Dana Dwinell-Yardley of Montpelier, and 18 other climate justice activists, appeared virtually before Judge Edwin Kelly on Thursday, Jan. 14, in Concord District Court, in Concord, New Hampshire, for provisional sentencing en-route to trial by a jury of her peers under Rule 21a. Dwinell-Yardley and her co-defendants are charged with criminal trespass following a September 2019 protest at the Merrimack Generating Station in Bow, New Hampshire, which is the last coal-fired power plant remaining in the region without a shutdown date.
“I traveled to Bow, New Hampshire, 16 months ago because the speed of bureaucracy is not going to cut it when we have a mere seven years left to avert climate catastrophe,” said Dwinell-Yardley when she spoke before Judge Kelly. “I was there, with my body, to say that burning coal in 2019 — and 2020, and 2021 — is unnecessary and immoral in the face of the massive and well-documented climate crisis that we are in.”
In a nearly three-and-a-half-hour session, Judge Kelly heard an offer of proof and sentencing recommendation from the prosecution, a counter recommendation from the defense, and up to five-minute allocutions from 18 of the 19 defendants who are part of the No Coal No Gas campaign to close Merrimack Station and end the use of coal in the region.
Additional defendants from Vermont include Emma Schoenberg and Kent Overstreet of Burlington, Marcy Kass of Williston, Erik Krauss of Hartford, and Laura Simon of Wilder.
The Reverend Kendra Ford of Portsmouth, New Hampshire, spoke of her commitment and motivation to take action to end the burning of coal in the region. In her testimony, Ford shared some of the challenges of parenting a 7-year-old as the climate becomes more unstable.
“With a young child who is immersed in the world, we have to navigate the pain of talking about the harm and losses of climate change all the time,” she said. “He sees and experiences the effects on a daily basis. We all do, but mostly we can get busy and ignore them. He doesn’t. He keeps calling us back to the world as it is. And I can see and feel the losses that are coming.”
“That’s what brought me to Bow, New Hampshire in September 2019,” Johnny Sanchez of Orono, Maine, told Judge Kelly. “A search for any semblance of a reassurance that everything wasn’t already a forgone cause, that there were people who hadn’t already given up hope. What I found was a community of people ready to step into their courage and make their voices heard. Those peaceful voices rose up in song, in the face of riot gear and helicopters.”
That vision of community and nonviolence echoed throughout the proceedings (sometimes literally, with audio trouble on the telephonic court system), as activists shared facts about global climate change and the coal industry, mingled with personal stories about what motivated them to participate in the September 28, 2019, protest.
Concord City Prosecutor Attorney Tracy Connolly, however, painted the activists as dangerous, proposing stiff sentences for nonviolent trespass on the coal plant’s property. Attorney Connolly recommended at minimum $1,000 fines, with $500 suspended for a year of “good behavior.” Activists with alleged breaches of bail conditions or other alleged violations were recommended higher fines and 30 or 60 days of jail time, suspended pending a year of “good behavior.”
In light of the impacts of catastrophic global climate change, defense attorney Kira Kelley argued, “That’s the important question that we keep raising … what IS bad behavior in this context?” Kelley and other defense attorneys argued that all defendants should receive unconditional discharge, suggesting that the record of a criminal conviction is sufficient sanction for this act of community defense.
Attorney Connolly’s tough sentencing recommendation stood in marked contrast to her offer to other activists involved with the 2019 protest, many of whom took an offer of “placed on hold without a finding” for as little as two months of “good behavior.” These 19 defendants refused that offer, asserting their right to a trial by jury.
Marla Marcum, of the Climate Disobedience Center, who has been working with the defendants since their arrest, said, “the prosecution’s sentencing recommendations are typical of the heightened penalties often faced by defendants who choose to exercise their full constitutional right to a trial by jury. These sentencing recommendations are a reminder that justice is out of reach for so many in the criminal legal system, especially those Black, brown, Indigenous and low-income people who are systematically pressured to plead guilty and resolve their cases without the benefit of a trial.”
Jeff Gang, an Eagle Scout from Somerville, Massachusetts, recalled years of working to avert climate catastrophe and how the experience led him to Bow on September 28, 2019, “I didn’t arrive at this decision lightly. Since my college days, I have been involved in efforts to get our government to act on climate change, and it has shaped my entire career. I worked for years professionally to help elect climate champions. Then I worked in green finance, trying to help move money toward climate solutions. I later worked on projects with the Sierra Club and League of Conservation Voters to educate and inform people and help make sure they cast their votes.
“In each of these avenues, I saw some signs of hope: an election we won, or another cosponsor signed-on to a legislative solution, or billions of dollars slated for renewable energy.” Gang continued, “I’m not giving up on these avenues of change, but none of them has been enough — we’re still drastically off track from what science says we must do.”
New Hampshire statute permits the potential for rehabilitation as a grounds for sentencing. In making her case for unconditional discharge, defense Attorney Logan Perkins closed saying, “My client does not need to be rehabilitated from his determination to fight climate change.”
Merrimack Generating Station continues to operate, propped up annually by tens of millions of dollars of subsidizing “forward capacity payments” that are taken from electrical ratepayers and funneled through ISO-New England, the region’s energy grid operator. On February 8, Merrimack Station will bid again for subsidies to operate into 2025.
Editor’s Note: Dana Dwinell-Yardley is the layout designer for The Bridge.