Red States Are Criminalizing Speech to Wage War on Environmental Activists

By Luke Darby, GQ

08 June 19

Protesting oil pipeline construction now carries felony charges in multiple states.

ate in 2016, thousands of indigenous and environmental activists came together in North Dakota to protest the construction of the Dakota Access Pipeline. The Standing Rock Sioux tribe maintained that the multi-state-spanning pipeline jeopardized both their burial sites and clean water supply, and they led a months-long encampment to stop the construction. Police used brutal tactics to try to break up the camp, turning water cannons on the protesters in below-freezing temperatures and throwing flash-bang grenades into crowds, nearly blowing off the arm of at least one activist. An exhaustive investigation by The Intercept even found that the company building the pipeline, Energy Transfer Partners (ETP), hired a private mercenary firm called TigerSwan to infiltrate the camp, coordinate with local police, and use counterterrorism tactics against the protesters.

For a moment, the activists looked like they had won, when then-president Barack Obama's administration denied a permit that the Dakota Access Pipeline needed to continue construction. But then Donald Trump came into office, immediately reversed the decision, and the activists withdrew and razed the camp as they left. ETP had secured its victory, but only after tremendous financial costs and terrible publicity—a Pew Research Survey found that 48 percent of the country was opposed to the pipeline's construction. Meanwhile, the state of North Dakota spent $38 million policing the protests.

With that in mind, the Republican lawmakers in Oklahoma—a state that, like North Dakota, is greatly dependent on the fossil-fuel industry—introduced legislation to make sure nothing like the Standing Rock protests happened there. In 2017, Governor Mary Fallin signed a law that imposed a felony charge and a minimum $10,000 fine on anyone who enters pipeline property to "impede or inhibit operations of the facility." If they successfully "impede or inhibit operations," the charge is $100,000 or ten years in jail.

That sounds steep but maybe not necessarily unreasonable, since we are talking about property damage. But Oklahoma's new trespassing law also holds liable "anyone who compensates, remunerates or provides consideration to someone who causes damage while trespassing," according to Public Radio Tulsa. The wording is almost deliberately vague, easily covering organizations and environmental groups that might even be only tangentially related to the person charged with trespassing. And a provision in the bill states that just an arrest—not a conviction—is enough to trigger that liability.

Other states quickly followed Oklahoma. After Louisiana passed its own version of the bill, police arrested 15 protesters with the L'Eau Est la Vie camp, charging them with interfering with construction of the Bayou Bridge Pipeline, yet another ETP project. South Dakota introduced bills that not only impose civil penalties on anyone who "directs, advises, encourages, or solicits other persons participating" in protest riots, but also establish an extra fund to pay for the costs of policing pipeline construction. And in Texas, under House Bill 3557, damaging oil and gas facilities that are under construction would be criminalized as a third-degree felony, which carries up to ten years of jail time. Protesters who “impair or interrupt” operations could be imprisoned for two years. All told, there are now at least six states that have passed or introduced legislation aimed at criminalizing pipeline protests.

It's no coincidence that so many states introduced similar legislation at the same time. The American Legislative Exchange Council is a coalition of conservative lawmakers and private business interests who work hand in hand to churn out model bills for legislators to copy and introduce in their home states. This way, Republican-controlled states can quickly and easily pass business-friendly legislation, usually crafted by the industries that would benefit the most. ALEC was instrumental, for example, in pioneering tougher drug-sentencing laws and mandatory minimums, laws that reaped monstrous profits for ALEC-affiliated Corrections Corporation of America and Geo Group. After Oklahoma's anti-pipeline protest laws passed, ALEC published the remarkably similar "Critical Infrastructure Protection Act,".

Pipeline opponents are fighting back. Environmental groups, arrested protesters, and local land owners are currently suing the state of Louisiana, according to Reuters. In South Dakota, the Oglala Sioux Tribal Council voted unanimously to ban Republican governor Kristi Noem from visiting Pine Ridge Reservation after she signed similar laws. And environmentalists managed to defeat an anti-protest law in Illinois.

On Monday, though, the federal government got involved. The Pipeline and Hazardous Materials Safety Administration, an agency in the Department of Transportation, unveiled a proposal that also looks to be closely modeled on ALEC's example, according to Politico. But the penalties are even more extreme, threatening up to 20 years of prison time. In a statement to Politico, a spokesperson wrote, "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."

Of course, if a lawmaker can criminalize what a protester is doing, then they're no longer a "lawful protester." Or if they're intimidated into staying home in the first place, then they aren't even a protester anymore. Either way, it's a fine outcome for the company building the pipeline, and for the legislators working with them.