Above Photo: Under a proposed Louisiana law, peaceful protests like 350.org’s “Draw the Line on Tar Sands and the Keystone XL pipeline,” in the French Quarter in New Orleans on September 21, 2013, bear the possibility of prison sentences as long as 20 years, or fines of up to $10,000. (Photo: Julie Dermansky / Corbis via Getty Images)
On April 12, 2018, in the chambers of the Louisiana State House of Representatives, Rep. Major Thibaut Jr. stepped up to the microphone before the Speaker to introduce seemingly benign House Bill 727. According to his testimony, the bill was humble — almost technical — in scope and aimed primarily to add “pipelines” to the list of what the state considers “critical infrastructure.” It had faced no opposition in committee, Thibaut added, and had “over sixty-something authors.”
The bill would impose severe penalties on peaceful protesters engaged in nonviolent civil disobedience actions at sites considered “critical infrastructure”.
“It’s a good bill,” he said, then motioned for favorable passage. Ninety-seven legislators voted yay, three voted nay, and just like that, all 4.6 million residents of Louisiana took a step toward losing their First Amendment rights. Should the bill become law, it would impose severe penalties on peaceful protesters engaged in nonviolent civil disobedience actions at sites considered “critical infrastructure” by Thibaut’s bill. In fact, simply planning to take such an action, considered “conspiracy” by HB 727, could be punishable by fees of up to $10,000 and prison sentences as long as 20 years.
With the crack of a gavel, Louisiana joined the growing number of states across the nation with similar “critical infrastructure” bills moving swiftly through the courts and onto governors’ desks.
The first appeared in Oklahoma in May 2017. According to the bill’s author, Rep. Mark McBride, it was an attempt to keep Oklahoma from paying costs related to any Diamond Pipeline protests. The law beefed up penalties for protesters who trespassed on property containing a “critical infrastructure facility.” The definition of such facilities varies by state but tends to include energy-industry sites like pipelines, refineries and electrical power facilities.
Since the ALEC Summit, bills like Louisiana’s HB 727 have cropped up all over the country.
Shortly after Oklahoma signed the bill into law, the American Legislative Exchange Council (ALEC), a corporate-funded group that holds annual meetings with state legislators and lobbyists to vote on “model” legislation, took the measure up itself at its summit in Nashville, Tennessee, in December 2017. ALEC calls its model bill “The Critical Infrastructure Protection Act,” claiming the bill drew its “inspiration” from laws enacted in 2017 by the State of Oklahoma.
Since the ALEC Summit, bills like Louisiana’s HB 727 have cropped up all over the country. In Ohio, where construction on the Rover pipeline resulted in repeated spills of toxic drilling material, Senate Bill 250 suddenly appeared. Its language reflects the ALEC-inspired bill, aiming to “prohibit criminal mischief … on a critical infrastructure facility.” It would also impose fines on organizations “complicit” with said activity.
In Iowa, Senate Study Bill 3062 penalizes those who’d commit “sabotage” of critical infrastructure facilities with fines of up to $100,000 and 25 years in jail.
In March 2018, lawmakers in Minnesota introduced HF 3693, which would, among other things, criminalize anyone who “recruits, trains, aids, advises, hires, counsels, or conspires with” a trespasser at an infrastructure site. Minnesota courts could use the law to punish these “conspirator” groups or individuals with a full year in jail and/or a $3,000 fine.
Louisiana House Bill 727, introduced in late March, is even more severe than the original ALEC-inspired legislation. If enacted, the law could potentially penalize people who never even set foot on one of its protected sites. Under the bill as written, simply discussing a possible trespass action could result in prison sentences of five years and fines up to $10,000. Actually damaging pipeline infrastructure could lead to 15 years in jail, and it could lead to 20 years if the damage interrupts construction site operations or endangers human life.
It remains unclear how the conspiracy clause of this bill would be enforced in Louisiana, should the measure become law. In a phone interview with Truthout, Alicia Cooke of the volunteer climate activist group 350 New Orleans wondered aloud, “How do you prove that someone is conspiring to trespass on property? Versus conspiring to gather near property?”
In recalling a recent protest march that 350 New Orleans organized in St. James Parish, Cooke said participants reported feeling “the shadow of the law” that day as they marched down public roads past Entergy facilities. “I worry that if we did something like that again … if someone just put a toe out of line on that marching route onto Entergy’s property, it might be construed as a malicious act and give [authorities] cause to arrest someone,” Cooke told Truthout.
The bill’s author, Rep. Thibaut, said in House Chambers on April 12, 2018, that it would “give law enforcement the tools they need to protect our people.” Opponents, however, note that private property protections and trespassing measures are already on the books in Louisiana. Instead, opponents of the bill argue that the measure is meant to silence groups opposed to the construction of the Bayou Bridge Pipeline. A 162-mile crude oil transport line that would serve as the final leg of the Dakota Access Pipeline, Bayou Bridge Pipeline LLC is a joint venture of Energy Transfer Partners and Phillips 66.
“There’s no question about the timing,” Anne Rolfes, the founding director of the environmental justice nonprofit Louisiana Bucket Brigade, told Truthout in a phone interview. “It’s a really clear puppet string between the oil industry and Energy Transfer Partners and our legislature.”
The bill comes on the heels of a recent victory in the courts by the Atchafalaya Basinkeeper and other local environmental groups. In late February, a federal injunction by US District Court Judge Shelly Dick temporarily prohibited Energy Transfer Partners from continuing pipeline construction work in the Atchafalaya Basin “in order to prevent further irreparable harm” to the ecosystem, which includes both old-growth cypress trees and crawfishing grounds for local fishermen.
It’s the ultimate irony … we’re not considering our own water, our own forests, our own wetlands to be critical infrastructure.
Weeks later, however, the 5th Circuit Court of Appeals granted Bayou Bridge Pipeline LLC’s appeal request for a stay on the temporary injunction. The three-judge panel was divided. The majority decision held that Dick abused her discretion when granting the injunction. Dissenting Judge Davis, in contrast, held that the environmental assessment report “did not comply with the National Environmental Policy Act” by adequately detailing how construction-related damage done to the environment would be properly mitigated.
The original suit filed by the Atchafalaya Basinkeeper, among other organizations, is slated to be heard by the 5th Circuit Court of Appeals in Houston on April 30, 2018.
In contrast to the relatively benign activities of the environmental activists in the state — holding up banners and staging ad-hoc musicals at pipeline worksites — oil and gas companies in Louisiana have already wreaked substantive harm on the wetlands. Beyond supplying estuary habitat for one of the most robust fisheries in the nation, Louisiana’s coastal marsh plays a major role in protecting inland communities by attenuating storm surge and high winds from hurricanes.
Damage to the health of the wetlands, in fact, is likely to be far more costly to the state in the long run than temporary work stoppages due to activism along the Bayou Bridge Pipeline construction route. Over the next 50 years, the Coastal Protection and Restoration Agency intends to pay $644 million to restore the nearly 2,000 miles of coastal wetlands that have been lost to open water in the past 80 years. Research shows that oil and gas activities, particularly the dredging of at least 10,000 miles of canals to allow access to oil wells and other structures, are to blame for a significant portion of this land loss. One study, published by researchers at Louisiana State University, investigated land loss in three southeast Louisiana basins since 1956. They found that “canal dredging significantly and directly related to wetland losses,” noting that for each hectare (a little over two acres) of canal dredged, there was a corresponding net loss of 2.85 hectares of land over the 34-year time frame of the study.
Beyond dredging-related damage to the wetlands, Louisiana can also expect more oil spills from the Bayou Bridge Pipeline. Energy Transfer Partners, Sunoco and their subsidiaries reported 527 pipeline spills from 2002-2017, averaging approximately one incident every eleven days, according to a recent report issued by Greenpeace USA and Waterkeeper Alliance. These accidents spilled 3.6 million gallons of crude oil and other hazardous liquids — enough to fill five-and-a-half Olympic-size swimming pools.
“I am very deeply concerned about the Bayou Bridge Pipeline Project and the potential for Energy Transfer Partners to repeatedly break the law and do harm to many waterways across the state,” said Donna Lisenby, a campaign manager with the Waterkeeper Alliance and one of the co-authors of the report, while speaking to reporters on April 17, 2018.
Unfortunately, a quick survey of Representative Thibaut’s campaign contributors over the years — which include donors like Atmos Energy, Exxon and Chevron — suggests he may be tempted to prioritize the wishes of corporations over scientific recommendations or the constitutional rights of his constituents. Now that the Louisiana bill has passed through the House, it will travel to the Senate for debate. Meanwhile, in Ohio, Iowa and Minnesota, state lawmakers are pushing their versions of the ALEC-inspired bill through committees and legislative chambers.
“It’s the ultimate irony,” said Cooke. “We’re considering critical infrastructure to be pipelines, oil refineries, and oil wells. But we’re not considering our own water, our own forests, our own wetlands to be critical infrastructure.”
Cooke, who continues to organize with 350 New Orleans against the bill, said she felt sad about it all, adding, “It just shows what we’ve chosen to prioritize in Louisiana.”
Rolfes, however, sees reason for hope. “Resistance to fossil fuels in general and oil specifically is growing,” she said. “Although it’s disheartening to see these bills, it shows you the status of their industry. Their future is on shaky footing.”