One day after West Virginia Gov. Jim Justice’s shelter-in-place orders went into effect, the governor quietly signed into law the Critical Infrastructure Protection Act. In the midst of the coronavirus pandemic, the law created new felony penalties for protest actions targeting oil and gas facilities, as the state continues to confront opposition to two massive natural gas pipelines designed to cut through delicate forests, streams, and farmland.
If construction is completed, the Mountain Valley and Atlantic Coast pipelines would transport gas extracted via fracking in West Virginia to markets in Virginia and North Carolina, passing through the crumbly limestone landscapes known as karst that underly much of the mountainous region. Such projects are key to keeping fracking companies operating at a time when gas prices are at historic lows and allowing a booming petrochemical industry to continue its expansion. Local landowners and residents concerned with environmental issues have attempted to stop construction by locking themselves to equipment and camping out in trees in the pipelines’ paths. Along with more conventional actions such as lawsuits, the protest efforts have cost the projects’ backers billions of dollars in delays.
Now, a person who trespasses on a West Virginia property containing “critical infrastructure” with the intention of defacing or inhibiting operations could face up to a year in jail and a $1,000 fine. The law creates a new felony and fines of up to $20,000 for any person who conspires to deface or vandalize such properties if the resulting damage is more than $2,500. “Critical infrastructure” is defined as an array of oil and gas facilities including petroleum refineries, compressor stations, liquid natural gas terminals, and pipelines.
West Virginia’s critical infrastructure law mimics a model policy promoted by the American Legislative Exchange Council, known as ALEC, a shadowy group that encourages state lawmakers to pass industry-friendly legislation. Records provided to The Intercept by the Energy and Policy Institute reveal the natural gas industry’s hand in advancing the bill. A network of local lobbyists for Dominion Energy, which owns the Atlantic Coast pipeline; the West Virginia Oil and Natural Gas Association; and the American Fuel and Petrochemical Manufacturers, an industry group representing the refineries and processing plants that are the final destinations for the natural gas pipelines, spent months working behind the scenes to ensure the bill’s passage.
West Virginia isn’t the only state to advance such anti-protest measures in the midst of the pandemic. Andy Beshear, Kentucky’s Democratic governor, who has been widely praised for his response to Covid-19, signed a similar critical infrastructure law on March 16, and South Dakota’s governor signed another on March 30. Alabama’s bill passed the state Senate on March 12 and is currently being considered by the House; Mississippi’s passed the House on March 4 and awaits action from the Senate. Particularly striking is a new amendment to Louisiana’s existing critical infrastructure law, now awaiting the governor’s signature, which would prescribe up to 15 years’ imprisonment for entering a critical infrastructure property without authorization during a state of emergency.
Connor Gibson, a researcher for Greenpeace who has studied the industry influence behind critical infrastructure bills nationwide, said politicians have taken advantage of the pandemic to ease the construction of controversial projects. “The Covid-19 pandemic gave cover for particularly sleazy politicians to pass anti-protest bills while their constituents are squeezed by unemployment and the responsibility to protect public health,” he said. “These bills are meant to prevent protests just long enough for oil companies to finish dangerous and unpopular petrochemical projects.”
Justice, the West Virginia governor, is a coal billionaire who has also thrown his weight behind the Appalachian Storage and Trading Hub, which could transform the Ohio River Valley into a center of the petrochemical industry. The governor and legislature remain unconvinced by scientists’ assertions that only a rapid shift away from fossil fuels will save the state from climatic shifts likely to cause increasingly frequent droughts that could spell the end of its towering red spruce trees and angler-beloved brook trout. The new law will protect fossil fuel industry dominance with the threat of felony charges for those who dissent.
“It’s a flexing of muscles,” said Becky Crabtree, whose sheep pasture, set on a ridge below the Appalachian Trail, is now bisected by the Mountain Valley pipeline. “It’s just another way that our lawmakers are in the pockets of the fossil fuel companies.”
Requested by Industry
After the West Virginia Critical Infrastructure Protection Act was introduced at the end of January, the bill’s sponsor, Delegate John Kelly, received dozens of emails from constituents urging him to halt its passage.
In a rare and revealing reply to one of the emails, Kelly provided a previously unreported detail about the bill’s origins. “What is the purpose of HB4615 and are you in support or against this legislation?” a constituent asked Kelly in an email sent February 3.
“Simple explanation, this bill reinforces property rights. when a person goes on private property and does intentional damage,” Kelly replied. “The bill was requested by the natural gas industry, because protesters entered a drilling site, and destroyed equipment.”
Kelly did not respond to questions from The Intercept about who exactly requested the bill or what damage he was referring to, but disclosure records from last summer provide some clues.
On June 12, Kelly and Republican House Majority Leader Amy Summers spent an afternoon with Maribeth Anderson, government affairs director for Antero Resources, one of the largest natural gas producers in the state. They discussed gas issues over lunch and rode around in a rented van, visiting a drilling rig and a brine processing facility.
Two weeks later, Dominion lobbyist Bob Orndorff emailed Robert Akers, a lawyer for the West Virginia House Energy Committee. “Delegate Amy Summers reached out to me and asked if we ever considered a bill to address civil disobedience towards pipelines,” Orndorff wrote, copying Anderson, as well as lobbyists for EQM, the largest shareholder behind the Mountain Valley pipeline, and Southwestern Energy, a natural gas exploration and production company. “Maybe the Energy committee should consider such a law.”
Summers, a former member of ALEC, told The Intercept that she’d grown concerned after reading an article about civil disobedience on pipeline properties. “I asked the industry’s lobbyist if we had laws to prevent unsafe activity,” she said.
Dominion spokesperson Ann Nallo denied that Dominion had led the efforts to advance the bill. “It appears to have been led by an industry consulting group,” she said, without elaborating. Orndorff did not respond to a request for comment.
Nallo appears to have been referring to Orion Strategies, a public relations firm based in West Virginia, Ohio, and Pennsylvania that has long been an ally of the natural gas industry. In 2018, the firm was behind a series of pro-fracking reports put out by the Consumer Energy Alliance, a self-identified grassroots organization that was started by a lobbying company with ties to the tar sands industry.
An Orion Strategies lobbyist was one of only three out of 26 people who testified in favor of the critical infrastructure bill at a public hearing on February 10. The others included the head of the West Virginia Oil and Natural Gas Association and a representative of the local chamber of commerce.
After the bill passed, the firm quickly took credit. “Orion Strategies is proud to have taken point on organizing the wide base of support for legislation that will protect critical infrastructure,” Orion lobbyist Chris Hall wrote in a celebratory email on April 1.
Hall told The Intercept that Orion worked to advance the anti-protest bill on behalf of the American Fuel and Petrochemical Manufacturers. An AFPM spokesperson confirmed that the trade association was behind the original request. “Critics of this bill disregard the dangers inherent in this interference and seem to suggest that trespassing and destruction of property are required for protest,” she stated, but declined to provide examples of incidents in which protesters had destroyed critical infrastructure equipment.
The AFPM’s efforts to pass critical infrastructure legislation go further back than the West Virginia bill. In fact, the association helped author the ALEC model legislation that has served as a template for anti-protest measures across the country.
A Force Behind the Scenes
The first critical infrastructure law aimed at pipeline protesters passed in the immediate aftermath of the Indigenous-led uprising against the Dakota Access pipeline near the Standing Rock Sioux Reservation in North Dakota. The fossil fuel industry, in partnership with law enforcement, convinced legislators in numerous states that they were at risk of their own local Standing Rock — with accompanying security costs. Oklahoma passed an anti-protest law in May 2017, and by the end of the year, ALEC had developed the law into model legislation.
An AFPM lobbyist was part of the ALEC task force that created the model. “AFPM advocated for the model legislation because of its importance for refineries and for the pipeline infrastructure that delivers products to and from our facilities,” the association’s spokesperson told The Intercept.
Since then, AFPM has continued to deploy its representatives to evangelize in favor of anti-protest legislation. Direct lobbying by AFPM helped advance versions of the model bill in at least four states, according to an analysis of news reports and disclosure records by Gibson, the Greenpeace researcher. Twelve states including Oklahoma have now passed laws aimed at increasing penalties for pipeline protesters interfering with “critical infrastructure.”
Companies processing natural gas and oil into fuel or chemicals for products like plastic have played a particularly significant role in pushing critical infrastructure legislation, according to the new data collected by Greenpeace. Marathon Petroleum, Exxon Mobil, and Koch Industries, all of which own both pipelines and refineries, ranked as the most influential corporations backing critical infrastructure laws nationally, according to the organization’s analysis. “It’s not just necessarily the big embattled pipeline companies that are pushing these anti-protest laws,” Gibson said.
A Marathon spokesperson told The Intercept that the company supports critical infrastructure policies “with safety in mind,” adding that “there have been many legislatures that agree that this type of legislation is necessary to counter threats of vandalism that can disrupt emergency services and people’s lives.” Exxon Mobil and Koch Industries did not respond to The Intercept’s requests for comment.
“It’s the companies that own both refineries and pipelines that are most aggressive in retaliating against protesters of fossil fuel infrastructure,” said Gibson. “The ultimate goal is to prevent people from protesting with fines and penalties. They also want to make sure they enact revenge on people who protest anyway, using legislators to provide that service for them.”
Above All Rules and Regulations
Crabtree, who is in her 60s, is part of the wide-ranging resistance to pipeline projects in Appalachia and among those who have sought to impede operations of a pipeline property. She’s concerned that the Mountain Valley pipeline will disrupt sensitive water systems that feed her family’s drinking water wells. Construction has already altered the landscape on her property, she says. A week after the company blasted open terrain near her home, a sinkhole opened 60 feet from Crabtree’s door, disrupting a stream that used to pass over the land. Mountain Valley denied responsibility and the hole has since filled with water, becoming a pond more than 9 feet deep.
In 2018, Crabtree and her family suspended her 1971 Ford Pinto in the air above a pipeline construction site on her farmland. They sealed the doors shut with Crabtree inside and succeeded in stopping work for half a day before she was arrested. Prosecutors later dropped an obstruction charge.
Amendments to the West Virginia protest law say that it should not apply to “the right to free speech or assembly, including, but not limited to, protesting and picketing.” The amendments were a win for the bill’s opponents, however it will be up to prosecutors to decide whether the language protects people like Crabtree.
Mountain Valley has since completed work on Crabtree’s property, and construction elsewhere is currently suspended while federal regulators review the project’s compliance with the Endangered Species Act. Yet pipeline workers have been allowed to continue working on erosion and sediment control throughout the pandemic. Justice’s stay-at-home order and the state’s “safer at home” order have counted work on the pipeline as “essential infrastructure.” Backers still say the project will be completed this year, which could mean an influx of out-of-state workers in communities with low Covid-19 rates. Residents of the county where Crabtree lives have implored the governor to halt pipeline work while the pandemic continues.
Mountain Valley did not respond to a request for comment, but in a letter to the Federal Energy Regulatory Commission, the company’s lawyer stated that it “has implemented enhanced health and safety measures, including instructing employees and contractors on social distancing and sanitation” as well as reducing crew sizes to fewer than 10 people.
Nevertheless, Crabtree says, workers she spotted on an adjoining property did not seem to be following the Centers for Disease Control and Prevention’s Covid-19 guidelines. “In the middle of the pandemic, we had workers standing far less than 6 feet from each other, with no masks. They don’t stay away from each other, and they don’t stay away from cars,” she said. “They are above all rules and regulations.”
Correction: June 12, 2020
A previous version of this article incorrectly described some of the penalties included in West Virginia’s critical infrastructure law. The article has been updated to accurately reflect the new penalties.