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Analysis

Anti-Protest Laws Threaten Indigenous and Climate Movements

“Critical infrastructure” laws in over a dozen states wrongly invoke national security to justify targeting pipeline protesters.

March 17, 2021

In 2016 as a member of Congress, Deb Haaland stood for four days in solid­ar­ity with protest­ers at the Stand­ing Rock Sioux Reser­va­tion against construc­tion of the Dakota Access Pipeline. Today, as the first Native Amer­ican to be the secret­ary of the interior — the first to lead any cabinet depart­ment — she has the oppor­tun­ity to support the First Amend­ment rights of the protest­ers she joined in the past.

With her author­ity over energy devel­op­ment on federal lands, Haaland can be a voice for Indi­gen­ous and climate move­ments facing an urgent threat: the rapid spread of laws to protect “crit­ical infra­struc­ture” that single out activ­ists.

Since 2016, 13 states have quietly enacted laws that increase crim­inal penal­ties for tres­passing, damage, and inter­fer­ence with infra­struc­ture sites such as oil refiner­ies and pipelines. At least five more states have already intro­duced similar legis­la­tion this year. These laws draw from national secur­ity legis­la­tion enacted after 9/11 to protect phys­ical infra­struc­ture considered so “vital” that the “inca­pa­city or destruc­tion of such systems and assets would have a debil­it­at­ing impact on secur­ity, national economic secur­ity, national public health or safety.”

Many industry sectors are desig­nated crit­ical infra­struc­ture, includ­ing food and agri­cul­ture, energy, water and wastewa­ter, and commu­nic­a­tions, but most state crit­ical infra­struc­ture laws focus more narrowly on oil and gas pipelines. While protect­ing crit­ical infra­struc­ture is a legit­im­ate govern­ment func­tion, these laws clearly target envir­on­mental and Indi­gen­ous activ­ists by signi­fic­antly rais­ing the penal­ties for parti­cip­at­ing in or even tangen­tially support­ing pipeline tres­passing and prop­erty damage, crimes that are already illegal. Many laws are modelled on draft legis­la­tion prepared by the Amer­ican Legis­lat­ive Exchange Coun­cil, also known as ALEC, a power­ful lobby­ing group funded by fossil fuel compan­ies like Exxon­Mobil and Shell.

Cent­ral to the new crit­ical infra­struc­ture laws are increased crim­inal penal­ties and vague, broad defin­i­tions that could discour­age protest and partic­u­larly, nonvi­ol­ent civil disobedi­ence. Many laws make any “damage” to or “inter­fer­ence” with a facil­ity deemed crit­ical infra­struc­ture a felony. Under Ohio’s law, tres­pass with the purpose of “tamper­ing” with a facil­ity is a third degree felony punish­able by up to 10 years in prison and a $20,000 fine. In Indi­ana, a felony convic­tion is applied for any facil­ity tres­pass, a crime that is typic­ally a misde­meanor or fine.

Vague language like “damage,” “tamper,” and “impede” in crit­ical infra­struc­ture laws makes it unclear if, for example, knock­ing down safety cones and start­ing a fire next to a natural gas facil­ity are the same under the law. Many crit­ical infra­struc­ture laws do not clarify if they apply only to land a company fully owns or also to pipeline ease­ments, which run through both public and private lands. At least some laws apply to both. Only a week after Louisi­ana’s crit­ical infra­struc­ture law was enacted, oppon­ents of the Bayou Bridge pipeline were charged with tres­passing for boat­ing on public waters on the border of a pipeline ease­ment.

The combin­a­tion of overly broad language and steep penal­ties in crit­ical infra­struc­ture laws make it likely that future activ­ists and support­ing organ­iz­a­tions will be discour­aged from exer­cising their First Amend­ment-protec­ted protest rights. A lawsuit brought in response to the Bayou Bridge charges will test the laws for the first time on First Amend­ment grounds.

Many of these laws even extend beyond the protest­ers. In a proposed law in Minnesota, anyone who “recruits, trains, aids, advises, hires, coun­sels, or conspires” someone to tres­pass without a “reas­on­able effort” to prevent the tres­passing is guilty of a gross misde­meanor. In Oklahoma, organ­iz­a­tions that conspire with perpet­rat­ors are liable to be fined up to $1 million. These laws may infringe on the free­dom of asso­ci­ation protec­ted under the First Amend­ment. Indeed, the Supreme Court ruled that the illegal actions of a few indi­vidu­als do not implic­ate an entire group.

The crim­in­al­iz­a­tion of envir­on­mental protest is fueled by federal secur­ity agen­cies and oil and gas compan­ies, who are often major polit­ical donors. For years, the Depart­ment of Home­land Secur­ity and the Federal Bureau of Invest­ig­a­tion have labelled activ­ists at infra­struc­ture sites as domestic terror­ists and viol­ent extrem­ists in order to justify further surveil­lance and poli­cing. Govern­ment docu­ments have been released that detail the FBI’s focus on “Animal Rights/Envir­on­mental Extrem­ism,” describ­ing even nonvi­ol­ent protest­ers as extrem­ists.

At Stand­ing Rock, a private secur­ity firm hired by the pipeline compan­ies consist­ently referred to protest­ers as “terror­ists” while work­ing with law enforce­ment. Ahead of the Keystone XL pipeline protests in 2018, DHS agents held an “anti-terror­ism train­ing” for state and local author­it­ies. In contrast, members of the far-right milit­ant group the Three Percen­t­ers have estab­lished a signi­fic­ant pres­ence at oil and gas plants with little law enforce­ment reac­tion.

To be sure, as the recent power outages in Texas showed so vividly, the United States needs reli­able energy. But it’s ques­tion­able whether pipeline construc­tion sites that could feas­ibly be moved or replaced with renew­able energy sources should legit­im­ately be considered “vital” to the energy grid. Further­more, a singu­lar focus on this aspect of secur­ity comes at the cost of others. Whose essen­tial resources do pipeline projects protect and whose do they threaten? Black Amer­ic­ans are dispro­por­tion­ately likely to live near natural gas pipelines and exper­i­ence higher cancer risk due to unclean air. An oil spill from the Dakota Access Pipeline could devast­ate the Sioux Tribe’s water source. Mean­while, on some reser­va­tions, 10 percent of house­holds lack elec­tri­city and as many as 40 percent of house­holds must haul water and use outhouses. The well-being of these communit­ies must count too.

The rise in crit­ical infra­struc­ture laws may fore­shadow more anti-protest legis­la­tion to come. A similar wave of anti-protest laws has already begun in response to the 2020 Black Lives Matter protests. State legis­lat­ors contem­plat­ing crit­ical infra­struc­ture laws should bear in mind that laws that crim­in­al­ize tres­passing and protect the safety of construc­tion work­ers and law enforce­ment already exist. Crit­ical infra­struc­ture laws don’t fill an unmet need — they only raise the penal­ties for specific groups of people. Courts adju­dic­at­ing First Amend­ment chal­lenges in the coming years should recog­nize that these laws are over­broad and impose dispro­por­tion­ately severe penal­ties that chill free­dom of assembly and asso­ci­ation.

As secret­ary of the interior, Haaland prom­ises to uplift the voices of Indi­gen­ous and climate protest­ers in the Biden admin­is­tra­tion. State legis­lat­ors, law enforce­ment, and the fossil fuel industry should follow suit and listen to these activ­ists rather than suppress­ing consti­tu­tion­ally protec­ted activ­ity under the guise of national secur­ity.