Four receive sentence from Judge Schulman for 2019 coal train blockade charges
Left: Defendants and supporters gather during trial at Merrimack County Superior Court March 2022;
Right: Lawyers and defendants outside of Merrimack County Superior Court March 2022.
CONCORD, NH -- Four climate activists from No Coal No Gas were sentenced by Judge Andrew Schulman in Merrimack County Superior Court on Friday, May 13th, following their three-day jury trial in March of 2022. This decision comes after the jury found the four guilty of criminal trespass and railroad trespass during a Hooksett coal train blockade in 2019. Over 65 fellow activists supported the defendants in-person and online during the hearing. The 2019 train blockade was a response to the continued use of coal at Merrimack Station in Bow, New Hampshire - the last coal-fired power plant in New England.
Although the defense was prevented from bringing evidence at trial about both the broader climate justice movement and the history and efficacy of similar social movements, a theme running throughout the sentencing hearing was the broad movement context within which the four convicted activists were operating. The prosecution argued that general deterrence was not enough for these defendants because of their involvement in the No Coal No Gas campaign. Judge Schulman readily accepted the prosecution’s characterization of the power of that movement at sentencing, going so far as to accept that statements made in a No Coal No Gas campaign email update accurately represented their views and motivations, though none of the defendants were involved in drafting the message.
Attorney Logan Perkins addressed this during the hearing, saying “The state has made much of the idea that these defendants took action on Robie’s Bridge - two and a half years ago - as part of a movement, and that is certainly true. These defendants are part of a movement. [That fact] is significant and we would have welcomed the opportunity to tell you more about the significance of that in a competing harms hearing, or in a competing harms defense presentation in which we would have been permitted to discuss how the science of social change has clearly identified the power of nonviolent social movements to effect change where all other approaches fail. We asked permission to share this and were denied.”
Defendants at sentencing hearings are allowed to speak more freely, addressing whatever topics they choose to share with the judge before a sentence is ordered. On Friday, the four convicted activists spoke about the broader movement context, which they were prevented from sharing with the jury. Their statements focused on community, hope, grief, and love, as well as the structural barriers to system-level changes in our economic and energy systems.
“We also hear a lot about how climate change is caused by humans,” said Dana Dwinell-Yardley, “This is technically true — but blaming “humankind” in a broad swath for the damages caused by climate change puts responsibility everywhere and nowhere. Humankind at large is not the problem. Very specific humans making very specific choices are the problem. Our communities — especially low-income communities, people of color, and Indigenous people — are suffering right now, not because of people like me and my codefendants, but because of lawmakers, governments, and corporate leaders. These select few people in power choose over and over to prioritize profits and personal gain instead of taking the drastic, rapid action needed to halt the climate catastrophe.”
Defendant Johnny Sanchez reminded Judge Schulman that in one hour of burning coal at full capacity, Merrimack Station emits as much carbon as the average American does in 26 years. Sanchez continued, “Does justice look like allowing coal to still be burned in New England when we know the consequences? When we know that it contributes to higher rates of lung disease? Cardiac disease? To cancer? When we know it contributes to rapidly increasing global temperatures? To food insecurity? To fires? That is why, back in December of 2019, I believed, as I do right now, that every second that we stopped those trains from delivering thousands of tons of harmful and unnecessary coal was my moral obligation.”
Attorney Kira Kelly spoke to the purpose of sentencing: rehabilitation and making the community whole: “What does it mean to refuse to accept a problem that nobody has solved? If letter writing, recycling, and voting were enough, I think we’d actually be fine by now. But, there’s a danger to pretending that it’s enough to continue taking these actions and expecting different results…It’s not about repairing the community when the injustice already exists, when injustice is written into the fabric of this country and always has been and our communities have never been whole to begin with. My clients are doing the best they can to make our communities whole.”
Defendant Daniel Flynn’s statement focused on the harms caused by the continued operation of Merrimack Station and the continued inaction of those who could force its closure in the interests of public health, ratepayer savings, and climate stability. “As an individual I don't have vested regulatory or legislative authority… I only have my voice today, and my body in Hooksett in 2019, and faith that there are others like me who are filled with the same grief and determination as I am… And I also firmly believe that the true beneficiaries of any restitution from any party in this matter should be the residents of Bow, New Hampshire and surrounding towns with documented, deleterious health conditions that have been reasonably linked to the continued operation of the Merrimack Generating Station.”
Attorney Logan Perkins argued that the very urgency of the climate crisis and the proven methods of social movements were enough evidence to warrant nonviolent action on the part of defendants. Schulman and Perkins debated the relevance of a number of moments in social movement history, and the judge insisted that such tactics were acceptable in the fight for voting rights for Black Americans in the 1960s, but not warranted in this instance. Perkins replied, “This is a crisis right now and the government is not responding. The reasons that governments are not responding are because they are captured by the coal industry, by the fossil fuel extraction industry, and by a business-as-usual mentality that has made it politically unviable and unpopular to take necessary, urgent action to ensure a livable planet for the rest of us. Just like those who held political power in the Jim Crow South did not have the political will, ability, or traction to make the necessary changes until there was a social movement in place to force the conscience of the world to address the crisis that was unfolding.”
In his allocution statement, defendant Jonathan (Jay) O’Hara described government and regulatory inaction driven for more than a generation by a corporate climate denial campaign - funded significantly by railroads - is an attempt to maintain the billions of dollars of annual revenue they collect for transporting coal and other fossil fuels. O’Hara shared a graph that Judge Schulman prevented him from entering into evidence during the jury trial. The image, published by the National Oceanic and Atmospheric Administration in 2014, depicts average global temperature for the last 13,000 years.
O’Hara concluded his statement, “If you look at this reality and find that the situation of injustice is the unprecedented climate catastrophe unfolding, and that it is the corporations who have prevented meaningful action, and ‘no proper purpose would be served by imposing any condition’ then you should find that my conviction is sufficient and hand down an unconditional discharge. If, however, you find that the injustice here is that Pan Am railways, a company worth 700 million dollars, was inconvenienced for several hours in December 2019 by well-meaning citizens attempting to right the wrongs of decades of delay and denial, then in these times you should uphold those decades of precedent of climate inaction and sentence me to whatever extent the law allows.”
Defendants and their attorneys arrived in court prepared to explain the gravity of the climate crisis, describe the role of railroads in funding decades of climate denial and inaction to protect their profits, and help the judge understand the historical, present, and relevant facts that make movements to stop the climate crisis effective. While Judge Schulman allowed them to speak, he had arrived in court with his decision made and written out in detail and issued the following sentences for convictions at jury trial on trespass on a railroad:
Dana Dwinell-Yardley and Daniel Flynn: 4 months in the county jail, no credit for time served, suspended for 3 years with good behavior.
Johnny Sanchez and Jonathan O’Hara: 6 months in the county jail, no credit for time served, all suspended for 5 years with good behavior.
Restitution to the PanAm Railways totaling $6,215
Schulman ordered O’Hara and Sanchez to pay a larger portion of the restitution based on his perception of leadership in the action and for keeping the train stopped for longer, respectively.
Fines from the state totaling $5,580
$1,500 plus 24% court costs for O’Hara
$1,000 plus 24% court costs for the 3 others
“Good behavior” defined as:
No felony, misdemeanor, or major traffic violations
No collaboration, colluding, or soliciting of others to engage in acts resulting in felony, misdemeanor, or other “crimes.”
Staying 100 feet away from the Merrimack Station
Applies to all jurisdictions (not only conduct in New Hampshire)
Judge Schulman dismissed the criminal trespass conviction and declined to require any fees for public agency response or railroad police.
Marisa Keller, a supporter in Vermont who watched the sentencing hearing online reflected afterward: “Judge Schulman handed down a sentence today that exemplifies the U.S. "justice" system: applying the letter of the law to protect the coal and rail industries while telling us that we should trust in the government and regulatory bodies to rescue us from the harm they cause. This kind of "justice" is what has led us into the crisis we now face.”
Kendra Ford, a Unitarian Universalist minister who lives in Portsmouth and serves a congregation in Exeter, NH was present in the courtroom and is active in the No Coal No Gas campaign. After the hearing, she gathered the defendants and their supporters under a nearby tree to reflect on the outcome and share their responses. Ford remarked, “Our legal system doesn’t seem to be able to respond to current circumstances. The urgency of climate collapse is terrifying, and yet the court’s decisions today is focused on protecting profits for companies in the fossil fuel industry. The judge seemed more concerned that these non-violent activists disrupted profits than the fact that the continued use of coal is causing irreparable harm to the planet.”
When asked for his response to the hearing, defendant Jay O’Hara said, “I came here today hoping for justice, but not expecting justice, and I got what I expected. Judge Schulman’s sentence is absolutely clarifying about the state of climate action in the country. If a self-proclaimed sympathetic judge can’t look beyond the status quo and the absolute protection of the industries that are actively endangering all of our futures, then we are in dire straits. Today four convicted activists, two lawyers, and a crowd of people from all over New England were undeterred by these sentences. It’s this fortitude and grounding in a sense of justice and rightness that will power us to continue to do what must be done.”
Defendants and their attorneys are not ready to comment on their next steps and whether they will pursue an appeal or other legal action.
The No Coal No Gas campaign, launched in 2019 with support from the Climate Disobedience Center and 350 New Hampshire Action, set its sights on Merrimack Station upon recognizing that coal is the worst and dirtiest fossil fuel source for electrical generation, and that this power plant is the last of its kind in New England. The campaign’s goals include building community, showing what is possible when we take collective action, and shutting down the coal-fired power plant.
For more information about the campaign to end coal in New England, visit nocoalnogas.org.
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Supporting Documents
The State’s sentencing recommendations
State’s sentencing memo (for Dana Dwinell-Yardley); memos for each defendant are nearly identical; we will provide links to the other three on request
Written versions of allocution statements delivered by defendants:
Sentencing order
A written copy of the sentencing order was not made available to the defense at the end of the hearing
No Coal No Gas will make this order available when the defense receives it.
