After Standing Rock, Protesting Pipelines Can Get You a Decade in Prison and $100K in Fines

Jerri-Lynn here. I’m posting this piece as it’s the most comprehensive recent analysis of the topic I’ve seen. Five states  have enacted laws criminalizing pipeline protests, and seven others are considering similar measures.

Common Dreams also published a piece on Friday discussing the situation in Texas, where legislators are mulling legislation, Texas State Bill Would Make Protesting Pipelines a Felony on Par With Attempted Murder:

“Texas aims to make pipeline protest a third-degree felony, same as attempted murder,” climate activist Bill McKibben tweeted on Friday.

In a tweet, the advocacy group Public Citizen described the legislation as “an oil and gas backed effort to squash environmental protest.”

“This needs to be a nation-wide story,” the group said.

By Naveena Sadasivam, a staff writer covering the environment, energy and climate change at The Texas Observer. Originally published at Grist

Cherri Foytlin and her fellow protestors spent much of last summer suspended 35-feet in the air in “sky pods” tied to cypress trees. They were hoping to block the Bayou Bridge Pipeline from running through their part of Louisiana.

At the time, Energy Transfer Partners was building the pipeline to move oil between Texas and St. James Parish in southern Louisiana, crisscrossing through the Atchafalaya Basin, one of the largest swamps in the country. Foytlin and others with the group L’Eau Est La Vie (“Water Is Life”) set up wooden platforms between trees along the proposed path of the pipeline. The construction crew couldn’t build the pipeline with a protestor dangling above.

Though the protesters were on private land with the landowner’s permission, some were eventually arrested by St. Martin’s Parish Sheriff’s deputies in mid August. The pipeline was completed in March, yet Foytlin could still face up to five years in prison and $1,000 in fines.

That’s because Louisiana’s Governor John Bel Edwards, a Democrat, signed HB 727 into law last spring, making trespassing on “critical infrastructure” property a much more serious crime than garden-variety trespassing. What was once a misdemeanor is now a felony. The law takes a broad view of what’s “critical”: pipelines, natural gas plants, and other facilities, as well as property on a proposed pipeline route, even if the pipeline isn’t there yet.

Foytlin is one of at least 16 people in Louisiana who’ve been arrested and charged with felonies under the new law, according to Loyola University law professor Bill Quigley, who’s representing Foytlin. All of them were jailed and had to post bonds, some as high as $20,000 to get out. The district attorney hasn’t officially charged any of them yet, Quigley said.

“These are people saying let’s make sure we have something left for future generations in the most beautiful swamp in the world,” Foytlin said. “And for that we were charged with felonies, we were beaten, we were stepped on, I was choked.” To her, the law allows the state to jail people for unpopular political views. (Messages left with the St. Martin Parish Sheriff’s Office weren’t returned.)

The effort to punish pipeline protestors has spread across states with ample oil and gas reserves in the last two years and, in some cases, has garnered bipartisan support. Besides Louisiana, four other states — Oklahoma, North Dakota, South Dakota and Iowa — have enacted similar laws after protests against the Dakota Access Pipeline generated national attention and inspired a wave of civil disobedience.

Just last week in Texas, House lawmakers passed a bill that makes interfering with some oil and gas operations a third-degree felony — on par with indecent exposure to a child.

Lawmakers in at least seven other states, including Minnesota, Kentucky, and Illinois, are considering similar legislation.

All these efforts have garnered broad support from the oil and gas industry. And many of the bills bear a startling resemblance to model legislation being pushed by the American Legislative Exchange Council, a conservative nonprofit backed by the Koch Brothers.

They have a lot in common. For starters, they heighten penalties for damaging oil and gas infrastructure and for trespassing with the intent to disrupt operations. Some mete out punishments of up to 10 years in prison and $100,000 in fines.Others would penalize organizations that “aid” protesters, making environmental groups liable for the actions of their members.

“This law is unnecessary,” said Elly Page, an attorney with International Center for Not for-Profit Law, a group that has been tracking this legislation around the country. “Trespass is already a criminal offense under the law. Damaging private property is already a criminal offense. These create really egregious penalties for conduct that’s already penalized.”

The Forces Behind the Scenes

By the beginning of 2017, hundreds of protesters at Standing Rock had spent months clashing with law enforcement and private security guards hired by the pipeline company Energy Transfer Partners. Videos of law enforcement blasting protesters with water cannons had gone viral, and the Cheyenne River Sioux tribe filed suit to block the pipeline. Inspired by those protests, a coalition of Native American and environmental activists in Oklahoma announced they planned to stop construction of the Diamond Pipeline, which would carry oil from Cushing, Oklahoma to Tennessee.

That February, a Republican member of Oklahoma’s state House, Representative Mark McBride sponsored a bill raising penalties for trespassers on property with oil and gas infrastructure and holding any “person or entity that compensates or remunerates a person for trespassing” liable. McBride said at the time that the idea for the bill came from protests against the Dakota Access Pipeline. When asked how he would define “compensates,” he punted, saying it “would be for the courts to decide.”

Gov. Mary Fallin signed McBride’s bill into law three months later, along with another piece of legislation that created penalties for protesting near facilities considered “critical infrastructure.” Protesters in Oklahoma can now face a fine of up to $1,000 and six months in jail, and organizations that “compensate” them are liable for up to $1 million.

That caught the attention of ALEC. The influential group takes corporate money and drafts ready-made legislation for lobbyists and lawmakers. It has been behind the effort to exempt Big Oil from having to disclose chemicals in fracking fluids and pushed so-called ag-gag laws, which stymie undercover investigations of agricultural operations.

At a national conference organized by ALEC in December 2017, the group’s Energy, Environment, and Agriculture task force proposed a model bill titled the “Critical Infrastructure Protection Act.” A few months later, ALEC’s board signed off on the bill, and it soon appeared on the organization’s website. Bills with similar language then began cropping up in state legislatures.

In March 2018, then-Louisiana State Representative Major Thibaut, a Democrat, introduced HB 727, the one that landed Foytlin in jail. That same month, Wyoming and Minnesota passed similar legislation which was later vetoed by their governors.

Oil and gas lobbyists have also been backing legislation penalizing protestors. In state after state, representatives for Big Oil were an overwhelming majority of those testifying and registering as lobbyists in support of the proposals.

This January, a lobbyist working with the American Fuel and Petrochemical Manufacturers wrote to Mississippi Governor Phil Bryant’s policy advisorpromoting legislation “to provide for criminal penalties for those who wilfully and illegally trespass, disrupt, destroy” oil and gas facilities. The lobbyist noted in his email that he was “expecting a bill from Chairman [Angela] Cockerham and Chairman [Sally] Doty,” two members of the state’s legislature representing each side of the aisle. Doty and Cockerham introduced bills that fit his description in the Mississippi House and Senate that week.

The Second Wave

Environmental advocates who’ve been tracking these anti-protest bills say 2019 has ushered in a second wave of them. And ALEC appears to be cheering them on. In February, as a cold snap gripped the Midwest and Northeast, ALEC’s Grant Kidwell sent an email to members of the group’s Energy, Environment and Agriculture task force noting that Illinois, Indiana, Mississippi, and Wyoming had introduced legislation with similar language to their model bill. “The frigid temperatures brought by the polar vortex this week serve as a reminder of the important [sic] of energy infrastructure,” he wrote. “Thankfully, states have recognized the important [sic] of critical infrastructure and are moving to protect it.”

[Copies of the ALEC newsletter and emails by lobbyists were obtained by Documented, a watchdog group that tracks corporate influence on public policy, and provided to Grist.]

Texas has seen a handful of prominent pipeline fights in recent years, including ones opposing the Trans-Pecos pipeline near the Texas-Mexico border and the southern segment of the Keystone XL pipeline. Environmental groups and landowners are currently trying to stop construction of the Permian Highway pipeline, a 430-mile conduit to move natural gas from West Texas to the Gulf Coast.

The legislation could have a chilling effect on private landowners who’ve played a large role in fighting pipelines in Texas, said Judith McGeary of the Farm and Ranch Freedom Alliance, an advocacy group for independent farmers.

Valero has been building a pipeline through McGeary’s 165-acre farm in central Texas. A few weeks ago, McGeary, the daughter of a Holocaust survivor, said she found a swastika painted on the pipeline on her property. Suspecting that members of the construction crew were involved, she locked the gates to her farm and demanded that Valero send new workers. McGeary said Valero responded by threatening to sue for up to $500,000 in damages for interfering with construction. (Valero did not respond to a request for comment.)

“This was a horrible experience for us as it was,” she said. “We look at this legislation and they could’ve been threatening to have the sheriff come and pursue us for third degree felonies — for locking the gate for a weekend. It’s an incredible overreach.”

Environmental advocates see a key difference between the states that considered such bills last year and this year. In 2018, the vast majority were Republican-controlled and had significant oil and gas resources. Now the effort is spreading to states run mostly by Democrats, like Illinois, and devoid of large oil and gas deposits, like Kentucky. Illinois, for instance, is considering a bill that would make trespassing on critical infrastructure property a Class 4 felony, in line with obstruction of justice, criminal sexual abuse, and parental kidnapping.

‘Damn It, We’re Going to Go All In.’

Activists and First Amendment advocates are fighting back. In South Dakota, after Governor Kristi Noem championed bills that prohibit “riot-boosting” and enable the government to collect damages from protesters, the Oglala Sioux Tribe told her she’s “not welcome” on their reservation.

“These are our lands and our water,” the tribe’s president, Julian Bear Runner, wrote in a letter to Noem. “If you do not honor this directive … we will have no choice but to banish you.”

The ACLU has also filed suit challenging South Dakota’s new law on behalf of a handful of environmental and indigenous rights groups. Vera Eidelman, a staff attorney with the ACLU, pointed to one provision that allows the government to collect damages from protesters and use the money to cover the expenses of law enforcement.

“Meaning, essentially, if you protest the pipeline and are held liable under this law, you have to pay damages, and you are in fact funding this thing that you protested,” Eidelman said.

Quigley, the law professor representing Foytlin, said he plans on challenging Louisiana’s law as unconstitutional in federal court. “The law infringes on the First Amendment right to protest by being so vague that it can be used in an arbitrary and discriminatory manner as it was [with Foytlin],” he said.

For her part, Foytlin says such laws won’t deter her or other advocates from protesting pipelines. In fact, they might backfire.

“People will continue to go to prison.” she said. “They think that by upping the punishment they’re going to keep people from protesting, but what will happen is we’re going to do things that are more worth getting the felony. Because now if we’re going to jail, then damn it, we’re going to go all in.”

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  1. PlutoniumKun

    I was involved in direct action protests against road and oil schemes in the UK back in the 1990’s, and it was obvious to me at the time that the main police strategy was to focus on the more middle class middle aged ‘regular’ protestors. They probably quite rightly judged that people in regular jobs with mortgages were far more frightened of a night or two in jail and even a minor criminal conviction than young crusties. Plain clothes officers would follow people like that around with video cameras and people were often arrested under powers supposedly aimed at raves and football hooligans. They never hesitated to lie on oath to magistrates and judges.

    The strategy was pretty successful – once the protests were reduced to a hard core of activists, they could be ‘dealt with’ without the press kicking up too much of a fuss. It seems like in Texas they don’t go for this sort of subtlety, its the direct hammer approach.

    1. petal

      PK, I imagine it has only gotten worse over time. People’s job security is pretty non-existent, and you get sued for ridiculous amounts of money. So now you don’t dare step out of place for fear of losing everything forever. It is so easy to be ruined permanently…and the companies and police know it. Pretty smart, really. If you are looking to crush dissent across the board, it’s a pretty effective way to go about it.

      1. JBird4049

        I think it is bad enough that a growing number of people really do have nothing left to lose, which as the saying goes, is just another word for freedom.

        1. petal

          I am one of those getting to that point-am teetering on the edge. Was thinking about those very lyrics on Friday.

    2. anonymous

      the 100 anniversary of the peterloo massacre is only 3 months away. Even the Guardian hasn’t seemed to notice. the demonstration was made up of, as you say, people with regular jobs — something to lose.

      “Stand ye calm and resolute, like a forest close and mute . . .

      . . . Ye are many — they are few!” Masque of Anarchy always helps. (Shelley came from what Chris Arnade would call the front row.)

  2. Svante

    Mariner East, Constitution, Atlantic Coast pipelines were all stopped for compelling reasons, beyond promoting slick-water fracking/ wet gas cracking (and transportation of lethal ethane, ridiculously close to schools, crowded neighborhoods, for shady foreign conglomerates). This was always about individual criminal politicians working for K Street employers and ALEC end-running regulation, not to mention property rights, due process, local laws by buying off the folks both parties ALLOW us to vote for.

    1. jefemt

      There is also the element of NIMBYism… Much of the nation and world’s energy is produced in flyover country— out of sight, out of mind. The Other.

      But, put it in the backyard of a fairly affluent well-heeled higher wage area like the east coast, where power and money reside, well… viz wind-generation off of Cape Cod areas.

      If you have not seen If a Tree Falls, y’outta… I am amazed to see it up on youtube for ‘free’

      1. Svante

        Truer words, seldom spoken! We’d dined at NY’s ugly Hudson Yards with hep relatives here from Berkeley, totally unaware their tremendos organic food was irrigated with fracking return water, NooYawkCiddyz GND comes down to replacing toxic Mob fuel oil with NEPA fracked gas for scores-of-thousands of OLD boilers, or that due to ROOSKI pipelines, bypassing Ukraine and second thoughts about hooking the south on a collapsing pyramid scheme. Ethane was all the DNC’s rage, simultaneous with plastic bag and strofoam bans. All, very confusing to fahklempt boomers, trapped perpetually into virtue signalling based on blog aggregators SEO’d onto their iPhones via Google, FaceBook & Comcast/ Disney/ CNN?

        1. Cal2

          Svante, Don’t assume people know of the truth you speak:

          Certainly conventional agriculture is watered with carcinogens like benzene, ,
          I don’t think California Certified Organic Farmers, CCOF, can use fracking water, might be wrong.

          Irrigation water appears to be a major loophole in the USDA’s organic food safety program.U.S.D.A. Organic, is a much lower standard than CCOF.

          Some brands watered with it:

          1. Svante

            It means NOTHING to them, aside from, “Not more cognitive dissonance harshing my buzz,” pout. Sounds familiar, huh? All my ofay ‘bagger buddies awoke one day to discover a cute, hip, black nerd guy with a “mooslim” name was about to take away the expensive autoloading rifles they’d never wanted, previously. Same insipid drooling, dead-eyed, glaze. Same, “but, I’ve done everything they’d told me to do?”


      1. Svante

        Thank you. Wonder, where we can move? Seemed lots of climatologists figured State College, PA was not amenable to fracking, had plenty of clean water and would be more like TN or VA, growing season-wise. One such friend ended up right in the way of Mariner Too, the Sequel. There IS no option, now?

  3. Jonathan Holland Becnel

    Ive met Cherri and shes a badass.

    We must continue disrupting pipelines before they pollute the swamp and all the crawfish get poisoned.

    No Bayou Bridge Pipeline!

    1. Svante

      Wasn’t that pipe rolled at Wellspun/ Little Rock… Jesus!

      Too BAD, nobody on that crew will EVER blow a whistle. So much for my crawfish boudin & Nutrea rat addiction!

  4. rps

    In the book “After Oil“, Rachel Havrelock and other academic participants discuss Petroculture. “Petroculture emphasize the ways in which post-industrial society today is an oil society. It is shaped by oil in physical and material ways, from the automobiles and highways we use to the plastics that permeate our food supply and built environments. Even more significantly, fossil fuels have also shaped our values, practices, habits, beliefs, and feelings. These latter can be difficult to parse. It might be easy to point to a highway interchange and understand its relationship to our oil culture, but it is much harder to name and isolate the ideals of autonomy and mobility, for instance, that are just as strongly linked to the historical conditions of a fossil fuel society. In a very real way, these values are fueled by fossil fuels, as are so many of the other values and aspirations that we have come to associate with the freedoms and capacities of modern life. It is in this sense that we are a petroculture; and it for this reason, too, that transitioning from fossil fuels to other sources of energy will require more than new energy technologies. We will need to transform and transition our cultural and social values at the same time.”

    1. Cal2

      Meanwhile, our soldiers are dying and getting mutilated fighting in Iraq, and other Oil Rich Middle Eastern plays, the Golan Heights, the latest, if you consider our troops in Syria as part of that.

      They are allegedly “fighting for our freedom.”
      What freedom?

      The freedom to assemble and protest peacefully on U.S. soil? Or,
      Corporate Freedom, to build pipelines, enforced by eminent domain and low ball prices to property owners? For which freedom are they dying and getting mutilated?

      Instead of “Thank You For Your Service, our veterans who served over there should get a special credit card that allows them to buy gasoline, heating oil and oil products with a say, 75% discount over retail, subsidized by the oil companies for which they risked their lives.

      1. wilroncanada

        Adjusted narrative:
        Meanwhile, our soldiers are killing as many people of all sizes and shapes as they are ordered to kill, in Syria, in Afghanistan, and any other countries they are ordered to invade. They are told they are fighting for our freedom, our freedom to kill as many people of all sizes and shapes as they are ordered to kill, ad infinitum. They have been taught well, by our exceptional ethos, to obey authority, and boy do they.
        Then there are our mercenaries, our spy agencies, our NGOs, in more than 200 countries, busy either taking part in the killing, or bending decency, along with international laws,to coerce, convince, or bribe all the rest of the world to adopt our exceptional way of life and death.
        Until mother nature finishes fighting back by finishing all of us.

  5. MaxFinger

    Energy Transfer Partners have a terrible track record.

    5,475 days, 527 pipeline spills: that’s the math presented in a new report from environmental groups Greenpeace USA and the Waterkeeper Alliance examining pipelines involving Dakota Access builder Energy Transfer Partners (ETP). It’s based on public data from 2002 to 2017

    The record speaks for itself.

    Energy Transfer Partners is also behind the 700-mile natural gas pipeline Rover, which last spring spilled 2 million gallons of drilling mud into an Ohio wetland, which “coated the area with a layer of mud and impacted water quality.” Regulators found traces of diesel fuel in samples taken from the spill. Shader said that diesel contamination of drilling fluid is “incredibly unusual.” An analysis by Bloomberg in August found that Rover had “racked up more environmental violations than other major interstate natural gas pipelines built in the last two years.”

    Loyola University law professor Bill Quigley, who’s representing Foytlin, agaist charges of protecting wetland destruction from the pipeline, is a personal friend. His work has been on many fronts, standing up for the environment when our voices often fall on deaf ears.

  6. GM

    These sorts of stories have a rarely discussed but quite important implication.

    Next time you see an “anti-fascist” SJW mob show up enraged on the grounds of some unfortunate university and start being extremely disruptive and unpleasant with its behavior (while protesting against how “oppressed” they or some other group of people are), and yet nobody does anything to stop it, keep in mind what happened to the pipeline protesters and to Occupy Wall Street before that.

    When the powers that be want you gone, your protest will be dispersed, with quite brutal force.

    A corollary of that is that when the mob is not dispersed, it is probably not the case that the mob inconveniences them or is undesired in any way.

  7. drumlin woodchuckles

    If protesting a pipeline gets the same penalty as blowing up a pipeline, people against pipelines might decide to blow the pipelines up. Might as well make the punishment worthwhile.

    Meanwhile, how might several million personally motivated personal-spending targeters be motivated to target their spending away from the gas and oil sold by particular companies to be moved over particular pipelines?

    Every dollar is a bullet on the field of economic combat. People who can not even be bothered to strangle down their own personal consumption of politically-targetable goods and services will not be bothered to exert any energy on politics or voting either.

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