New laws put our right to protest at risk

Recently, Transportation Secretary Elaine Chao announced a new proposal that protesters who block the construction of crude or natural gas pipelines could face up to 20 years in prison. The current law has a maximum penalty of 20 years in prison for damaging or destroying a pipeline. However, the new law would apply the penalty to vandalism, tampering, or impeding, disrupting or inhibiting operation of the pipeline. This new proposal is part of a periodic reauthorization pipeline safety rules. Skip Elliott, the head of the Department of Transportation’s Pipeline and Hazardous Materials Safety Administration, states that this proposal renews our commitment to pipeline safety by encouraging innovation and greater stakeholder collaboration.”

The purpose here is to intimidate individuals, communities, and organizations lawfully exercising their First Amendment and other fundamental rights. The growth of new pipelines and facilities expanding across neighborhoods and seizing private property has come with considerable controversy. The response among at least four different states is new laws penalizing individual protesters and the organizers of those demonstrations.  

Recently Texas Governor signed an anti protest bill, H.B. 3557 into law. This law makes it a third degree felony to damage or destroy a so-called critical infrastructure facility when they, without consent, enter or remain somewhere on the property and intentionally or knowingly damage or destroy the facility.  Texas defines “critical infrastructure” with such staggering breadth that an ordinary person may have no idea the place they stand is covered by this law’s increased penalties notwithstanding fencing or posted signage. The law creates confusion stemming from its blanket list of broad categories of places, objects, or general areas, which protestors must avoid.

The law includes any: chemical manufacturing facility, refinery, electrical power generating facility, substation, switching station, electrical control center, electrical transmission or distribution facility, water intake structure, water treatment facility, wastewater treatment plant, or pump station, natural gas transmission compressor station, liquid natural gas terminal or storage facility, telecommunications central switching office, port, railroad switching yard, trucking terminal, or other freight transportation facility, gas processing plant, including a plant used in the processing, treatment, or fractionation of natural gas, or a transmission facility used by a federally licensed radio or television station.  It also includes areas enclosed by a fence or other physical barrier obviously designed to exclude intruders from: any portion of an aboveground oil, gas, or chemical pipeline, an oil or gas drilling site, a group of tanks used to store crude oil, such as a tank battery, an oil, gas, or chemical production facility, an oil or gas wellhead, or any oil and gas facility that has an active flare. Tex. Gov’t Code §423.0045.

Most importantly, construction areas and all equipment and appurtenances used during that construction to the above list critical infrastructure. As a practical matter, construction site access roads to infrastructure facilities often are indistinguishable from other access roads, town roads, farm roads, or even residential driveways. In some cases, operators purchase roads or other property that were previously open to public use, to use in association with oil and gas production.

The 14th Amendment to the United State Constitution provides all of us Due Process of Law.  State laws can violate due process if they are too vague. Generally, criminal laws need to provide defendants fair warning or adequate notice of what the law expects; laws may not invite arbitrary enforcement, nor inhibit other protected freedoms, like speech.

Ohio’s SB 33 also calls for greater punishments for trespassers on facilities.  However, SB 33’s language leads to vagueness and confusion for Ohio citizens. For instance, Ohio’s bill includes facilities underground and above ground on public lands. These boundary lines are often unknown to the average person potentially subjecting Ohioans to criminal and civil liability without adequate notice that they are on facilities.

Under both Federal and Ohio law, pipeline companies may seize private property through the exercise of eminent domain. This has resulted in arrangements where residential property owners share their land with a facility. Sometimes, those arrangements go sour, particularly where the oil and gas lessee fails to behave as a good neighbor. If SB 33 becomes law, disputes between homeowners and pipeline companies could devolve into potentially subjecting Ohioans to criminal and civil liability for trespasses on their own land.

A complaint filed in South Dakota highlighted the vagueness in their bill. Dakota Rural Action v. Noem challenges the Riot Boosting Act. An act that can hold a person liable for if the person participates in any violent outburst, or encourages violent outburst. Plaintiffs argue that the act unconstitutionally targets protected speech, including pipeline protest. This law too is void for vagueness.

In White Hat v. Landry, community members, environmental justice advocates, and a journalist filed a lawsuit challenging Louisiana’s anti-protest  bill, House Bill 727.  This bill “amends the crime of unauthorized entry of a critical infrastructure and creates the crime of criminal damage to a critical infrastructure and the crime of conspiracy to commit either of these offenses.” The legal challenges mentioned in White Hat v. Landry are that the proposed amendment is “vague, overly broad, and sweeping in scope that people in the state cannot be sure” where the pipelines are and if they are or are not trespassing.  Also, the amendment is unconstitutional on its face because it does not provide adequate notice and targets speech and expressive conduct with a particular viewpoint for harsher punishment.

Unfortunately, these laws leave many citizens confused by their vagueness. People across the United States are facing serious punishment for entering an infrastructure facility without knowing it. Yet, The Trump Administration wants for tougher protest laws in the future.