Critics say 'critical infrastructure' bill meant to stifle protest
Oct. 04, 2019
Bills before many state legislatures - including Ohio's - would increase penalties for protesting infrastructure projects such as pipelines. Supporters say they're meant to protect property and safety. Critics say they're an industry-funded attempt to stifle free speech.
Gas, oil and chemical pipelines — and fights over them — are proliferating. As they do, so are laws that would increase criminal penalties for trespassing on so-called "critical infrastructure."
Ohio could get such a law soon.
While supporters of the bills say they're meant to keep people safe, critics say they're an industry-funded attempt to scare people and groups from protesting.
Since 2016's intense protests against construction of the Dakota Access crude-oil pipeline, nine states have increased criminal penalties for certain activities related to protests, making some felonies. The bills also have created a means to go after the groups to which protesters might belong.
Leading the charge in creating the laws has been Findlay-based Marathon Petroleum Corp. and Koch Industries, said Connor Gibson of the environmental group Greenpeace.
"In some form, this bill has popped up in a couple dozen states," he said, adding that they're patterned after model legislation written by the American Legislative Exchange Council.
In Ohio, Senate Bill 33 passed the Ohio Senate in May and has been assigned to the House Public Utilities Committee. Among its other provisions, the bill would make it a Class A misdemeanor to "knowingly enter or remain on a critical infrastructure facility." That would include pipeline rights of way, even when they're on public land or protesters have property owners' permission to be there.
Class A misdemeanors are publishable by up to a year in jail and a $1,000 fine. But the bill would allow authorities to charge people with a third-degree felony if they "knowingly destroy or improperly tamper with a critical infrastructure facility." Those crimes are punishable by up to three years in prison and a $10,000 fine.
Destruction happens. Only Wednesday, two women were charged in federal court for damage they allegedly caused to heavy equipment used in the Dakota Access project in Iowa in 2016.
But how does one define "tampering"? Would standing in the right of way to block progress of a project qualify?
As in other states, pipelines have spurred protest in Ohio. People in the northeastern part of the state have protested the NEXUS natural gas pipeline project that last year dumped 20,000 gallons of drilling fluid into a tributary of the Maumee River. And in Cincinnati, a community group has gotten local governments on board to try to stop an effort by Duke Energy to run a 20-inch gas pipeline through a number of residential communities.
Mick Luber got Kinder Morgan to abandon plans to run a pipeline across his Cadiz-area organic farm by publicizing how the project would harm his soil. But he said sometimes further measures are necessary.
"Sometimes the only way to deal with these projects is if somebody puts their feet on the soil in front of them so they can't run helter skelter," he said.
None of the Senate Bill 33 supporters reached by The Dispatch would answer directly when asked what "tampering" means. Marathon spokesman Jamal Kheiry said, "With safety in mind, we support policies aimed at stopping individuals who intentionally seek to damage critical infrastructure in the energy, manufacturing, telecommunications and transportation industries."
The industry group that represents energy and pipeline companies echoed the safety theme.
“There is nothing more important to the fuel and petrochemical industries than the safety of our people, our communities and our facilities — and willful, disruptive, and dangerous interference with critical infrastructure puts that safety at risk," a spokeswoman for the American Fuel and Petroleum Manufacturers Association said in an email.
The bill's sponsor also declined to define "tampering."
“As a retired Navy SEAL Sen. Hoagland fought for our constitutional rights to free speech," Ohio Senate GOP spokesman John Fortney said in answer to questions put to the bill's sponsor, Frank Hoagland of Mingo Junction. "This bill does two things: It protects our critical infrastructure facilities from those who want to do more than exercise their constitutional right to free speech, while at the same time protecting the right of those who want to protest lawfully.”
Senate Bill 33 also carries a provision aimed at groups that support protesters who might show up at pipelines, refineries, coal mines or other "critical infrastructure." It says any organization that is "complicit" in destroying or tampering with critical infrastructure "shall be punished with a fine that is ten times the maximum fine that can be imposed on an individual for a felony of the third degree." That would be $100,000.
"This is designed to discourage protest," said Gary Daniels chief lobbyist for the American Civil Liberties Union of Ohio. He added that the amorphous terminology in the bill and the threat of a huge fine might make groups decide "perhaps it's better for us to just not protest."
The spokeswoman for the fuel and petroleum manufacturers disagreed. "Our advocacy is intended to protect public safety and private property, not chill First Amendment rights, which don’t entitle a person to destroy property or create public hazards,” she said.
Daniels pointed to another provision of the proposal that might be ominous from a First Amendment standpoint. It would punish people who have authorized access to "critical infrastructure" when "such authorization was secured by deception."
Daniels said that could be aimed at people who take jobs at places such as coal mines or refineries with the goal of exposing unsafe practices there.
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