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Activists fight to hold energy companies accountable in age of repressive state laws

Anti-Dakota Access Pipeline demonstrations inspired legislative crackdown, Greenpeace report says.

A Native American protester holds up his arms as he and other protesters are threatened by private security guards and guard dogs, at a work site for the Dakota Access Pipeline in North Dakota on September 3, 2016. CREDIT: ROBYN BECK/AFP/Getty Images
A Native American protester holds up his arms as he and other protesters are threatened by private security guards and guard dogs, at a work site for the Dakota Access Pipeline in North Dakota on September 3, 2016. CREDIT: ROBYN BECK/AFP/Getty Images

The Native American-led protests against construction of the Dakota Access Pipeline (DAPL) inspired a national movement that reached its peak in the fall of 2016. The massive protests against the oil pipeline also caught the attention of state lawmakers in North Dakota and other fossil fuel-friendly states who feared the spread of similar demonstrations against other energy infrastructure projects.

Starting in early 2017, these state legislators worked with corporate-funded groups to craft legislation restricting the right to protest and criminalizing protest. More than two years after the rise of the anti-Dakota Access Pipeline movement, efforts to crack down on protests have not slowed down, according to a new report from Greenpeace that focuses on Energy Transfer Partners, the corporate sponsor of the controversial oil pipeline.

More than 60 bills have been introduced in state legislatures restricting the right to protest in the wake of the anti-DAPL movement. Nine of the bills have passed and 26 are pending. Three of the nine bills became law in North Dakota. The most recent anti-protest bill to become law was signed by Iowa Gov. Kim Reynolds (R) in April.

Among the most recent bills to be introduced is one in Minnesota where state lawmakers are considering whether to create 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 bill would target people associated with someone that damages property. For example, a person who brings food to protesters could be held liable for the actions of others at a protest camp.

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“The legislative trend sparked by the DAPL protests shows no signs of slowing down, and the resulting impact could have disastrous consequences on First Amendment rights and free speech — consequences extending far beyond pipelines,” Greenpeace warns in the report, released Monday.

Energy Transfer Partners, Greenpeace notes, has not been held accountable for its violent attacks on protesters or its aggressive stance against public participation in the pipeline permitting process.

“Its continuous disregard of the suggestions and recommendations of government agencies, clients, and international human rights groups; and its condoning of militarized use of force against Water Protectors and allies at Standing Rock are all alarming,” Greenpeace says in the report.

Energy Transfer Partners’ litigation and the new and proposed laws are having a long-term “chilling effect” on free speech, especially around protests against pipeline projects. “Even just introducing these protest bills has the potential to chill speech and deter 1st amendment protected activities,” the report says.

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By late 2016, anti-DAPL protests against the pipeline and against the banks funding the mega-infrastructure were happening across the country. The Standing Rock reservation in North Dakota remained the epicenter of the protests where thousands of anti-pipeline activists gathered to stop construction of the project on the sacred Native American lands.

In response to the protests, the Obama administration denied Energy Transfer Partners a permit to finish construction of the pipeline, a $3.78 billion project running directly under the Missouri River.

Upon winning the White House, President Trump’s pro-police rhetoric and his administration’s energy dominance agenda emboldened law enforcement agencies and corporate-backed politicians to take measures that they hoped would instill fear into anti-pipeline activists.

“It is obvious who still thinks they call the shots: fossil fuels. We will not let them intimidate us into silence. We are many and they are few,” said Mara Robbins, an anti-pipeline activist and a leader of Preserve Floyd, a community group in Floyd County, Virginia opposed to new natural gas pipelines in the state. “The people will continue to do whatever it takes to protect our water and stop the pipelines.”

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Unlike other states, Virginia failed to pass a bill that would have increased penalties for anti-pipeline protesters. In early 2017, the state Senate rejected a bill calling for potential jail time for the crime of remaining at an “unlawful assembly” or a “riot” after being ordered to leave.

Despite no new legislation, Virginia police have aggressively cracked down on residents opposed to the construction of the Mountain Valley Pipeline and Atlantic Coast Pipeline in western Virginia. Some residents are facing arrests and fines for protesting against the pipelines on their own private property.

The developers of the Mountain Valley Pipeline should not have been granted permission by federal and state regulators “to butcher any fair usage of eminent domain in order to violate public and private property to try to build a dangerous, unstable project that is already damaging Virginia’s water just through tree and land clearing,” Robbins said Tuesday in an email to ThinkProgress.

Iowa lawmakers, unlike Virginia’s legislature, passed a law in April very similar to an anti-protest template bill drawn up by the American Legislative Exchange Council, a right-wing group that drafts legislative templates that are corporate-friendly and often anti-democratic.

Even though laws against vandalism are already on the books in the state, the Iowa law targets people “who intentionally damage or try to damage infrastructure deemed critical to the safety and economic well-being of Iowans.” The penalties, however, are much greater than people convicted of vandalism. Under the new law, people could face a criminal charge carrying a 25-year prison term and a fine of up to $100,000.

According to the Greenpeace report, Iowa state lobbying disclosures show that Energy Transfer Partners directly advocated for the legislation in Iowa along with Koch Industries and the American Petroleum Institute.

Earlier this year, Wyoming’s legislature also passed an anti-protest bill that contained new criminal classifications for those damaging or slowing down critical infrastructure like oil and gas facilities or pipelines. The bill was ultimately vetoed by Gov. Matt Mead (R) because he believed the proposed punishments were redundant with existing law.

Dozens of anti-protest bills, including ones that refer to critical infrastructure or increase penalties for trespassing, are still being considered by legislators in several states, including Minnesota, Ohio, and Pennsylvania.

Energy Transfer Partners and its subsidiaries are also using a controversial legal approach known as Strategic Lawsuit Against Public Participation (SLAPP). These are meritless lawsuits meant to silence free speech through expensive and time-consuming litigation.

In 2016, the company sued Standing Rock Sioux’s tribal chairman and several others “seeking restraining orders and unspecified monetary damages.” After completing construction on the Dakota Access Pipeline, the company also filed a $900 million SLAPP suit against Greenpeace entities, Banktrack, and the movement EarthFirst!, accusing the organizations of inciting and directing acts of “eco-terrorism.”

“SLAPPs are effective because even a meritless lawsuit can take years and many thousands of dollars to defend,” Greenpeace says in the report. “To end or prevent a SLAPP, those who speak out on issues of public interest frequently agree to muzzle themselves, apologize, or ‘correct’ statements.”

While the threats posed by laws criminalizing protest and the fear of SLAPP lawsuits may deter some activists, Preserve Floyd’s Robbins said she is not curtailing her activism despite the many arrests of anti-pipeline protesters that have occurred along the paths of two proposed natural gas pipelines in Virginia.

Robbins also contends the dozens of anti-protest bills introduced in states could be viewed as signs that people engaging in anti-pipeline activism are having a big impact.

“In this current day and age, we should all be concerned about fiercely protecting our first amendment rights,” Robbins said. “Here in Virginia we are exercising those rights in droves. We are making the moral argument. We are keeping the issue front and center in the press. We are assembling to protest this madness.”