do.

NERMEEN SHAIKH: And, Ken Ward, you’ve been a longtime climate activist. Why did you decide to take this direct action last year? Why did you think it was necessary then?

KEN WARD: Well, nothing else is working. I mean, a lot of us have been doing this through—I mean, one of the things we had to argue—or, would have argued, had we gone to trial—is that we’ve pursued all legal available means to try to address the problem. I mean, we’ve been doing lobbying and public education and a whole set of things for a long time. None of those things have worked. It’s just as—I mean, the trajectory hasn’t changed. So, in terms of how do we change politics, the thing that seemed needed is this, is direct action.

AMY GOODMAN: And so, why did you focus on this coal plant and take the action you did with the lobster boat? Explain how that happened.

KEN WARD: Well, it’s—I’m from New England. This is the biggest visible source of coal burning in New England. And we picked it partly because it is visible—you can see the plant—and partly because it’s coal, and it’s coal coming by ship, so there was a means. I mean, there was a way to interpose ourselves between the plant and the coal. So all of those things are what suggested it.

AMY GOODMAN: Were you concerned about your safety?

KEN WARD: Not physical safety, in the sense of I think—we took very careful precautions. Jay knows much more about this than I do, but we took a number of steps, with several months of planning here, to make sure that we were safe, nobody else would be endangered. Maybe a little question afterwards about the strength of the parts of the ship, but we thought we—

NERMEEN SHAIKH: So, could you explain, Jay, exactly what you did?

JAY O’HARA: Yeah. So, on the morning of May 15th, 2013, we—after a short prayer meeting on the docks in Newport, Rhode Island, we motored our boat, the Henry David T., up Narragansett Bay.

AMY GOODMAN: And the Henry David T., how did you come up with the name?

JAY O’HARA: We knew we needed to do some rechristening of the boat, and it was pretty clear that Henry David Thoreau would be a good example for us as we went into this work. We motored up and dropped anchor in the ship channel at Brayton Point, putting ourselves kind of right off the pier where the Energy Enterprise would be attempting to dock. We had dropped a really large anchor, so that we were immovable, called the police, let them know we were there, and then waited.

AMY GOODMAN: And then?

JAY O’HARA: Well, after several hours, eventually the Coast Guard arrived. The ship arrived. Somerset police arrived. The Coast Guard boarded our boat, and through a number of different attempts to get us out of the way, we decided we would comply with their order, after having been threatened with some very, very serious and hefty fines. And then we spent most of the day trying to ourselves haul up the anchor and then waiting for the Coast Guard to say, "Well, you can’t do that. We have to wait for us and have to wait for this ship to arrive. We have to wait for the state police dive team to arrive." And so, between the anchor being stuck on the bottom and some, I’d say, bureaucratic SNAFUs, we ended up being able to block the shipment for the entire day.

AMY GOODMAN: And what were you charged with?

JAY O’HARA: We were charged with four charges: disturbing the peace, conspiracy to disturb the peace, negligent operation of a motor vessel and a failure to act to avoid a collision of a boat.

AMY GOODMAN: And what did you face?

JAY O’HARA: Our lawyers told us that all those charges combined could have maximum sentences of a couple of years.

NERMEEN SHAIKH: Were you at any point concerned, Ken, that the Coast Guard may detain you?

KEN WARD: We were surprised that we weren’t detained. But after, after the Coast Guard got on board, it was a very amicable—it was almost along a conversation. And they said right off the bat that they were primarily concerned with our safety, the safety of everyone else on the boat, and moving us. And they weren’t interested in law enforcement in the traditional sense of—it didn’t make sense to them—in essence, it didn’t make sense for them to remove us, because then it would be harder to get the boat out of there.

JAY O’HARA: And I would say, I mean, emblematic of that, we were at some point making jokes with them. They were showing us how to use the radar. They were, as we were trying to raise the anchor, holding on to our life jackets to make sure we didn’t fall overboard. So it was a very friendly, amicable interaction between us and the Coast Guard.

AMY GOODMAN: I want to bring in Bristol County District Attorney Sam Sutter. On Monday, as we said, in a surprise move, he dropped the criminal charges and reduced three other charges to civil offenses against Jay O’Hara and Ken Ward. District Attorney Sam Sutter is joining us from Providence, Rhode Island. DA Sutter, can you talk about your decision to drop these charges?

SAM SUTTER: Well, I can tell you that I started wrestling with exactly how I was going to accomplish the various goals that I had on this case as we got closer to trial, and actually reached the decision over the weekend through several discussions with some top people in my office, all of whom, I believe, share my views on climate change.

AMY GOODMAN: And so, talk more about what it is you discussed, what weighed into your decision, and why you’re so concerned about climate change. I mean, this is very unusual for a DA not only to drop the charges like this, but then to make such a dramatic announcement as you did when you came out of the courthouse, I think very much blowing away the very activists who you were about to try.

SAM SUTTER: Well, first about the decision, and then about my point of view and whether it was unusual or not. So, we thought about reporting part of the case to the appeals court, because we were not sure that the criminal court had jurisdiction of the motorboat charges. But that was not met with a positive reception, really, by either the judge or the defense attorneys. So then we had to try to come up with a resolution of the case that met several concerns—obviously, number one, my duty to uphold the law. So I can be in great sympathy with the protesters, but I do have a duty to uphold the law. Secondly, the interests of those in Somerset who had to foot the bill. That’s the taxpayers of Somerset. But then, finally, my moral position on this issue. So, through a very open discussion, which I like very much, there was a synthesis, and we came up with what I thought was really the ideal resolution. This was an act of civil disobedience, so this should be treated as a civil infraction. And I was extremely pleased when we broached the idea with the defense attorneys and they embraced it. And after that, it was simply a question on Monday morning of determining what was a fair figure for the restitution. Once again, the defense attorneys showed great reasonableness. So, I thought that aspect of the case and what we did was not unusual. I thought that was prudent, reasonable and wise.

The second part, though, the decision to walk out and give the short speech that I did. I thought about, when I did this, what one of my colleagues did, not that I agreed with that, but it was a bold move, when Bill Bennett, district attorney in Springfield, after the people of Massachusetts voted to decriminalize marijuana by a two-to-one margin, he dismissed all the pending possession of marijuana cases in his office. Now, I’m not saying that I agreed with that decision, but that’s the kind of move that I have seen district attorneys make that’s bold. And that guided me, to some extent. And so I decided to go out and give a short speech about exactly why I made the decision that I did and state my position on climate change, which I think is in congruence with those of Mr. Ward and Mr. O’Hara.

NERMEEN SHAIKH: And, Dean Sutter [sic], can you—sorry, District Attorney Sutter, can you explain what kind of response you’ve received, both to your decision as well as to your speech outside the courthouse?

SAM SUTTER: Well, it’s been a humbling response and an inspiring one. I don’t think I’ve ever received—maybe the night that I won district attorney, I might have received cheers that loud and that energetic, but it was just a wonderful, wonderful feeling. And the response since, all the requests for interviews, it really has kind of taken me aback, because I think that my position is a reasonable one in view of the data that I’ve looked at, the conversations that I’ve had with individuals more expert than I am. We’re at a crisis point. And I do believe—with all respect for the political leadership, I do believe that there are not enough political leaders speaking out boldly on this issue. And I do hope that what takes place in New York next weekend is similar to some of the great protests, marches that have taken place within my lifetime, from Selma to Montgomery, to the marches on Washington to end the war in Vietnam, to the most—one of the most recent, the million people who gathered in New York in 1983 that clearly had an impact on Ronald Reagan to move him to the point where he had the discussions that he did with Mikhail Gorbachev in Reykjavik. I think that’s the goal on September 20th and 21st, and I plan to be a part of it.

AMY GOODMAN: So, you’re talking about this march on September 21st, the major climate march that’s going to be taking place here as people at the U.N. are weighing the issue of climate change.

SAM SUTTER: That’s correct.

AMY GOODMAN: Talk about, in your life, what has influenced you most on this issue. And where does that leave the coal plant that is so significant in your county, the Brayton Point coal plant?

SAM SUTTER: Well, Professor McKibben has certainly influenced me. I remember beginning to read about his books and his insights back in the late 1980s when I was living on Cape Cod. I tried to get involved in some environmental causes then. I’ve been a passionate environmentalist from the time I became an adult. So, the influences are what I read, the shows I watch on television. I watched the Years of Living Dangerously, for example. I saw a program last weekend or two weekends ago about deforestation in Indonesia. So, those are some of the influences. What was the second part of your question again?

AMY GOODMAN: Talking about the influences, and also, where does that leave the coal plant in your county, in Bristol County, that Jay and Ken were protesting?

SAM SUTTER: Well, I think we have to accelerate—thank you, yes. I think we have to accelerate the transition from fossil fuels to renewable energy, to green energy. I mean, as I read in Professor McKibben’s article in Rolling Stone, on a sunny day, Germany is getting half of its energy from solar. On a normal day, Texas is getting a third of its energy from wind. Those are the kinds of situations that need to take place globally. And to the extent that I have a forum, I’m going to speak out about this. And to the extent that my office can be a leader for state agencies, district attorneys on this issue, that’s what I’m going to try to do.

NERMEEN SHAIKH: But is Brayton Point now scheduled to close in a couple of years? Is that right? Or a few years?

SAM SUTTER: Well, I think that Mr. Ward and Mr. O’Hara know more than I do about this, but the last I heard was 2016, 2017, which frankly isn’t soon enough. I’d like to see that plant closed quickly, as I would like to see Pilgrim nuclear plant closed quickly.

AMY GOODMAN: Do you hope that the decision you’ve made will embolden other climate activists to challenge the coal plant and the whole issue of climate change overall?

SAM SUTTER: Well, that’s a question I have to answer very carefully, and I’ve been asked that question—excuse me—many times since Monday. And what I say is this: I have a great sympathy with what these two gentlemen did, but I do disagree with their action, obviously, because it broke the law. We reached a perfect resolution of the case, in my opinion. So, to say that I agree with their position, but disagree, as the district attorney, with their action, I think is completely consistent. So, am I encouraging more lawful protests and demonstrations? Emphatically yes. Am I encouraging more unlawful ones? No, I’m not.

AMY GOODMAN: What about that question, Ken, of what should be happening to this plant?

KEN WARD: Well, this summer, we learned that the West Antarctic ice shelf is in an unstoppable collapse, which means 10 feet of sea-level rise. That, to me, is really all we need to know. I mean, it’s a signal event. Everything from here—we’re in the downslope. We should therefore be taking emergency actions everywhere we can. And the very first emergency action is to stop burning coal. So, yes, the plant owners of Brayton Point, although it’s now being sold again, did announce that the plant would be closed in 2017. But that’s not soon enough. It should be shut immediately—I mean, within a year. We should be engaging in an emergency shift to renewables right away. And that should be the top of our political agenda.

AMY GOODMAN: And Jay O’Hara?

JAY O’HARA: Well, and I think one of the interesting things is that this plant is scheduled to close currently, but that’s just on the company’s own prerogative, and there’s no legal barrier to continuing to burn coal in Massachusetts. So, there has not been a policy shift significant enough to actually put a final stop to burning coal in Massachusetts, and that’s the sort of action that needs to be taken if we’re going to really solve this problem.

AMY GOODMAN: Do you have something you’d like to say to the district attorney? Did you expect this was going to happen on Monday?

KEN WARD: Well, I’m hoping for an opportunity to talk—

AMY GOODMAN: You can look right into that camera when you—

KEN WARD: Where is he? All right, all right. We were thinking, actually, we should drive back from New York to wherever you are and take a picture with you, inviting people to come to New York to the march with us. Maybe you want to do that. But I’d also like an opportunity at some point to meet you in person again and tell you what we think, which is both to be thankful, but I think that—I think there’s a lot of people in positions of authority, political leadership, law enforcement leadership, who might share your opinions on climate, but nobody else has linked it, as you did, to an actual decision in a way that is powerful. This is quite powerful. We are where we are, not just because of what we did, but because of how you responded to it. And I think that you’ve taken a great and courageous step and really should be applauded for it. Or I applaud you for it, sure.


SAM SUTTER: Well, I’m inspired by those words. I look forward to seeing you in New York City. And I look forward to more dialogue. I agree with you about the coal-burning plant. And I just look forward to working together with the activists as much as I can and in crafting stands for my office that put us in a leadership role. There are many in my office that share my views—certainly Robert Kidd, Roger Michael, with whom I worked on this case, Greg Miliote, director of communications. So, this is a first step.

AMY GOODMAN: Might you be marching together at the climate march on September 21st?

SAM SUTTER: It’s certainly possible, if they call me. I’ll give them my cellphone number.

JAY O’HARA: Sounds like a plan.

AMY GOODMAN: Well, we’ll leave it there. And we certainly will be out there covering that march on September 21st, the climate march here in New York. That does it for this segment, but though it certainly doesn’t do it for continuing to cover these issues. Of course, Democracy Now! will be moving on from covering what’s happening at the U.N. and the climate march to going to Lima, Peru, for the U.N. climate summit in December. I want to thank you, Sam Sutter, district attorney in Bristol County, Massachusetts; Jay O’Hara and Ken Ward, for joining us.

KEN WARD: Thank you.

JAY O’HARA: Thank you, Amy.

AMY GOODMAN: This is Democracy Now!,, The War and Peace Report. When we come back, why is that spinning wheel of death, that circle that just spins and spins when you’re waiting for a website to load, appearing on so many websites today? We’ll talk about the Internet Slowdown. Stay with us.

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