How Fossil Fuel Might Use the COVID-19 Pandemic to Criminalize Pipeline Protests

A request on the industry's deregulation wish list could lead to more anti-protest legislation.

by | Apr 2, 2020

Last week we mentioned the pandemic wish list the American Petroleum Institute sent to President Trump as Congress negotiated the $2 trillion emergency stimulus bill.

The first item on that list, critical infrastructure designations for the entire fossil fuel supply chain, may sound like standard Washington bureaucratese. The wording is significant, though, because it could set up oil and gas companies to tap into a $17 billion pot of COVID-19 relief money targeted at industries deemed essential to national security.

But that’s just the beginning. If the Trump administration grants API, and the industry it represents, this favored designation, it may speed up the criminalization of protest against fossil fuel projects, a trend that’s been underway since long before the coronavirus pandemic.

In 2017, following the previous year’s multi-month standoff between Indigenous and other opponents of the Dakota Access Pipeline and a combination of North Dakota law enforcement and private security forces, an influential conservative activist group saw an opportunity to advance its pro-industry agenda.

That group, the American Legislative Exchange Council (ALEC), specializes in drafting model legislation that advances conservative political priorities, and then distributing these mock bills to state lawmakers to adapt and introduce to state legislatures. In the wake of the Dakota Access Pipeline protests, ALEC created a piece of model legislation entitled the “Critical Infrastructure Protection Act” targeted at protestors against anything designated “critical infrastructure,” and began circulating it among sympathetic state legislators.

The draft bill did two main things. First, it established criminal penalties for any person convicted of “willfully trespassing or entering property containing a critical infrastructure facility without permission by the owner.”

Additionally, and importantly, ALEC’s proposed legislation also set “criminal penalties for organizations conspiring with persons who willfully trespass and/or damage critical infrastructure sites, holding such organizations responsible for any damages to personal or real property.”

The model bill mentions a few other things in addition to oil and gas pipelines. But environmental justice, Indigenous rights, and climate activists have not been out in force for the past few years protesting wastewater treatment plants, mass transit systems, post offices, or even nuclear power plants, all of which are already designated critical infrastructure under federal guidelines, while fossil fuel pipelines are not (although they do get a mention as part of the energy distribution system). So it’s not hard to make an informed guess about who and what ALEC was targeting.

At a panel during the Energy and Mineral Law Foundation’s 40th annual Institute in 2019, Derrick Morgan, the top lobbyist for the American Fuel and Petrochemical Manufacturers, made it crystal clear. “At AFPM we represent the downstream sector in the oil and gas field, so refineries and chemical members,” he said. “So infrastructure is incredibly important to us. 43 million barrels per day or so of crude oil and products are transported every day. And there’s no cleaner, safer or cheaper way to deliver feedstocks and products than pipelines. And that tends to be what we think of when we think of critical infrastructure protection.”

As Alex Kaufman recently reported in HuffPost, since March 16 three state have quietly enacted their versions of the ALEC bill “amid the chaos of the coronavirus pandemic”: Kentucky, South Dakota, and West Virginia. All told, 11 states have passed laws based on ALEC’s model legislation since 2017, according to the International Center for Nonprofit Law, and similar bills are pending in 22 more.

Anti-protest bills are a nationwide trend. (Map: International Center for Nonprofit Law)

Anti-protest bills are a nationwide trend. (Map: International Center for Nonprofit Law)

The idea is creeping into Congress, as well. Last July, two-term Republican Sen. Deb Fisher of Nebraska and Democratic Sen. Tammy Duckworth of Illinois introduced the “PIPES Act of 2019.” The version that’s currently on the docket of the Senate Committee on Commerce, Science, and Transportation consists of pretty standard updates to pipeline safety regulations, but the original bill included language and ideas from ALEC’s model legislation. That earlier draft of the 2019 PIPES Act proposed to “strengthen the existing criminal penalty measures for damaging or destroying a pipeline facility,” including facilities under construction as well as completed pipelines, and specifying that “vandalism, tampering with, or impeding, disrupting, or inhibiting the operation of a pipeline facility are punishable by criminal fines and imprisonment.”

This language did not make it into the final bill, which is expected to pass, but it’s unlikely to be the last attempt at federal anti-protest legislation.

Getting not only drilling sites and pipelines designated as critical infrastructure, but the entire fossil fuel supply chain, as the API has requested, is not just a temporary fix to ensure oil and gas workers can continue working amid the pandemic. It also bolsters these efforts to pass anti-protest “critical infrastructure protection” bills in multiple states, and creates the potential for both individual protestors and groups organizing protests to be criminally charged.

In a bittersweet twist, just as three states enacted the latest batch of anti-protest laws, the Standing Rock Sioux Tribe — whose efforts to protect their Missouri River drinking water supply kicked off ALEC’s anti-protest legislation effort in the first place — won a major victory. The Trump administration has fast-tracked DAPL (which has already leaked oil five times, validating the Standing Rock Sioux Tribe’s fears that the pipeline threatens its drinking water source, the Missouri River). But in late March, a federal court ruled that the DAPL permits were invalid, and ordered the Army Corps of Engineers to conduct a full environmental review of the project.

If API’s wish is granted — and it is conceivably on the agenda of President Trump’s meeting with a cabal of fossil fuel executives this Friday — then the kind of activism that led up to that court decision will be closer to becoming a federal crime. If that happens, fossil fuel companies will be able to call upon federal law enforcement to undercut our First Amendment right to free assembly: one more taxpayer-funded favor to an industry that already gets over $6 billion a year in government subsidies, despite years of bad business decisions, and in spite of warnings by climate experts that to avert catastrophic climate change, it’s past time to stop building new fossil fuel infrastructure. The one thing that’s been most successful so far in slowing the construction of problematic pipelines could become illegal nationwide, and anti-pipeline activists transformed into outlaws.

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Amy Westervelt is the editor-in-chief of Drilled News, creator and host of the Drilled podcast, and founder of the Critical Frequency podcast network, named AdWeek's Podcast Network of the Year in 2019. An award-winning print and audio journalist, Amy has contributed to The Guardian, The Wall Street Journal, and The Washington Post, as well as KQED, The California Report, Capital Public Radio, and many other outlets. She is the 2015 winner of the Rachel Carson award for "women greening journalism," and a 2016 winner of an Edward R. Murrow award for her series on the impacts of the Tesla Gigafactory in Nevada. In 2019, the Drilled podcast won the Online News Association's "Excellence in Audio Storytelling" award.