Lawmakers in Ohio and Iowa are considering bills that would create new penalties for people who attempt to disrupt the operations of “critical infrastructure” such as pipelines. The bills make the states the latest of at least eight to propose legislation aimed at oil and gas industry protesters since Donald Trump’s election.
The bills were proposed less than a week after the right-wing American Legislative Exchange Council, which has close ties to the fossil fuel industry, finalized a model policy titled the “Critical Infrastructure Protection Act,” which calls for more severe punishment for those who trespass on facilities including oil pipelines, petroleum refineries, liquid natural gas terminals, and railroads used to transport oil and gas.
Iowa is one of four states through which the Dakota Access pipeline passes, and it was a center of anti-pipeline protests in 2016 and 2017. The state saw several incidents of property destruction carried out by pipeline opponents, but more common were trespassing arrests during demonstrations meant to halt construction.
The Iowa bill — developed by a group that includes Dakota Access pipeline parent company Energy Transfer Partners — creates a new felony, “critical infrastructure sabotage,” punishable by up to 25 years in prison and a $100,000 fine.
The Ohio bill includes clauses specifically dedicated to barring drones from flying over infrastructure projects. During the height of protests against the Dakota Access pipeline, a small number of Native American drone pilots used drones to monitor the progress of construction and the activities of police, as well as to publicly document an indigenous aerial perspective of events.
Ohio is home to the controversial Rover pipeline, which is also owned by Energy Transfer Partners. Rover’s builders have repeatedly spilled massive quantities of clay-based drilling mud as they’ve bored under waterways, leading environmental regulators to halt construction multiple times.
The bills are part of a nationwide trend of states pushing legislation to quiet disruptive protests that beyond fossil fuel development, have centered on themes including police violence, white supremacy, and anti-immigrant policy. According to a database created by the International Center for Not-for-Profit Law, 56 bills that would restrict people’s right to peaceful assembly have been introduced in 30 states since the 2016 election.
Many of the bills would impact protesters fighting oil and gas infrastructure, but those explicitly framed by lawmakers as addressing fossil fuel protests have been particularly successful, making up the majority of the bills that have actually become law. Bills aimed at infrastructure protesters have passed in North Dakota, South Dakota, and Oklahoma.
A Colorado bill that would have made it a felony to tamper or attempt to tamper with oil and gas equipment was defeated last year, while bills in other states are still waiting for legislative action. In Pennsylvania, two aimed at pipeline protesters were introduced last year, including one that created a new type of felon, the “critical infrastructure facility trespasser,” and another that would hold protesters responsible for associated public safety response costs. In Washington, a bill reintroduced last month would create mandatory sentences of 60 days to one year for individuals who violate a law in order to “cause economic disruption.” Any “accomplices” could also face the same sentences. The bill was introduced by Trump’s former deputy campaign manager in the state, who said it was drafted in response to activist obstruction of pipelines and oil and coal trains.
A Blueprint From Oklahoma to ALEC
On January 26, Ohio state Sen. Frank Hoagland, a retired Navy SEAL, tweeted, “Today, I introduced legislation that will make #OhioValley and SE #Ohio oil and gas workers safer while they are on the job providing the #Energy our state and country need!” A corresponding news release referred to “a number of reports of tampering with valves and controls at pipeline facilities that can create extremely dangerous situations.”
A post published two days earlier on ALEC’s blog described a similar impetus for its model legislation, listing incidents including vandalism of DAPL construction equipment and the actions of so-called valve turners to disrupt the flow of tar sands oil. “While peaceful protests are an important part of Americans’ right to free speech, causing damage and putting others at risk of harm is not,” the post says.
The valve turners — climate activists who attempted to turn off pipeline valves in five states — are already facing severe consequences for their actions. Three have been convicted of felonies in North Dakota and Montana, which carry maximum sentences of 10 to 21 years in prison. Another three are facing felony charges in Minnesota, where a judge has cleared the way for a necessity defense — the protesters will argue that their actions were necessary given the severity of the climate change threat.
ALEC’s model law, drafted via meetings between members who typically include Republican legislators and representatives of corporations, was inspired by two laws passed in Oklahoma last May. As DeSmog pointed out, the same laws will be included in the more mainstream, largely taxpayer-funded Council of State Governments’ list of “shared state legislation,” which is developed by legislators and made for distributing “innovations in state policy.”
The ALEC model calls for states to follow Oklahoma’s lead in creating new trespassing crimes specific to critical infrastructure, including felonies and fines for anyone who trespasses with intent to “willfully damage, destroy, vandalize, deface, tamper with equipment, or impede or inhibit operations” of a critical infrastructure facility, as well as anyone who succeeds in doing so. The model goes further with its inclusion of a clause to punish any “conspirator” organization with a fine 10 times that of the trespasser. Fossil fuel companies and industry-friendly politicians have long claimed that protesters are paid for and influenced by large nonprofits like Greenpeace seeking to increase donations and benefit wealthy donors.
The model law would also hold trespassers liable for any damage caused during an intrusion; organizations that pay a person to trespass would be held “vicariously liable.”
While Ohio’s aggravated trespassing law currently only applies to individuals trespassing with plans to harm or threaten another person, the bill would make a new crime out of trespassing with intent to impede a critical infrastructure facility’s operation. Violators would face sentences of nine months to three years and up to $10,000 in fines, even if they ultimately did no damage.
The bill would apply the same penalties to people flying drones over facilities. Both nationally and in Ohio, laws have not clearly addressed whether operating drones can amount to trespassing, although, even before DAPL opponents gained attention for using drones, some states introduced legislation meant to penalize their use around oil and gas infrastructure.
Under the Ohio proposal, those who commit criminal mischief by tampering with or damaging a critical infrastructure facility would see first-degree felony charges punishable by three to 11 years in prison and up to $20,000 in fines.
As with ALEC’s model, those “found guilty of complicity” in the offenses laid out in Ohio’s bill would face fines 10 times those of the offenders, as well as “vicarious liability” for associated damage.
Hoagland, the senator who introduced the Ohio legislation, did not respond to a request for comment regarding ALEC’s influence on the bill.
“Nice and Clean” for Prosecutors
Iowa’s bill, proposed by the state’s Department of Homeland Security and Emergency Management, is currently being considered by the Senate Judiciary Committee. Iowa officials say the bill is not primarily about oil and gas industry protesters given its broad focus on “critical infrastructure sabotage,” defined as “any unauthorized act that is intended to or does in fact cause a substantial interruption or impairment of service rendered to the public relating to critical infrastructure property.”
But regardless of intent, the highest-profile incidents of critical infrastructure sabotage in the state occurred along the Dakota Access pipeline. Starting in March, before the pipeline was fully operational, a series of above-ground valve sites were pierced, apparently by a welding torch. Two pipeline opponents, Ruby Montoya and Jessica Reznicek, claimed responsibility for the incidents but so far have not been charged.
Indeed, in an interview discussing the bill with the Des Moines Register, state Sen. Jack Shipley said, “As evidenced by terrorist activities on pipelines and threats — many, many threats — on pipelines, they can bring our infrastructure to crash it, disrupt the economy, and put lives at peril.” He added, “We can’t discourage protesters. They’re entitled to protest anytime they want to in a legal, legitimate fashion, but this is to address issues where people’s lives are put in jeopardy.” The paper reported that Jeff Boeyink, a lobbyist for Energy Transfer Partners, described the Dakota Access pipeline as a “poster child” for why the legislation was needed.
According to John Benson, the legislative liaison for Iowa’s Department of Homeland Security and Emergency Management, conversations about the bill began in July with the Iowa Association of Municipal Utilities, which was concerned about a series of unsuccessful cyberattacks on drinking and wastewater systems.
The department routinely collaborates with private companies that manage resources it aims to protect — like water, electricity, and fuel — and an array of oil and gas industry lobbyists has registered support for the bill. Benson said that Energy Transfer Partners entered the conversation about the bill around September or October. He was unaware of any influence that ALEC had on the bill, but Energy Transfer Partners has been a sponsor of ALEC conferences, and a number of Iowa lawmakers are ALEC members. The speaker of Iowa’s House of Representatives, Linda Upmeyer, is on ALEC’s board of directors, as is state Rep. Dawn Pettengill.
Benson said gaps in Iowa law complicate decisions on how to charge infrastructure saboteurs. “You didn’t have any nice, cleanly defined pathways” for charging saboteurs, he said. “This becomes another thing for the prosecutor to be able to use, and it makes it nice and clean for them to understand.”
For example, he pointed to the state’s terrorism statute, which defines terrorism as an act intended to intimidate or coerce civilians or governments by deploying a dangerous weapon against a building or other vessel occupied by people. Benson noted that critical infrastructure is often empty of people. Terrorism charges in Iowa carry a sentence of up to 50 years.
Criminal mischief laws, which have frequently been applied in other states to acts of infrastructure tampering, would not allow penalties as harsh as those proposed in the Iowa bill. In Iowa, criminal mischief is defined as any intentional “damage, defacing, alteration, or destruction of property” and carries a penalty of up to 10 years in prison and up to $10,000 in fines. The criminal mischief law also only applies if the individual succeeds in carrying out property damage. The new bill would require only intent to disrupt a service. Benson noted that the issue of intent is still being discussed and the bill is a work in progress.
Reznicek and Montoya have said that the pipeline valve piercings were inspired by the Catholic Worker Movement, which has a long history of carrying out acts of sabotage against the military industrial complex. The actions always avoid harm to people, and the actors stay on the scene to claim responsibility. Reznicek and Montoya framed the pipeline piercings as an “extended plowshares” action, referencing the Bible passage that says, “They shall beat their swords into plowshares.”
Emphasizing that he believes the Iowa bill is part of a wider effort to paint activists like Reznicek and Montoya as eco-terrorists, Frank Cordaro of the Des Moines Catholic Worker said, “The laws are already on the books to put Jess and Ruby away a long time.”
“Changing the Subject”
In May 2017, the federal Department of Homeland Security along with fusion centers across seven states, including Iowa, distributed an intelligence report on the tactics, techniques, and procedures “used in recent U.S. pipeline attacks by suspected environmental rights extremists.” The report mentions the valve turners and notes that “the apparent ease with which these valve shutoff attacks were carried out and the heavy media coverage they attracted lead us to be concerned that other environmental rights extremists could pursue coordinated attacks against the energy sector.” The document estimates that the valve actions cost the industry hundreds of thousands of dollars.
The report also mentions several incidents in Iowa, including the torch piercings. It concludes, “We assess environmental rights extremists are likely to use some of these same criminal and violent tactics in attempts to disrupt other U.S. energy projects for the remainder of 2017.”
Last October, 84 members of Congress signed a letter to Attorney General Jeff Sessions asking whether domestic terrorism laws could be used to prosecute individuals who damage oil pipelines. It also asked whether federal laws like the Patriot Act and the Pipeline Safety Act went far enough to allow the Department of Justice to prosecute criminal activity aimed at energy infrastructure. The letter mentioned the valve turners specifically. Responding to questions about the letter, the DOJ told Reuters that it would aggressively prosecute anyone who damages “critical energy infrastructure in violation of federal law.”
Marla Marcum a spokesperson for the Climate Disobedience Center, which is supporting the valve turners, as well as Montoya and Reznicek, said she believes the Iowa legislation is “actually about changing the subject and trying to convince the broader public that people that do these actions are dangerous.” She added, “Every protester that has taken a risk like this has worked hard ensure that they’re not going to cause injury to other people.”
According to Marcum, such actions are carried out in part to force companies to consider whether the additional costs of dealing with protester-driven disruptions make the project less worthwhile. She said they’re also meant to be a kind of wake-up call for the public. “We think of it as an act of moral imagination to give people permission to imagine that we can perhaps decide to follow a course that allows us to do things differently, to get our energy in different ways, and that we actually have the power to do that.”