Industry-designed bills to silence climate protests are under consideration in Arkansas, Kansas, Minnesota and Montana. More are likely to come.
By Alexander C. Kaufman, Huffington Post, Feb 2021
Dawn Goodwin spent her 50th birthday among towering pines and yellow birches whose tree rings make her lifespan seem like a child’s in comparison. But on that cool, overcast Saturday in December, the growling of construction trucks and chainsaws drowned out the natural soundscape of gushing freshwater and wind whispering between pine needles on the banks of the Mississippi River.
Goodwin was at this river crossing near Palisade, Minnesota, to protest the construction of the energy company Enbridge’s Line 3 pipeline, a $9.3 billion project to carry tar-sands oil ― one of the dirtiest varieties of crude oil ― from Joliette, North Dakota, to a terminal facility in Clearbrook, Minnesota. From there, it’s distributed to refineries. Goodwin winced as workers felled a mighty spruce while clearing a 50-foot berth for the pipeline, its sappy rings laid bare as its crown thudded to the ground.
“At that moment, the tree just spoke to me, saying, ‘I’m being disrespected. I am medicine. And they’re just cutting me and throwing me aside with no care,’” said Goodwin, who lives on the White Earth Reservation and goes by the Ojibwe name Gaagigeyaashiik. “I just felt like I needed to go and pick it up, so I walked over.”
Without realizing it, she’d stepped over an invisible border and had officially trespassed into a construction site. Within seconds, half a dozen police officers surrounded her, carrying zip ties to arrest her. Video footage of the incident shows her ― bundled in an oversize green hoodie, a black winter jacket and matching mittens ― apologizing repeatedly as fellow activists chant, “Let her go.” It proved enough to talk the officers down to a misdemeanor citation. She’s due in court next week.
Under a new bill in the Minnesota legislature, Goodwin could face much steeper consequences. Had any of her fellow activists caused even minor damage to equipment at the site, the bill could’ve held virtually anyone even remotely involved — especially those caught trespassing — liable for the damage, threatening protesters with up to 10 years in prison and $20,000 in fines.
An activist wouldn’t even need to be convicted of trespassing to be held liable ― an arrest is enough under the legislation.
“It is extremely draconian,” said Teresa Nelson, the legal director at the American Civil Liberties Union of Minnesota. “We don’t impose those kinds of punishments on people in any other part of our statutory code.”
Minnesota’s bill is tougher than similar legislation proposed in other states, but it’s not unique. The legislation follows a model that’s been approved in 14 states and is also under consideration in Arkansas, Montana, and Kansas. The model designates ― if it isn’t already so ― any oil, gas, coal, or plastics facilities as “critical infrastructure” and adds aggressive new penalties for vague charges of trespassing or tampering.
This special status is normally given to dams and nuclear reactors, and allows lawmakers to increase criminal penalties for commonplace protest at these sites, such as blocking a roadway, tethering oneself to equipment or even just rallying near a company’s property. In many cases, any person or organization associated with an individual activist convicted of breaking the law can be held accountable. What was once a misdemeanor is now reclassified as more severe crimes ― in some cases, even felonies ― with fines of tens of thousands of dollars, and convictions can sometimes carry jail sentences.
The uptick in these proposals is a sign that state lawmakers are using the deadly Jan. 6 Capitol riot to justify new restrictions on peaceful demonstrations that are meant to prevent protests in the first place, free-speech experts say.
“When someone has to weigh the potential of imprisonment for protesting, they will really, very likely limit their own speech,” said Nora Benavidez, director of the advocacy group PEN America’s U.S. free expressions program. “These bills are just a chilling effect on protest.”
Imprisoning Slaves’ Descendants, Bankrupting Tiny Churches
The similarities among the state bills are no accident.
The legislation is based on a model bill that the American Legislative Exchange Council (ALEC), a right-wing policy shop funded by corporations and conservative billionaires, drafted and began promoting to Republican state lawmakers in the wake of the fight over the Dakota Access pipeline project. State disclosure records routinely show lobbyists for companies such as Enbridge, Exxon Mobil Corp., Koch Industries and Marathon Petroleum consulting lawmakers on the legislation.
Bills of this type have surfaced in roughly half of states over the past four years, but they’ve passed at a more rapid pace since the start of the COVID-19 pandemic. As the country fell into crisis, the governors in Kentucky, South Dakota and West Virginia all signed legislation in the middle of March 2020.
Some bills have proven too harsh even in states where the fossil fuel industry is most powerful. Louisiana’s Republican-controlled legislature, for example, passed a bill last May that would have imposed mandatory three-year prison sentences for trespassing on fossil fuel sites. It potentially created a scenario where the state would’ve needed to jail elderly Black women seeking recognition of a slave burial ground that possibly contained their ancestors’ remains. The state’s Democratic governor, John Bel Edwards, vetoed the bill.
Yet, brutal outcomes for typically sympathetic figures have done little to dissuade other governors. Ohio Gov. Mike DeWine (R) signed a bill last month that religious leaders warned could bankrupt “some tiny little church in the middle of Appalachia that’s trying to protect its people from pollution,” the Rev. Joan VanBecelaere, executive director of Unitarian Universalist Justice Ohio, told HuffPost in December.
The Green Bogeyman
That bills are predicated on the idea that fossil fuel protesters are becoming more violent is somewhat ironic. The model for the legislation came in response to the Dakota Access pipeline conflict, in which militarized police and private security forces brutalized environmentalists and Indigenous activists who for months camped out at the site of the proposed oil project. At least 300 unarmed protesters were injured in a single day, and one woman nearly lost her arm following a crackdown by police. The heavily armed security forces reported no similar injuries. Subscribe to the Politics email.From Washington to the campaign trail, get the latest politics news.
That didn’t stop the industry groups pushing the bill from suggesting that the legislation was needed to stem the risk of violent protest. In December 2017, five energy trade groups and a big oil company sent a letter to lawmakers listing six examples of threats environmentalists posed to their infrastructure.
Only one example actually involved environmentalists. During the Dakota Access fight, activists clipped the locks on fenced-in portions of a connected oil pipeline in the Midwest and closed the valves, briefly cutting off the flow of oil to refineries. The demonstrators were arrested and prosecuted under existing laws. The other five examples had nothing to do with protesters, and were instead loosely bound by mental illness or workplace grievances.
The fearmongering harkens back to the years immediately after the Sept. 11, 2001, terrorist attacks, when the FBI declared ecoterrorism the biggest domestic threat and used the sweeping surveillance and law enforcement measures passed under the Patriot Act to harass environmental radicals. As a young journalist working for the Chicago Tribune in 2002, Will Potter fell into the federal government’s crosshairs when FBI agents threatened to make life “very difficult” for him if he didn’t agree to become an informant on the animal rights group he and his girlfriend had protested with months earlier. In 2018, Potter compared the ALEC bill to the post-Patriot Act crackdown.
“It’s about installing fear so they don’t go out and protest in the first place,” Will Potter, author of “Green Is The New Red,” told HuffPost at the time. “The purpose of this law isn’t to wrap everybody up and send them to federal prison. It’s to scare people, to create fear.”
The Latest Wave
The Minnesota bill faces dim prospects of becoming law in a state where Democrats control the governor’s mansion and half the legislature. Earlier versions of the bill, introduced in 2018, 2019 and 2020, all failed to reach the floor for a vote.
The legislation could, however, win approval in Arkansas, Montana, Kansas.
The Arkansas bill designates a range of fenced-off areas associated with natural gas and oil production and storage as “critical infrastructure.” Purposely entering or remaining on such infrastructure would be a Class D felony, punishable by up to six years in prison and a $10,000 fine, according to the International Center for Not-For-Profit Law’s U.S. Protest Law Tracker.
The bill makes causing “damage” to critical infrastructure a Class B felony, punishable by up 20 years in prison and a $15,000 fine, though the legislation does not define what constitutes damage. That means “protesters who hold a peaceful sit-in at a pipeline construction site and paint protest slogans on construction material, for instance, could face lengthy prison sentences,” the ICNL stated on its website.
“One might hope that any reasonable prosecutor, judge, or jury would only use such a charge to go after people who compromise public safety in a very serious way,” Connor Gibson, an independent researcher who tracks anti-fossil fuel protest bills, wrote in a newsletter about the Arkansas bill earlier this month. “But do you want to be the one to test that theory?”
The Montana bill, introduced last month, is more standard. The legislation labels virtually any coal, natural gas or oil facility “critical infrastructure” and makes trespassing “without permission by the owner of the critical infrastructure, on conviction” a misdemeanor “punishable by a fine of not more than $1,500 or by imprisonment in the county jail for not more than 6 months.” Trespassing with the intent to vandalize would be “a felony punishable by a fine of not more than $4,500 or by imprisonment for not more than 18 months, or both.” Tampering with the facility or causing any damage would amount to “a felony punishable by a fine of not more than $150,000 or by imprisonment for not more than 30 years, or both.”
Like the other bills, the Montana legislation threatens that “any organization found to be a conspirator” with individuals convicted on any of those charges “shall be punished by a fine that is 10 times the amount of the fine provided for the appropriate crime.” The legislation defines an “organization” broadly as “a group of people, structured in a specific way to achieve a series of shared goals.”
The bill is set for a hearing before the Montana Legislature’s Judiciary Committee next Wednesday.
The legislation in Kansas stands out for its creative expansion of existing racketeering laws ― the kind that’s put in place to help prosecute organized crime syndicates, like the Mafia ― to cover those who “commit, attempt to commit, conspire to commit or to solicit, coerce or intimidate another person to commit” acts such as trespassing on fossil fuel companies’ property.
Critics say the bill is mostly about politics, a way for its author, Republican state Sen. Mike Thompson to signal his climate-denying views now that he’s serving as chair of the Senate’s utilities committee.
“There is no anti-pipeline movement in Kansas in particular, and there’s never been any kind of protest or civil disobedience at any kind of fossil fuel site,” said Rabbi Moti Rieber, executive director of the Kansas Interfaith Action, a religious coalition that advocates for climate action in the state. “So this is a bill that addresses a problem that doesn’t exist.”
Thompson did not respond to HuffPost’s request for comment on Monday.
At a hearing on Tuesday, officials from two of the oil and gas industry’s top trade groups ― the American Fuel & Petrochemical Manufacturers and the American Petroleum Institute ― testified in favor of the legislation. API’s Kansas representative, J. Kent Eckles, said “environmental attacks on our industry” made the measures necessary.
Reading between the lines, Rieber said the legislation was meant to dissuade groups like his from taking part in future protests by raising the risk that a demonstration could hold a church, temple or mosque liable for thousands of dollars in fines if one of its members is convicted under the statute, if it passes.
“There are people of faith who are concerned about climate change as a religious imperative, and you can imagine something where they’d do a public witness at a fossil fuel installation,” Rieber said. “This is meant to intimidate people from taking action.”
It’s a sentiment that resonates with Goodwin. On the day she was cited, she had spent hours praying beside the gushing river and connecting with the spirits who she believes have guided the Ojibwe for generations. She sees herself as “protecting my homeland, my treaty and my religious freedom.” She’s afraid of what might happen if the legislation passes, but she said she won’t be deterred.
“I want to cry, but I’m so angry I can’t cry,” Goodwin said. “It gives me more energy to try even harder to stop them.”