The “Critical Infrastructure Protection Act” is sweeping the nation. This “act” — a dictate from the energy lobby — is handing ready-made bills to state legislatures for them to enact as local law. The ready-made bills are being presented as an infrastructure safety measure that gives states the right to arrest and prosecute any protestor for either trespass near or damages to a pipeline, oil refinery, chemical plant, waterwork, or even corporate headquarters on an energy company.
In short, it’s an anti-protesting law that allows law enforcement and the judicial system to prosecute protesters for simply showing up (think Dakota Access Pipeline protesters, etc). The penalty? It varies. But in all cases, it turns a protester of an oil company or its pipeline into a felon with tens-of-thousands in fines and sometimes decades in prison. Seriously.
Here’s what’s actually going on with these “Critical Infrastructure Protection” laws and what they might mean for you.
WHAT LAWS ARE THE ENERGY COMPANIES LOBBYING FOR?
The lobbying enterprise American Legislative Exchange Council (ALEC)† has been passing around a ready-made bill to state legislatures all over America — the so-called Critical Infrastructure Protection Act. That bill very broadly informs that states should enact laws wherein folks who protest any energy or infrastructure entity will be convicted of a felony and he held responsible for any monetary damage happening during that trespass.
Here’s the ready-made bill’s synopsis from ALEC:
Drawing inspiration from two laws enacted in 2017 by the State of Oklahoma, this Act codifies criminal penalties for a person convicted of willfully trespassing or entering property containing a critical infrastructure facility without permission by the owner of the property, and holds a person liable for any damages to personal or real property while trespassing. The Act also prescribes criminal penalties for organizations conspiring with persons who willfully trespass and/or damage critical infrastructure sites, and holds conspiring organizations responsible for any damages to personal or real property while trespassing.
The problem here is that the wording of this is very, very broad. First of all, it criminalizes the very act of showing up to a protest near a pipeline or chemical plant or refinery or even a dam. Second, it takes the minor crime of trespass — which is usually a misdemeanor or infraction — and makes it a major crime by referencing Oklahoma’s 2017 laws (essentially making any trespasser guilty for the damage caused by another trespasser). In all cases, states which have enacted this “act” are making these crimes a felony.
Next, things get even more squirrelly. The act also states that it “prescribes criminal penalties for organizations conspiring with persons who willfully trespass.” That is so broad that it could mean anything from the landowners to farmers to Indian reservations to climate change non-profits who helped organize protests. Again, these people could be arrested, tried, and convicted as felons.
Yes, this also addresses vandalism and property damage but there are already laws banning those actions. Beyond that, people are constitutionally obliged to “peaceably assemble” when protesting. That’s a tenant of our First Amendment after all. The point here is the wording of this act being passed is so vague and is an “and/or” situation in every case. That means you can get arrested for simple trespass and/or trespass and property damage or just property damage. That’s a wide berth for law enforcement and the judicial system.
†It’s worth noting that, according to reporting from Bloomberg, ALEC is partially funded by the Charles Koch Institute and partners with energy industry giants Energy Transfer Partners (a company in which Donald Trump is an investor), the American Petroleum Institute, Koch Companies Public Sector, Magellan Midstream Partners, NextEra Energy Inc., and Valero Energy Corp.
WHERE IS THIS ACT BECOMING LAW?
Nine states have already enacted this act as law and started prosecuting protestors: Indiana, Iowa, Louisiana, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, and Texas.
This isn’t an isolated incident in faraway “red” states. At least six more states are in the process of flooring and passing the same laws from Washington State to Georgia to Illinois.
Let’s look at the current situation. Wisconsin’s House passed a bill on October 10th enacting anti-protesting laws and now it’s going before that state’s Senate. Looking at the analysis of what’s going on in Wisconsin gives a clearer image of what these laws are really saying.
[This law] Would create new potential penalties for protests near oil and gas pipelines and other property of “energy providers.” The bill expands existing law related to trespass and property damage to broadly include the property of all companies in the oil and gas industry. Under the bill, trespass onto the property of any “company that operates a gas, oil, petroleum, refined petroleum product, renewable fuel, water, or chemical generation, storage, transportation, or delivery system” would be a Class H felony, punishable by six years in prison and a fine of $10,000. Accordingly, protests in a range of locations could be covered, whether on land containing a pipeline or the corporate headquarters of an oil company. Any damage to property of such a company, with the intent to “cause substantial interruption or impairment of any service or good” provided by the company, would likewise be a Class H felony under the bill.
Again, this all seems very broad with “cause substantial interruption” being the broadest of terms from the law before the state legislature. Furthermore, it’s clear this isn’t trespassing and damage to property, but an either-or situation with both leading to a Class H felony conviction. In Wisconsin, that could mean up to six years in prison and up to $10,000 in fines.
Note: Wisconsin’s felonious jail time and fine is similar to every other state that’s passed a law like this or is considering it. That’s not even the extreme of these anti-protesting laws. In Texas, the maximum fine is up to $1 million and prison time is up to 20 years.
Lastly, let’s not forget what being branded a felon in America means. Felony disenfranchisement is very real and present. 5.8 million Americans have lost their right to vote thanks to felony convictions as of the last election cycle. Making peaceful protestors felons for simple trespass seems extreme no matter which side of the aisle you sit.
YES, PEOPLE ARE ALREADY GOING TO PRISON
Red Fawn Fallis, Michael Little Feather Giron, Michael Rattler Markus, and 14 others are already in prison for protesting at Standing Rock in 2016. While protesting at Standing Rock, Fallis was tackled by police after an FBI informant planted a revolver on her. She’s serving four years in federal prison. Giron help set fires on barricades to block construction equipment from getting to the DAPL pipeline. He’s serving three years in prison. Markus is serving three years for also starting a fire on the Standing Rock protest site. It’s important to note that neither of the fires set by Giron and Markus damaged any DAPL property. Those fires simply barred entry of construction vehicles.
Do you see the throughline here? The bulk of these convictions are being handed down to Indigenous protestors (670 Indigenous protesters were arrested and charge at Standing Rock). The three mentioned above were all tried in state courts — North Dakota in these cases — and sent to federal lock up.
Being white and protesting a pipeline isn’t necessarily a get-out-of-jail-free card either. Climate activists Ruby Montoya and Jessica Reznicek are facing up to 110 years in prison for breaking pipeline valves on under-construction pipelines. They also set fire to construction equipment to impede the completion of a pipeline. They’re hoping to use the “necessity defense” to argue their case. That is, their actions in criminally dismantling the means of construction of pipelines is a necessary step in the fight against climate change. That withstanding, Montoya and Reznicek’s actions of trespass and the destruction of property mean they’re facing life in prison and hundreds of thousands in fines.
IS THERE ANY GOOD NEWS?
Yes, actually. Protestors in Massachusetts have been able to use the “necessity defense” to have their cases dismissed. In March of 2018, a Massachusetts judge cleared 18 protestors of a Spectra Energy pipeline protest of any wrongdoing given the “necessity” of stopping the expansion of the oil industry to realistically fight climate change.
Just this year in Washington State, Ken Ward was granted a new trial based on overwhelming evidence on climate change. Ward and his lawyers from the Civil Liberties Defense Center argued that his actions when turning off a valve (not destroying, simply turning it off) on an oil pipeline falls into a necessary action to fight climate change. However, don’t pop the champagne corks yet. Washington State is one of the battlegrounds ALEC is lobbying hard to enact felonious criminal charges for people like Ward’s actions.
In another stroke of good news, on October 24th, 2019, South Dakota’s governor and attorney general agreed to never enforce the laws put in place to prosecute pipeline protestors after a federal court decision. Part of the reason this fight was taken to the courts was a provision that extended the felonious penalties to anyone who “boosted” protests — with protests meaning of anything, not just of energy companies. That would have meant that anyone who sent out protest-related emails or bought a cup of coffee for a protestor or asked someone to join a protest would be under the same scrutiny and be subject to up to 25 years in prison.
The ACLU and local South Dakota attorneys fought hard and used the power of the First Amendment to point out the clear unconstitutionality of such a law. The federal courts agreed and South Dakota did the right thing and killed any plans of using the law. This feels like a step in the right direction as our constitutional right to freely and peaceably assemble and use free speech should be sacrosanct.
These laws are spreading like, well, wildfire. Since Texas enacted the most draconian of laws — 20 years in prison and fines up to $1 million — the Trump administration has followed suit and is working on making that the base for the federal law against protesting energy companies. It’s worth noting that the Texas law also holds landowners punishable to those penalities for protesting on their own land.
Translation: If you’re a law-abiding Texan and an energy company uses imminent domain to use your land for their pipeline and you protest that company on your land and get arrested for doing so, you could become a felon, go to prison for up to 20 years, and pay the energy company up to $1 million in damages. That’s the law the Trump administration wants to take nationwide.
Boiled down, these laws are doing more than just taking away our right to peaceably assemble and utilize our rights to free speech. They’re making people felons for doing so. All of that is before you even consider the eighth amendment issues of how $1 million fines and decades in prison contradicts our protections from excessive fines or cruel and unusual punishment, especially for something as minor as trespass.
WHAT CAN YOU DO RIGHT NOW?
“Unjust laws exist: shall we be content to obey them, or shall we endeavor to amend them…” — Henry David Thoreau, Civil Disobedience.
- Call or email your local representatives in both houses of your State Congress and tell them you don’t think protesting should be a felony offense.
- Call or email your federal representatives in both houses of the U.S. Congress and tell them you don’t think protesting should be a felony offense. (House directory and Senate directory).
- Call or email your governor if an anti-protesting bill is passed by the local legislature.
- Donate to the ACLU (they’re fighting these laws in the courts across the nation).
- Donate to the Civil Liberties Defense Center to help them provide legal access to protesters facing trial and prison.
And, if all else fails, it may be time to take to the streets and protest these laws from coast-to-coast. It’s our first amendment responsibility to do so.