Criminalizing protest

• Seven US states have passed laws that ratchet up the penalties for activists protesting or even planning protests of oil and gas pipelines and other “critical infrastructure”.
  At least six more states are considering such laws.
  In each case, misdemeanors are elevated to felonies, and criminal and civil punishments are escalated drastically.

The laws purport to only criminalize violence and property damage in service of pipeline safety, but critics say their greater intent appears to be to deter nonviolent civil disobedience by framing it as potentially violent in itself. The bills have mostly found fertile legislative ground in places where gas and oil companies already wield significant political and economic power and where anti-fossil fuel protests have been especially successful. Oklahoma was the first to pass pipeline-protecting legislation in 2017, with a pair of bills that ostensibly protected critical infrastructure from trespass and damage. By the end of the year, the American Legislative Exchange Council, a non-profit coalition of conservative politicians and industry representatives, had developed model Critical Infrastructure Protection legislation based on Oklahoma’s laws. Energy industry groups immediately sent a letter to legislators urging them to adopt the bill in their states. That effort has proven fruitful. Louisiana passed a version into law in 2018, and the legislative wave picked up speed in 2019. Laws that would increase criminal and civil penalties for protesting against gas and oil pipelines specifically and “critical infrastructure” more broadly have passed this year in Tennessee, Indiana, North Dakota, South Dakota and Texas, and are currently pending in Idaho, Minnesota, Missouri, Illinois, Ohio and Kentucky. In each case, the laws provide for more extreme criminal charges and civil penalties for trespass and vandalism against pipelines. Similar measures seem to have support at the federal level. The Trump administration, stacked with former fossil fuel industry lobbyists, attorneys and executives, has come out with its own proposals to protect fossil fuel infrastructure.

“This is a trend that shows no sign of slowing, let alone stopping,” said Elly Page, legal adviser for the International Center for Non-Profit Law.  “It seems to be part of a larger effort to stifle certain political speech and environmental groups.”

“This is a miscasting of protesters as economic terrorists and saboteurs when in fact they’re going out and having their voices heard about why these pipelines are problematic for their communities and the environment,” said Vera Eidelman, a staff attorney with the American Civil Liberties Union.

When the Texas law goes into effect on 1 September, it will make “impairing or interrupting” pipeline construction a felony, punishable by up to two years in jail and a $10,000 fine. If an activist is alleged to have “intent to damage or destroy” a pipeline facility, they could face a third-degree felony on par with attempted murder, and up to 10 years in prison. And any organization found to be similarly culpable could face a $500,000 fine.

Although the anti-protest laws are highly specific in explicitly or implicitly targeting oil and gas infrastructure, they’re highly vague when it comes to defining what behaviour is prohibited. The laws define “critical infrastructure” as a range of private and public energy facilities, including those that are under construction, but what constitutes imposition, disruption, inhibition or conspiracy is left up to a court’s interpretation, as is what constitutes “intent” to damage property. Yet if preserving infrastructure safety and fossil fuel company profits are the goal, there are already a variety of legal tools available to law enforcement. Trespassing and damaging private property are already crimes in every state. 

The laws appear designed not just to deter individuals from protesting, but also to cut off material support from organizations by levying steep fines on organizations alleged to conspire with activists. South Dakota’s governor, Kristi Noem, admitted as much about the law in her state in March and said that the law was intended in part to “shut down” activist resources – she named George Soros as the top “national offender”. By a particularly cruel twist in South Dakota’s law, which flew through the state legislature in just one week, those fines could actually be used toward the construction of the pipelines activists protest against.

“They’re just picking the low-hanging fruit right now, the places where oil and gas have outsized influence. But oil and gas pipelines are everywhere. It’s not just Louisiana and Oklahoma and South Dakota,” said Bill Quigley, a law attorney at Loyola University New Orleans, “I guarantee a law like this is coming to your state.” He explained that "This is a total industry-created issue. They are essentially passing these laws to give themselves enhanced protection.”

https://www.theguardian.com/environment/2019/jul/08/wave-of-new-laws-aim-to-stifle-anti-pipeline-protests-activists-say