by Nicholas Kusnetz at Inside Climate News
Bills to increase penalties for “impeding” the operations of a pipeline or power plant—in many cases elevating the offense to a felony—are pending in at least five states and have been enacted in 15 others.
Indigenous groups and opponents of the Enbridge Energy Line 3 oil pipeline replacement project protest its construction across northern Minnesota. Credit: Michael Siluk/Education Images/Universal Images Group via Getty Images
When Nancy Beaulieu’s Ojibwe ancestors signed a series of treaties with the federal government in the 19th century, one of the goals was to protect the land, she said. So she sees it as not just her right but her duty to protest the building of a major oil pipeline underway in northern Minnesota.
As an organizer for the state chapter of 350.org, Beaulieu has helped lead a campaign against the replacement and expansion of Line 3, which carries oil from Canada’s tar sands to the United States. Advocates say more than 200 protesters have been arrested as part of the campaign, and Beaulieu said she intends to be arrested herself as construction continues this spring.
But a bill currently pending in the state legislature threatens her right to do so, by increasing the penalties for trespassing on pipelines and other energy infrastructure.
“These are our own lands in some areas, ceded lands. We never gave up the right to hunt, fish and travel. So just because we don’t hold title doesn’t mean we cannot protect. That’s what treaties are all about, is that responsibility,” she said. The Minnesota bill would impose a felony offense carrying up to five years in prison for anyone who enters a pipeline construction site with “intent to disrupt” operations.
“They’re violating our treaties again,” she said. “They’re denying us our voice.”
The legislation is just one of a growing number of such bills, backed by the oil and gas industry, that are pending in at least five states and have been enacted in 15 others over the last four years, according to the International Center for Not-for-Profit Law. While the details vary state by state, the legislation in many cases imposes felony charges for trespassing and “impeding” the operation of pipelines, power plants and other “critical infrastructure.”
The bills emerged in 2017 after a pair of stinging losses for the pipeline industry. Activists had used civil disobedience and mass arrests to draw attention to the Keystone XL and Dakota Access projects, and the Obama administration eventually blocked both. States’ critical infrastructure legislation raised the stakes for protesters by increasing penalties for acts like blocking access to a construction site, in many cases converting the offenses from misdemeanors to felonies.
Some of the laws include clauses allowing prosecutors to seek 10 times the original fines for any groups found to be “conspirators.” Those bills have prompted concerns on the part of civil liberties advocates and leaders of groups like the Sierra Club, who fear they could be roped into trials and face steep fines for having joined with broader coalitions that include an element of civil disobedience.
Some advocates say they have been intimidated by the laws and have adjusted their tactics. But so far, there have been only a handful of arrests under the new laws—in Louisiana and Texas—and no one has yet been formally charged.
The nation’s leading oil industry groups have been among the most vociferous advocates of the legislation, and in several states, including Kansas this year, lawmakers have openly introduced the bills on behalf of industry lobbyists. Enbridge, TC Energy and Energy Transfer—the companies behind Line 3, Keystone XL and Dakota Access pipelines—have been some of the most active corporations lobbying for the legislation along with Marathon Petroleum, according to Connor Gibson, an independent researcher who has tracked the bills for Greenpeace.
Michael Barnes, a spokesman for Enbridge, said, “We recognize people’s right to express their views legally and peacefully and to engage in peaceful, nonviolent protests. We don’t tolerate trespassing, vandalism, or mischief, and Enbridge will seek to prosecute those individuals to the fullest extent of the law.”
The other companies did not immediately respond to requests for comment.
Kansas Gov. Laura Kelly, a Democrat, signed that state’s bill into law on Friday.
After President Joe Biden revoked the permit for the Keystone XL pipeline on his first day in office, activists have been pressing him to block construction of Line 3 in Minnesota and to halt the operation of the Dakota Access Pipeline, where the bills got their start.
On Friday, his administration said it would allow oil to continue to flow through Dakota Access as a lawsuit challenging its permits proceeds.
‘It Was Really Scary’
Months after protests against the Dakota Access Pipeline drew the nation’s attention to the Standing Rock Indian Reservation in 2016, an indigenous-led coalition began gearing up for another pipeline fight in Oklahoma. But just as activists announced the campaign, a state lawmaker introduced a bill that defined pipelines and a long list of other facilities as “critical infrastructure,” and increased penalties for trespassing on or damaging them.
Anyone who trespassed on a site with intent to damage or “impede or inhibit operations” faced felony charges with up to one year in prison and $10,000 in fines. The bill also included a provision that imposed 10 times the original fine on any organization found to be a “conspirator” with anyone violating the law.
The sponsor said he introduced the bill in response to Standing Rock.
“It was really scary,” said Ashley Nicole McCray, who led the pipeline fight in Oklahoma and is now an organizer with the Indigenous Environmental Network. McCray said she has given up using civil disobedience to fight oil and gas development, deterred in part by the critical infrastructure law.
The bill was quickly signed into law in 2017, and began to spread to other states. The American Legislative Exchange Council, which brings together corporate representatives and state lawmakers to write model legislation, adopted a version for its members to use.
The following year, lawmakers introduced a similar bill in Louisiana, where Energy Transfer, the company behind the Dakota Access Pipeline, was building another project. At a legislative hearing, the state’s top oil and gas lobbyist sat next to the bill’s sponsor and fielded many of the lawmakers’ questions about its details.
Louisiana’s governor signed the bill, and within days of when it entered into force, a group of activists were pulled out of a canoe and kayak close to a construction site and arrested by off-duty state law enforcement officers who were moonlighting for a private contractor hired by Energy Transfer.
A Stifling Effect?
While critical infrastructure bills have faced resistance and drawn hundreds of opponents to hearings, supportive state lawmakers have shown they will continue to introduce them year after year. A bill failed to pass in Ohio in 2018, but was reintroduced the following year and eventually passed in December.
This was the first year such legislation was introduced in Kansas, a state that the existing Keystone pipeline crosses. Sen. Mike Thompson, a Republican, introduced the bill on behalf of the American Fuel and Petrochemical Manufacturers, a trade group that represents many of the country’s largest oil companies.
At a hearing in the state House of Representatives in March, a lobbyist representing the industry group said his client had written the bill. A lobbyist for the American Petroleum Institute also spoke in favor.
Among those who opposed it was Rabbi Moti Rieber, executive director of Kansas Interfaith Action, who said later in an interview that civil disobedience can be a powerful tool for people of faith who “want to witness against the damage to creation that’s implicit” in fossil fuel infrastructure.
“People understand that there’s always the possibility of prosecution, but there’s a difference between that” and a felony, he said. After being amended, the final bill imposes misdemeanor charges for trespassing, but the charge rises to a felony if prosecutors can prove intent to “impede” operations, probably not difficult if a protester tries to block construction equipment. “We believe that it cannot help but have a stifling effect on the ability to use direct action as a tactic in the fight against climate change,” Rieber said.
Thompson said that in introducing the bill, he did not intend for it to target peaceful protesters, even if they are blocking work on a pipeline, but to deter serious damage.
“You can protest, but you shouldn’t unreasonably do things that border on the criminal,” he said. “There’s always a gray area and it always comes down to the courts making the final decision.”
Scott Lauermann, a spokesman for the petroleum institute, pointed to a few instances where protesters have closed valves on pipelines or vandalized equipment, saying such acts “demonstrate the need for additional measures to prevent actions that damage or disrupt the operation of these facilities while protecting the right to engage in peaceful discourse.”
The American Fuel and Petrochemical Manufacturers did not respond to requests for comment.
After hearing the concerns of opponents, Kansas lawmakers amended the bill and included language saying that it “protects the right to peacefully protest” for everyone in the state, including citizens of sovereign tribes. But Rep. Christina Haswood, who is of Diné descent and represents a district with many Native Americans, said the new language did little to change the legislation’s effect.
“When you look into the history of this bill and where it came from, and similar language that’s being proposed across the states, it’s very apparent to see that it’s coming from the Standing Rock protests and Keystone XL pipeline,” she said. “And I know a lot of indigenous people from my community and across the state have participated with or supported that protest.”
In Arkansas, both houses of the legislature have approved a similar bill, though the Arkansas House still needs to approve amendments from the state Senate.
Natalie Cook, a Sierra Club organizer in Minnesota, said the legislation in that state is unlikely to pass as a stand-alone bill, but that it could be included in an omnibus or budget package. A version of the bill was passed in 2018, but vetoed by then-Gov. Mark Dayton.
Few Arrests So Far
While felony critical infrastructure laws have now been in place for years, prosecutors have yet to use them. McCray, the Oklahoma indigenous activist, said she and others were prepared to get arrested under the new law in order to challenge its constitutionality in court. But the one time they tried to get arrested by blocking construction equipment, she said, law enforcement officers did not take them into custody.
In Texas, a group of Greenpeace activists were arrested under the new charges in 2019, after they climbed a railing and dangled off a bridge over the Houston Ship Channel. But prosecutors later downgraded those charges to misdemeanors.
In Louisiana, the local district attorney has yet to formally charge the protesters who were arrested in 2018; under Louisiana law, he has four years to do so, according to Pamela Spees, a senior staff attorney with the Center for Constitutional Rights.
Spees is representing several of those Louisiana activists and other advocacy groups in a federal lawsuit challenging the law as unconstitutional. One of the plaintiffs is RISE St. James, an advocacy group of mostly Black women living in the region known as “Cancer Alley,” where dense petrochemical development has contributed to high levels of pollution. The group has been trying to block a proposed petrochemical complex, and in 2019 learned that the site contained a cemetery that was likely to hold the remains of slaves, who very well could have been the women’s ancestors. The activists began to visit the site, which it turned out was also crossed by a pipeline.
“That ups the ante because it’s not just a trespass, it’s a critical infrastructure trespass,” Spees said. The women have avoided charges so far, but Spees said the case reveals how damaging the laws can be. “They think they’re exercising their right to visit a cemetery of likely their ancestors, and you’re faced with a possible felony, which is very scary to people. It’s having an effect here, I mean that’s clear.”
An earlier version of this article incorrectly described the status of a bill in Kansas. Gov. Laura Kelly, a Democrat, signed the bill into law on April 9.