By: Sarah Johnson
When looking at the United States nowadays, it is full of people marching, protesting and advocating for causes they care about. Here are some significant protests we have seen over the last few years to remind us just how much people have been speaking up: the Women’s March, the Dakota Access Pipeline, Charlottesville, Ferguson, one of the many other Black Lives Matter protests, March for Our Lives, ICE protests and #FridaysForTheFuture.
Over the last few years, I have written a couple times about the anti-protest legislation trends we have seen in state legislatures. For an in-depth look at what protesting has meant in the United States over the years, why it is important and a look at the first set of legislation I wrote about, read Protesting: Sparking change or putting yourself in danger? I then followed this post with a brief update on how some of the legislation in that post ended up. We haven’t seen the amount or enthusiasm in protests dwindle over the last few years, more people are speaking up for more things they care about. This post primarily focuses on anti-environment protester legislation, how it started and what has been happening with the proposed and passed legislation.
Critical Infrastructure
First, the most important item to be familiar with in order to understand what is happening with this legislative trend is the definition of and idea behind “critical infrastructure”. Let’s look at the idea of “critical infrastructure” as it was put forth by one of the first anti-protest bills passed in Oklahoma (HB1123). This bill defined “critical infrastructure” as “One of the following [facilities], if completely enclosed by a fence or other physical barrier that is obviously designed to exclude intruders, or if clearly marked with a sign or signs that are posted on the property that are reasonably likely to come to the attention of intruders and indicate that entry is forbidden without site authorization.” The bill then listed facilities ranging from petroleum or aluminum refineries to water treatment facilities to transmission facilities used by a federally licensed radio or television station to crude oil or refined products storage and distribution facilities (pipelines are an example listed here).
Oklahoma passed and enacted HB1123 in 2017, igniting the “critical infrastructure” movement. This bill primarily increased penalties for protesters who trespass on and disrupt property containing a “critical infrastructure facility”. The protesters, if convicted of entering a property with the intent to damage, vandalize, deface or “impede or inhibit operations of the facility”, face a felony and minimum $10,000 fine. If a protester “tampered” with the facility, they face up to 10 years in prison and a $100,000 fine. Most alarming to many was the language in the bill that stated if an organization was “found to be a conspirator” in the trespass (protest) they would face fines up to $1 million.
The bill’s sponsor, Scott Biggs, “told the House Judiciary Committee on Criminal Justice and Corrections that the bill was prompted by oil and gas industry concerns arising from the Dakota Access Pipeline protests in North Dakota, which Biggs said resulted in significant property damage” according to the Tulsa World.
After this legislation passed, the American Legislative Exchange Council (ALEC) introduced their own model version of HB1123 in order to encourage state lawmakers to adopt similar ideas. ALEC’s website states that by “drawing inspiration from two laws enacted in 2017 by the State of Oklahoma, this Act codifies criminal penalties for a person convicted of willfully trespassing or entering property containing a critical infrastructure facility without permission by the owner of the property, and holds a person liable for any damages to personal or real property while trespassing.” ALEC has been successful promoting these ideas. Currently, nine states have enacted some form of this model bill into law: North Dakota, South Dakota, Oklahoma, Iowa, Louisiana, Indiana, Tennessee, Texas, and Missouri. Let’s take a look at these bills.
The Bills
In researching this post, I discovered the the US Protest Law Tracker, part of ICNL’s US Program, which has been following and tracking initiatives to restrict the right to peaceful assembly at the state and federal level since November 2016. Here is their map of relevant protest laws:
US Protest Law Tracker, ICNL’s US Program
I also made made my own map, showing all of the legislation relating to “critical infrastructures” and protesting. I’ll talk about four pieces of legislation that have gotten the most attention of these new sweeping “critical infrastructure” bills.
Louisiana: Louisiana passed their law in 2018. HB727 was drafted by Tyler Gray, the president and general counsel of the Louisiana Mid-Continent Oil and Gas Association. Since it went into effect in August of 2018, more than a dozen pipeline opponents have been charged. The bill states anyone convicted of the crime of “unauthorized entry of a critical infrastructure shall be imprisoned with or without hard labor for not more than five years, fined not more than one thousand dollars or both.”
Indiana: This bill, singed in May of this year, increases the penalties associated with protesting. The legislation provides that “a person who, not having a contractual interest in the property, knowingly or intentionally enters the real property of a critical infrastructure facility without the permission of the owner of the critical infrastructure facility or an authorized person commits the offense of critical infrastructure facility.” Trespassing, previously a misdemeanor, is now a Level 6 felony punishable by up to two and a half years in prison and a $10,000 fine. Property damage is now a Level 5 felony, punishable by up to six years in prison and a $10,000 fine. The bill also contains language stating that if one protestor is arrested for trespassing or damages, all other organizations and groups involved in the protest would be at risk of fines up to $100,000.
Texas: The Texas law was signed in June of this year. This bill criminalizes damage to critical infrastructure facilities, including facilities under construction, imposing a third-degree felony carrying a penalty of up to 10 years in prison. The bill states, “A person commits an offense if, without the effective consent of the owner, the person enters or remains on or in a critical infrastructure facility and intentionally or knowingly damages or destroys the facility.” Violators who “impair or interrupt” operations or who entered property with the intent to damage it will face a state jail felony, punishable by up to two years in prison.
Before the third Democratic 2020 presidential primary debate in mid-September, Greenpeace USA climbers formed a blockade on the Fred Hartman Bridge in Baytown, Texas in protest of fossil fuel. This action prevented the transport of all oil and gas through the Houston Ship Channel while they were suspended on the bridge, the largest petrochemical complex in the US. These protesters were the first people to be charged under HB3557.
South Dakota: South Dakota passed SB189 and SB190 in March of this year. These bills create new civil penalties for “riot boosting.” Riot boosting can be applicable to anyone who “directs, advises, encourages, or solicits other persons participating in the riot.” The laws also create a fund for law enforcement and emergency managers to pay the costs of policing pipeline protests. The penalties paid by people convicted of riot-boosting go into the fund, along with up to $20 million in additional cash from the pipeline owner.
In September, a judge granted an injunction on these two bills. The judge ruled that allowing the state to sue “riot boosters”, including on behalf of a third party, was unconstitutional. U.S. District Judge Lawrence Piersol wrote about the two bills, “Imagine if these riot boosting statutes were applied to the protests that took place in Birmingham, Alabama, what might be the result? Dr. King and the Southern Christian Leadership Conference could have been liable under an identical riot boosting law for the many types of damages which could have been claimed… for soliciting, advertising or encouraging another person to break the law.”
Final Thoughts
An article from Bloomberg details how oil and gas companies, including Koch Industries Inc., Marathon Petroleum Corp. and Energy Transfer Partners LP, have lobbied state legislatures to pass this type of legislation. These companies, whose Dakota Access project was the spark that lit the pipeline protests, effectively convinced legislatures to outlaw demonstrations near pipelines, chemical plants and other infrastructure to curb issues like Standing Rock before they can even start.
Vera Eidelman, staff attorney at the American Civil Liberties Union who has been busy suing states over these laws, had this to say, “These measures are deeply problematic: They are clearly targeting protests and particular types of protests, specifically anti-pipeline, pro-environment, pro-environmental justice. All of these laws are about silencing vigorous advocacy.”
When speaking about the Indiana bill, ICNL legal advisor Elly Page said, “We have organizations that are saying they’re really concerned about this project, but they’re worried now they can’t be involved in protests because it’s too big of a risk. If laws are being passed that make people want to stay home and not get involved, it’s concerning for the future of our country.”
It is clear that these bills target a specific type of protest and speech. These bills are limiting people’s right to gather and protest causes they truly care about, but at the same time, they try to limit business loss at the expense of protests. I understand why the corporations want them, but also why they are harmful to our society.
Cover Photo by Rodion Kutsaiev on Unsplash
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