by Alleen Brown / The Intercept
June 5, 2019
Photo caption: “Native American tribal members and supporters march at Oceti Sakowin camp on Dec. 4, 2016, to protest the Dakota Access oil pipeline in Cannon Ball, N.D.”
Photo: David Goldman/AP
Legislation proposed by the Trump administration would prescribe up to 20 years in prison for “inhibiting the operation” of an oil or gas pipeline — or even conspiring to do so. Since Donald Trump was inaugurated, at least 17 states have introduced bills that would criminalize participation in pipeline protests. But this is the first time the tactic has been formally proposed by the executive branch. If it were to pass, it would strike a major blow to the climate movement, putting anti-fossil fuel organizers at significant legal risk for simply providing training or logistical support to peaceful protesters.
The criminal penalties are part of a proposal to reauthorize pipeline safety programs at the Pipeline and Hazardous Materials Safety Administration. The proposal, which Transportation Secretary Elaine Chao delivered to Congress on Monday, echoes language from a model bill promoted by the right-wing American Legislative Exchange Council, whose members include legislators and oil industry lobbyists. Eight state legislatures have passed laws similar to the ALEC model.
Activists fighting fossil fuel extraction have long been the most confrontational arm of the U.S. climate movement, with participants routinely standing in the way of pipeline construction. Thousands of people showed up to support the Standing Rock Sioux Tribe in its effort to stop construction of the Dakota Access pipeline over concerns that pipeline leaks would harm the reservation’s primary source of drinking water.
From the early days of his presidency, Trump made a point to tip the scales in favor of highly controversial oil and gas pipelines; one of his first executive orders was designed to expedite DAPL construction and lift a halt imposed by former President Barack Obama.
But it’s another pipeline fight that stands to be most impacted by the proposed federal legislation. The Keystone XL tar sands oil pipeline launched the U.S. pipeline opposition movement back in 2011, and it still has yet to be built. Trump has issued multiple executive orders to push it forward, but it remains mired in legal challenges. If it begins construction, opponents, many from the same Indigenous nations as the anti-DAPL organizers, have promised another Standing Rock.
Meanwhile, with the pipeline industry booming, communities are organizing against numerous projects across the United States. In Louisiana, for example, multiple people were arrested under the state’s ALEC-inspired law while protesting construction of the Bayou Bridge oil pipeline.
The Center for Constitutional Rights is challenging the Louisiana law on First Amendment grounds. Pam Spees, the attorney representing pipeline opponents in the case, said the goal of the Trump administration’s proposal is clear. “We already know from the way similar legislation has been applied in Louisiana what the true aim of this bill is to chill and eliminate opposition to these projects.”
The Pipes Act
Current federal law protecting oil and gas pipelines from sabotage is already strong. Anyone who damages or destroys a pipeline or pipeline facility — or conspires to do so — faces up to 20 years of incarceration. If the sabotage causes a death, then the saboteur could face life in prison or even the death penalty.
The Trump administration is seeking to widen the law’s scope even further. Under the proposed Protecting Our Infrastructure of Pipelines and Enhancing Safety Act of 2019, known as the Pipes Act, anyone found “vandalizing, tampering with, impeding the operation of, disrupting the operation of, or inhibiting the operation of” an interstate oil or gas pipeline could also face a 20-year prison term, as could anyone who conspired to do so. And the proposal would add pipeline construction sites to the list of facilities covered by the law.
In effect, simply standing in the way of construction workers could mean staring down two decades in prison.
The Pipeline and Hazardous Materials Safety Administration, which proposed the legislation, denies that chilling speech is the intention. “This proposal is not meant in any way to inhibit lawful protesters from exercising their First Amendment rights, and PHMSA is committed to working with Congress to make sure that this is clear in any final legislation,” agency spokesperson Darius Kirkwood told The Intercept. “PHMSA supports broadening statutes to deter individuals from activities that can cause serious harm.”
Kirkwood said the agency has significant safety concerns and pointed to a case in Minnesota, which is in the midst of a debate over the proposed expansion of the Enbridge Line 3 pipeline. In February, four pipeline opponents associated with the Catholic Worker movement turned aboveground valves on the Line 3 and Line 4 oil pipelines. The activists said they contacted Enbridge in advance, however, allowing the company to shut off the pipelines remotely. The valve turners said they took action “in solidarity with the most vulnerable worldwide who suffer the greatest impact from climate change.” They were charged with felonies that carry a maximum of five years in prison and $11,000 in fines.
As another example of the agency’s safety concerns, Kirkwood pointed to an advisory bulletin PHMSA released to pipeline owners and operators in December 2016, which describes another incident in which activists turned valves to shut off oil pipelines. The bulletin reveals that the draft legislation isn’t the first time that the agency has pushed for enhanced policing of pipeline opponents. “A strong relationship with local law enforcement is extremely beneficial for safe pipeline operations,” the notice stated. “Relationships should be cultivated well in advance of an incident to facilitate mutually dependable communication during an incident.”
The bulletin encouraged pipeline owners to increase the frequency of security patrols, which “may help inform pipeline companies of individuals who regularly congregate near a pipeline.” It also encouraged operators to “consider the use of new technologies to aid in pipeline security patrols, such as unmanned aerial systems,” also known as drones.
The Price of Protest
As the crackdown on pipeline protest goes federal, states continue to be a laboratory for new and creative ways to deter protest.
In at least two states, a new model of anti-pipeline protest law is evolving, designed to transfer the costs of policing demonstrations to the protesters. In March, South Dakota passed a law that creates new financial penalties for “riot-boosting,” which will be deposited into a fund for law enforcement and emergency management. And a bill under consideration in Pennsylvania would hold any demonstrator convicted of a felony or misdemeanor accountable for the costs of policing the demonstration. The bill, which cites the public cost of managing the Dakota Access pipeline protests, defines “demonstration” as including “the holding of vigils or religious services.”
The American Civil Liberties Union has filed a lawsuit challenging the riot-boosting law in South Dakota on the basis that it’s unconstitutionally broad and violates First Amendment speech rights. The Oglala Sioux tribal council banned Gov. Kristi Noem from the reservation in response to the legislation.
Grassroots organizers in multiple states have also been rising up. On Friday, dozens of community members in Lancaster, Pennsylvania, demonstrated outside the office of state Sen. Scott Martin, who has sponsored multiple anti-protest bills. They’ve launched a “Keep Free Speech Free” website and plan to run a candidate against Martin in the 2020 election.
“We have every intention of making him as vulnerable as possible,” said Mark Clatterbuck, whose property was in the path of the Atlantic Sunrise natural gas pipeline, according to early construction plans. That pipeline was completed last fall, despite demonstrations and legal challenges. But Pennsylvania is one of the centers of America’s fracking boom, and organizers are determined to defeat anti-protest legislation in anticipation of future fights. “It’s only a matter of time,” Clatterbuck said.
Of course, if the Trump administration proposal were to become law, it would supersede any gains made locally by the Lancaster organizers.