This week, the Louisiana House of Representatives introduced new legislation aimed at criminalizing the activities of groups protesting the extraction, burning, and transport of oil and gas. The bill is similar to a model created by the right-wing American Legislative Exchange Council. Indeed, in the wake of the massive protest movement at Standing Rock, which attempted to prevent completion of the Dakota Access pipeline, at least seven states have introduced or passed “critical infrastructure” legislation. Louisiana’s version comes as opponents of the Bayou Bridge pipeline have ramped up protest activities in the state, staging occupations and blockades aimed at halting construction of the project.
The legislation creates new crimes that would punish groups for “conspiring” to trespass on critical infrastructure sites and prescribes particularly harsh penalties for those whose ideas, if carried out, would disrupt the operations of such infrastructure. The definition of the term critical infrastructure would be amended to include pipelines and pipeline construction sites. The language of the bill reaches far beyond cases of property destruction, and stands to net individuals who do not participate in or condone such activities.
The Louisiana bill, unlike the ALEC model, does not require that any disruption to a facility’s functioning take place for penalties to apply — an individual could face huge fines or prison time without ever having set foot on the property.
“This is ALEC-plus,” said Pamela Spees, a senior attorney at the Center for Constitutional Rights who is representing groups opposed to the Bayou Bridge project.
The proposed law appears to be designed to intimidate the array of groups working to halt construction of the 163-mile oil pipeline, which cuts through a sensitive wetland where Louisiana crawfish are harvested. The groups — including the Louisiana Bucket Brigade, Bold Louisiana, and the Atchafalaya Basinkeeper — have worked together despite varying goals that range from preserving sensitive habitats and lessening the impact of climate change to defending property rights and protecting the local crawfishing industry.
The Bayou Bridge pipeline shares the same parent company, Energy Transfer Partners, as the Dakota Access pipeline. Indeed, the two projects represent the northern and southern ends of a larger pipeline system.
“I think it shows how very deeply this industry has our state government by the throat,” Cherri Foytlin, a member of the indigenous women’s advisory council for the anti-Bayou Bridge L’eau Est La Vie (Water Is Life) Camp, said of the new legislation. “That they would sacrifice the citizens of South Louisiana, who are trying to protect their water, by criminalizing them over companies like Energy Transfer Partners.”
Mounting Restrictions on the Right to Protest
ALEC, which brings together corporations and right-wing legislators to draft industry-friendly policies, finalized its model “Critical Infrastructure Protection Act” in January based on a law passed in Oklahoma last spring, and since then, similar bills have been introduced in Iowa, Ohio, Wyoming, and Minnesota. Pennsylvania also introduced a critical infrastructure bill shortly after Oklahoma. In addition to ALEC, the nonpartisan Council of State Governments has also promoted the Oklahoma law on its list of “shared state legislation.”
The Iowa bill has passed both bodies of the state legislature and awaits final approval. The Ohio and Pennsylvania bills are pending, and the Wyoming bill passed the legislature before being vetoed by Gov. Matt Mead.
Minnesota’s bill, one of the newest, was introduced earlier this month. A committee of the state’s Republican-controlled House approved the bill on March 12, meaning it will soon go to a vote before the full House. The controversial Enbridge Line 3 pipeline awaits approval in the state, where it’s facing opposition from local tribes and environmental groups — some of which were also involved in fighting the Dakota Access pipeline.
The Minnesota bill appears to be aimed at those groups. Notably, it creates a felony for anyone who “recruits, trains, aids, advises, hires, counsels, or conspires with” an individual who causes significant damage to critical infrastructure such as pipelines. The penalties for such individuals or entities would be the same as those for the person who did the damage — up to 10 years in prison and a $20,000 fine. In the same vein, the law creates a misdemeanor for anyone who aids a person caught trespassing on a property containing critical infrastructure, and “vicarious liability” for any damage that occurs during the trespass. Versions of those items were also recommended by ALEC’s model.
The pipeline-related bills are part of a broader legislative crackdown on protest movements. According to the International Center for Not-for-Profit Law, since Trump’s election, 31 states have considered bills meant to curb protest.
Minnesota lawmakers, for example, will also vote soon on a bill that creates a gross misdemeanor for anyone who interferes with freeway traffic or traffic on roadways near an airport. Additionally, it would increase the potential fine for anyone who interferes with vehicles and the potential jail sentence from 90 days to a year. The bill’s authors have described it as a response to protests that have blocked traffic in recent years, including those that erupted in 2015 after 24-year-old Jamar Clark was killed by Minneapolis police and in 2016 after a St. Anthony, Minnesota, officer shot and killed 32-year-old Philando Castile
“Where’s the Conspiracy Here?”
In Louisiana, the majority of members of the House — 64 out of 105 — have signed on as sponsors of the critical infrastructure bill. Its primary sponsor, Major Thibault of Pointe Coupee Parish, is a Democrat, as are eight co-sponsors. “I saw what happened in parts of the country like North Dakota. Oklahoma had some legislation, and this is kind of modeled after that,” he told The Intercept. According to data from FollowtheMoney.org, energy and natural resources companies are Thibault’s second leading campaign donor by sector.
Those convicted of “conspiring” to trespass on a pipeline site would be imprisoned for a maximum of five years, fined a maximum of $10,000, or both. If the conspirators’ plan involved disrupting the pipeline’s construction, they would be imprisoned for between six and 20 years, fined a maximum of $250,000, or both.
Those who actually succeed in disrupting the operations of a pipeline or construction site would actually face a lesser maximum fine, $25,000, than if they’d only conspired to do it and the same possible prison sentence, between six and 20 years. Courts would also have the ability to require offenders to pay the costs of any law enforcement response, as well as restitution to the property owner.
“Where’s the conspiracy here? Whose interests are being served? We’re already operating in a state where our regulatory agencies, we’ve seen, are not acting as independent regulators,” Spees said.
“It’s further confirmation that a complete overhaul of the system is going to be what’s required,” said Foytlin. “We will do what we have to do to protect our water, and if that means we can’t be on the pipeline route, then we’ll be in these politicians’ office, and we’ll be running against them and replacing them with people that can put families in Louisiana over the profits of a pipeline company.”