As pipeline protests continue to delay and, sometimes, stop energy projects in their tracks, the fossil fuel industry and Republican lawmakers are looking for new ways to clamp down on environmental protest.
In the last few years, state lawmakers across the country have proposed bills that would impose harsh penalties on environmental protest, particularly protests aimed at delaying pipeline construction or shutting down existing pipeline infrastructure. In energy-rich states like Oklahoma and North Dakota, lawmakers have successfully passed bills prohibiting certain kinds of protest, from protests that block highways or traffic to protests that trespass onto property containing energy infrastructure.
But a new crop of bills proposed in Louisiana, Pennsylvania, and Minnesota — all states with controversial pipeline projects currently under consideration — take the criminalization of protest one step further.
If passed, the bills would make it illegal to conspire to protest in certain instances, like when a protest would require trespass or some other kind of civil disobedience. This means the act of simply planning a protest that includes a civil disobedience component, like trespass — regardless of whether or not you actually protest — would become illegal.
While anti-pipeline protest bills have been introduced across the country since 2017, the three most recent examples — introduced in Louisiana, Minnesota, and Pennsylvania within the last month — include uniquely broad definitions of conspiracy. And legal experts say it’s hardly a coincidence that these particularly strong bills are all proposed in states that have seen continuous opposition to proposed fossil fuel infrastructure.
“I think these bills represent an escalation,” Alice Cherry, co-founder and staff attorney of the Climate Defense Project, told ThinkProgress. “The main motivation for these bills seems to be to deter would-be protesters and to make potential jail sentences and fines more draconian.”
The current wave of state-level anti-pipeline protest legislation has largely been seen as a response to the Standing Rock protests of 2016, which brought thousands of indigenous and environmental groups to North Dakota in an attempt to stop construction of the Dakota Access Pipeline.
The protests, which stretched for several months, significantly delayed progress on the pipeline’s construction. This led Kelcy Warren, CEO of Energy Transfer Partners, the company behind the pipeline, to publicly claim that protests “tarnished” the company’s image. Warren has also said that anyone who vandalized the Dakota Access Pipeline should be “removed from the gene pool.”
The Dakota Access pipeline is now operational, after the Trump administration signed an executive order directing the Army Corps of Engineers to quickly complete its environmental review of the project’s final leg. But Energy Transfer Partners now faces increasing opposition to two other pipeline projects — the Bayou Bridge pipeline in Louisiana, which would serve as the final leg of the larger Dakota Access system, and the Mariner East 2 pipeline in Pennsylvania.
The successful protests against the Dakota Access pipeline have inspired the protests now being staged against pipelines in Louisiana, Pennsylvania, and elsewhere. But they have also inspired backlash from the fossil fuel industry and allied political groups.
In 2017, legislators in Oklahoma approved two bills aimed at enacting stricter criminal penalties for protest that disrupts or damages “critical infrastructure” — things like refineries, pipelines, and telecommunication sites. The bills’ principal author, Scott Biggs, spoke on the floor of the Oklahoma House in February of 2017, saying that the bills were inspired by “these protests that have turned violent, these protests that have disrupted the infrastructure in those other states,” like the protests at Standing Rock.
Oklahoma’s successful passage of the two bills made willfully entering onto property with critical infrastructure a misdemeanor and disrupting critical infrastructure a felony.
Following this, the American Legislative Exchange Council (ALEC) — a group that receives funding from petrochemical billionaires Charles and David Koch and works to provide state legislatures with model legislation — created a model bill meant to impose strict penalties against protesters who engage in civil disobedience with respect to pipelines and energy infrastructure.
The ALEC model bill included a provision for charges to be brought against an organization that is found to have conspired with individuals to disrupt critical infrastructure.
Now, in Louisiana, Pennsylvania, and Minnesota, legislators have taken their anti-pipeline protest bills a step further than ALEC. These bills including clauses that create criminal or civil penalties not just for organizations that conspire, but also for individuals — meaning that someone could be held responsible for a protest even if they don’t physically participate.
“Generally speaking, any time two or more persons form an agreement to do something that breaks the law, they are guilty of criminal conspiracy,” Cherry said. “There is no requirement of malicious intent, and planning a protest that involves trespass or other forms of lawbreaking counts as a conspiracy.”
Under Louisiana’s proposed bill, introduced on April 3, if two or more people “conspire” to enter onto critical infrastructure — even if they don’t vandalize or disrupt the infrastructure — they could be charged with conspiracy.
Protesters in Pennsylvania would face similar charges for conspiring to enter a prohibited area under a bill introduced on March 26. The same is true for a proposed bill introduced at the end of March in Minnesota — where protesters have, for years, been fighting against a tar sands pipeline.
“Clearly, the conspiracy provisions are especially troubling because they can cast such a wide net,” Elly Page, a legal advisor for the International Center for Not for-Profit Law, told ThinkProgress. Page noted that in many states, conspiracy charges require parties to participate in some kind of overt act towards breaking the law, even if they don’t actually go through with the illegal action. For protests, it’s unclear what could qualify as an overt act, but it could be something as simple as printing out a map.
In most instances, these bills cover crimes already penalized under state legal codes. Trespass is already illegal in these states, and prosecutors frequently charge protesters with conspiracy. What sets these bills apart, Cherry notes, is their narrow focus on energy infrastructure, as well as the proposed severity of criminal penalties.
“These offenses are already criminalized in every state,” Page said. “In a lot of cases, [lawmakers] will have amended the definition for critical infrastructure just to add the word pipeline. It’s making clear what the impetus for these bills is.”