21 min read

Drilled Down: Another Line 3 Battleground—Free Speech

Drilled Down: Another Line 3 Battleground—Free Speech
Gichi-gami Gathering to Stop Line 3 in Duluth (credit: Fibonacci Blue).

We’ve covered the ongoing, fossil fuel-backed push to criminalize protest before. In 2017, Oklahoma passed the first of these bills, specifically citing the Standing Rock protest of the Dakota Access Pipeline in North Dakota. Then American Fuel and Petrochemicals Manufacturers (AFPM), the trade group for refineries and petrochemical facilities, crafted sample legislation based on the Oklahoma bill, and pushed the American Legal Exchange Council (ALEC) to adopt it. In 2020 , the Covid-19 pandemic slowed things down a bit, but in 2021 things are speeding up. In January, Ohio passed a bill that’s been debated for years, bringing the total number of states with so-called “critical infrastructure laws” in place to 14.

What’s defined as critical infrastructure varies a bit from state to state, but pipelines are always included; penalties range, too, but across the board these laws increase both the criminal and financial penalties of protest, potentially landing protestors in jail for years with fines up to $150,000. It’s worth noting that all of these states have trespassing and property damage laws already, it’s not as though those things have been going unpunished; the new laws merely make the consequences much tougher. They also add penalties for organizers and organizing entities. In Montana, for example, a proposed bill would fine organizations up to a million dollars for being involved in protest.

All of which comes into play in Minnesota, where the fight against Line 3 is underway. There are currently six bills under consideration in the state, packaged into four legislative packages. If any of them pass, not only could protestors be facing stiffer penalties but also the organizations involved, most of them led by Native women, could find themselves slapped with large fines too.

In this interview, researcher Connor Gibson walks us through the origin of these laws, why they’re picking up steam, and what to expect this year.


Connor Gibson: There’s only one state this year that really has a high profile pipeline protest going on, that’s Minnesota.

PBS News Hour: 30 years ago this week, the line three pipeline in northern Minnesota ruptured, spilling one point seven million gallons of crude oil into a frozen river near Grand Rapids, Minnesota. If the river had not been frozen, the oil could have seeped into the Mississippi River and contaminated drinking water for millions. Downstream protests have been ongoing to stop construction, rerouting a section of the line three pipeline, which could impact indigenous communities and local waterways.

Amy Westervelt: Hello and welcome to Drilled, I’m Amy Westervelt. You might have heard recently about the Line 3 pipeline project in Minnesota. Some people are calling it the next Standing Rock because it’s been at the center of protests for years, particularly from indigenous tribes in the area. Activist and author Winona LaDuke has been involved in that fight for seven years. Here she is talking to PBS news about it earlier this month.

Winona LaDuke: I’m a grandmother, you know, and we’re standing out there. I have six charges against me for this pipeline. And there’s a bunch of us that are facing charges for, you know, trying to be a water protector.

PBS News Hour: LaDuke and others have been part of this seven year fight opposing the project throughout the state and federal review processes.

Winona LaDuke: It is the largest tar sands pipeline in the world. This pipeline is the equivalent of 50 new coal fired power plants. So, you know, if you’re trying to save the planet, this is not the way to do it.

Amy Westervelt: I couldn’t get to Minnesota myself. I’m not vaccinated yet, so I don’t want to impose myself on the community. Plus I have kids. But also this is one of those stories where I want to hear from local, and particularly Native journalists. I did want to see, though, whether the evolving Line 3 story dovetailed at all with something else I’ve been tracking: fossil fuel-backed anti-protest bills. I’ve written about this a few times. A bunch of other journalists have done some great reporting on it as well. There’s some good stuff in Huff Post and The Intercept. I’ll drop some links in the show notes for those of you who want to read more.

These bills have been passed in 14 states now and proposed in about half the states in the country. They differ a little bit from state to state, but in general they increase the fines and jail time associated with trespassing dramatically. They often bump trespassing up from a misdemeanor to a felony. And they seem to be specifically targeting organizers and the organizations they work with, with steep penalties for organizing or training activists who then trespass. So even if the organizer isn’t there at the protest, they can still be charged.

And it turns out there are six—six—anti-protest bills making their way through the Minnesota state legislature right now. Some of them are bundled together, so it amounts to four different legislative packages. But still, that’s a lot. And it’s important because on top of cracking down on pipeline protests, there’s growing concern that these bills will be used to quell other sorts of protests, too. And remember, Minnesota was ground zero for last summer’s Black Lives Matter protests in the days after police murdered George Floyd.

To talk about Minnesota’s proposals, where these laws came from in general and how they’re moving through the country right now, I asked researcher Connor Gibson to join me. He’s been keeping tabs on these bills really since they started to pick up steam in the wake of the Standing Rock protests. That conversation coming up right after this quick break.

Amy Westervelt: It seems like all of a sudden the pace has picked up again, but I don’t know if that’s just like a feeling or if that’s actually what happened. So I’m curious to see what you’ve seen on that front.

Connor Gibson: Yes, it is the case that the fossil fuel infrastructure, anti protest bills are currently gaining steam in the 2021 legislative sessions of many states. I think the main difference between this year and last year is last year the pandemic really just messed up the strategy. We still saw plenty of bills and laws passed in twenty twenty. But I think it’s it was reduced by the impact of the pandemic, the confusion and cancelations and delays that caused the state legislature. So I suspect what we’re seeing in twenty twenty one is a lot of what companies intended to do last year. They just weren’t able to do as much as quickly as they would have liked. But that said, bills still passed into law during the pandemic in West Virginia and Kentucky. And this year we’re seeing more states continue the trend, including some states that failed to pass bills last year, like Illinois, like Alabama. And there’s only one state this year that really has high profile pipeline protests going on, that’s Minnesota, with the Line 3 revamp being done by Enbridge and being hastened along by many other players in the oil industry, so that makes the situation a little bit more relevant and urgent in Minnesota than in other states. I can’t tell you why Arkansas cares so much; its big pipeline resistance kind of happened a couple of years ago with the Diamond Pipeline, right.

Amy Westervelt: Connor, did that come into play in Oklahoma, too? Is it the same pipeline, the Diamond pipeline?

Connor Gibson: I want to say yes.

Amy Westervelt: Yep, it was. I checked. So in early 2017, local newspapers in Arkansas and Oklahoma were reporting that tribes, mostly in Oklahoma, did not approve of the Diamond Pipeline and that several Indigenous activists plan to protest it. There was a lot of hand-wringing about whether this would be the “next Standing Rock.” I’m noticing a theme here. In February 2017, Oklahoma Representative Scott Biggs proposed the anti protest bill that the rest would be based on. Here’s a bit of tape from that session. The person you’ll hear pushing Biggs for answers is Representative Cory Williams.

Rep Scott Biggs: This issue has definitely risen to the level of concern here in Oklahoma, giving our state status as an oil producer, energy producer and what’s going on in other states. So we took what happened or what bill we passed last year with the critical infrastructure bill regarding flying drones over refineries or Cushing or places like that. And we’ve now expanded that to provide some greater protection for those those critical infrastructures that are necessary for the state to operate. So the proposed committee sub basically lines out. Trespassing helps defines what critical infrastructure is and provides for some enhanced penalties for damage caused by trespassing.

Rep Cory Williams: Thank you, Mr. Chairman. When I was looking through some of the definitions on this, and I am. A lot of them I can see, but a couple of them, I thought, well, that’s pretty open ended if we wanted to prosecute it just as railroad tracks. That’s that’s pretty open ended thing to consider to be critical infrastructure that would have this enhanced penalty along with it. I mean, I understand like a power generation facility and substations and things like that. I guess my question is twofold. Do you think that in a couple of these definitions might be a little bit open ended and allow some abusive prosecution? And then secondly, can you tell can you elaborate more on you said that this has risen to the level of a need. Can you describe the incident that there are incidents that have brought to the forefront?

Rep Scott Biggs: Answer your questions, number one. Absolutely not. I do not believe the prosecutors are abusive in their discretion and their role and their function to protect the state. I know you disagree with me on that. And we have for four years. But no, they’re not abusive in their discretion. No, I do not disagree, you know, agree with you that these definitions are open ended. I believe that if you have an issue with the rail industry, I’m pretty sure the rail industry could demonstrate how they’re vital to Oklahoma. You know, there in Cushing, just south of your district, is extremely vital. The oil gas industry for all the rail pumping in this crude oil, because the pipelines have been protesting, the pipelines have been built. So now they’re using rail to move that oil, to move those products into our state.

Amy Westervelt: The Oklahoma bill was pointed to as the one that all the other bills were modeled after, but not without some help from the fossil fuel industry. In fact, industry reps were there the day Oklahoma’s bill was introduced. Ready to answer questions

Rep Cory Williams: in your last response, I didn’t actually hear you elaborate on the incidents. It was it just the pipeline incident or I don’t think they did damage to property, but obviously There,

I’m pretty sure they did a whole lot of damage to property in North Dakota.

Is that.

Yes, please join if you want to learn more. We actually have a meeting here at four o’clock today with some individuals from North Dakota that are here to talk to us, talk to the industry about what they’re having to deal with, the aftermath of those protesters up there as four o’clock and McBryde as sponsoring that open meeting to the public. But, yes, that is the main reason behind this.

Amy Westervelt: So there’s a bit of background on the origins of these bills. Now back to my conversation with Connor for more.

Amy Westervelt: OK, so actually maybe I’ll have you back up a little bit and give folks a brief sort of history of these bills that, you know, they sort of started to appear with the Oklahoma bill shortly after Standing Rock, and very much were a reaction to that protest.

Connor Gibson: Sure thing. I’m actually going to take us way back in time to September 11th, 2001, terrible day in world history when the World Trade Centers went down and the Pentagon was attacked and the country was in a state of fear and confusion and very much ready to accept some draconian government restrictions in the name of our national security and not having to live through anything like that. Again, there were some industries that were starting to have this kind of conversation and the first more coherent discussion that I saw about critical infrastructure. And upping penalties for people that are trespassing on it or near it or certainly damaging any of the equipment, those conversations, as far as I can tell, were starting to happen in two thousand three, two thousand four. There was a law that was passed in Louisiana, Act one fifty seven, that set in motion the idea that there would be heightened penalties for trespassing on critical infrastructure sites. I don’t think oil pipelines were included efforts in that Louisiana law. They added that in twenty fifteen. But at that point, some companies, including oil companies, started talking about this. And there is a group that’s similar to ALEC, but not nearly as captured and partizan called the Council of State Governments. It is a bipartisan consortium of state legislators. They do produce some model legislation in a way that’s similar to ALEC. But in addition to working in ways that are much more broad than Alec does a bunch of different kinds of legislative trainings and working groups on various issues, the Council of State Governments produced a a report that was financed by BP and others that embellished upon some of this. And then I couldn’t really tell you what happens between twenty six and twenty fifteen. As far as my research went, there didn’t seem to be any major events, but twenty fifteen. And this is before standing rock and before the Dakota Access Pipeline was being hotly protested, Louisiana started updating that critical infrastructure law that it had passed in 2004.

Amy Westervelt: Interesting.

Connor Gibson: And. It wasn’t until 2017 the end of the year, December, that the American Legislative Exchange Council ended up creating a model bill, which is just to say that there were some states starting to field test different avenues with which to restrict oil and gas. Protesters specifically including Alabama, including Michigan, including Washington, they just hadn’t taken coherent shape in terms of this play that we’re seeing now where it’s felony level penalties for people who are committing nonviolent acts of trespass, coupled with compounded fines and jail sentences, often for organizations or individuals who are found to be affiliated with those protesters. They don’t have to have trespass themselves. They don’t have to have damaged anything themselves. If they’re affiliated with somebody that did they wind up being charged in the first state to pass both of those things in a pretty clear and coherent way with Oklahoma in 2017. And that’s usually where the story starts in terms of people that are following and talking about the issue.

But I do think it’s important to know that it didn’t just explode randomly or not so randomly, but in reaction to standing rock, there was activity happening in a lot of these states leading up to that point. And in twenty seventeen things really became codified into the strategy that we’ve seen. It was later that year the American Legislative Exchange Council passed its model bill internally within itself at a meeting in December of that year. And there’s really there was some excellent reporting that was done that actually has really helped inform and understand how this trend took off. There was a letter that was written to the legislators who participated in that specific ALEC meeting in December 2017. They had not yet approved this critical infrastructure felony law template law yet. And the American Chemistry Council, which is chemical manufacturers, lobbyists, and the Edison Electric Institute, which is electric utility lobbyists and the American Fuel and Petrochemical Manufacturers, which is the refinery companies, in addition to Marathon Petroleum and the American Gas Association, which is gas utility companies, they all signed a letter to ALEC’s legislators and said, please make a model bill out of this, do it at this meeting, do it in the next few days. And they listed a bunch of reasons justifying why a law was needed. One of the examples used was the valve turners, a nonviolent protest that occurred in order to stop the development of the Keystone XL pipeline and and the the valve turners example was the only example that was used by these lobbyists to justify these laws that didn’t have to do actually with oil industry, ex employees or people suffering from serious incidents of mental illness, committing acts of sabotage against U.S. infrastructure. So much like we’re seeing with the Capitol riots, where George Floyd gets murdered by police, a bunch of time goes by. Republicans theorize about ways to punish the people who are reacting in outrage to the murder of black and brown people in this country by police officers. Then the Capitol riots happen. A bunch of white supremacists stormed the Capitol and now we’re going to be passing riot laws to go after Black people, essentially for the sins committed by white nationalists.

This trend in the oil and gas industry struck me as starkly similar there, justifying going after environmental protesters who are largely nonviolent, committing acts of civil disobedience in order to stop the fossil fuel buildout and blaming them with behavior that actually was had nothing to do with environmental activism. Some of the tribal groups in Montana who protested the bill that is currently making its way through that legislature a terrible, terrible bill, maximum sentence of 30 years in prison, max, fines of one point five million dollars. If you linked to somebody who was arrested under those offenses, it’s an individual protester in Montana would be subject to a max fine of one hundred and fifty thousand dollars, which is atrocious. That is way bigger than most of these states. The penalties in these states, which are draconian enough, tends to cap around like twenty or twenty five thousand dollars. Montana has upping it to one hundred and fifty thousand, but times ten if you are found to be a supporter of a protester arrested. And of course, Keystone XL cuts through at least one of the reservations in Montana. And I believe that’s the Flathead Tribal Reservation, the LAS. The bill was protested in committee by a lot of different indigenous peoples from different tribal nations and different native organizations, non-profits in Montana, and they were all concerned not only about the ongoing fight over Keystone XL, but just once the laws on the books, who knows what it will be used to punish people for in regard to any future infrastructure project that qualified for critical infrastructure.

Amy Westervelt: And it’s quite broad, right? The definition of critical infrastructure.

Connor Gibson: Yes. And I would have to look at Montana’s definitions again, because all of the states are a little bit different. But roughly following the trend that was set forth by the state of Oklahoma and by the American Legislative Exchange Council is model bill. It includes utility infrastructure, electric transmission lines. It includes pipelines of all kinds. That includes water infrastructure. Some of them include dams. The Louisiana levees was attempted to be added to the definitions last year, which failed gas compressor stations, refineries, export terminals. Pretty much everything you can think of that is dirty energy infrastructure qualifies as critical under this bill. Right.

Amy Westervelt: Right. I do wonder how much some of these laws could be used to tamp down on various other types of protests like the Black Lives Matter protests, some new research done, and I’m not sure if it’s out there yet or not around some groups that have been looking at what Gibson Dunn has done in response, both to indigenous tribes in Ecuador suing Chevron and to the standing rock protests against their client energy transfer partners and using RICO. I definitely hear echoes of in these in these anti protest laws, especially the recent ones where they’re going after the quote unquote organizers there.

Connor Gibson: It…the plot thickens, Amy, because in the bill that’s currently being considered in Kansas and it has already passed the Senate in Kansas, it actually has a hearing in the House tomorrow, which is March 17th. That bill includes a RICO provision and what I believe is the first overlap between corporations using racketeering, anti mafia laws to go after their critics or attorneys representing plaintiffs that inconvenience them or whatever it might be, an anti protest, the fossil fuel anti protest laws specifically, I believe RICO is also starting to creep into the broader trend of riot redefinition and protesting laws where you find the lowest common the common denominator way to accuse somebody of rioting and then you get to charge them with very, very serious felonies. And if some of these states succeed, potentially racketeering implication, as well as if civil disobedience is organized crime.

Amy Westervelt: In very simple terms, that is the attempt that’s underway: it’s to redefine civil disobedience as organized crime. And people should know that the RICO laws were created to to deal with the mob.

Connor Gibson: Yeah, I’m sorry. Just like the more extreme. And I don’t even want to use that word because there’s no explosions or violence or threats involved. But like an activist cutting a fence or throwing a carpet over the razor wire and trespassing or even shutting off a pipeline valve, I’m sorry. That’s not like walking into somebody’s store and breaking their kneecaps for not paying their dues that month or even nearly as threatening about that.

Amy Westervelt: Do you have a count of how many states have enacted these laws and then how many are sort of in play right now?

Connor Gibson: I do. OK, there are a total of 14 states that have so far passed the fossil fuel infrastructure, anti protest bills since twenty seventeen. The most recent one was in two thousand twenty one. But the the fight actually started years previous, and that’s Ohio. They just passed a law in January. That bill carried over from the previous year. After that, we’ve seen bills pop up in Minnesota for a grand total of six bills. I don’t know, they’re just really disorganized or what. Some of them are concurrent. So it’s really it’s basically four legislative packages in Minnesota in the form of six bills.

Amy Westervelt: That’s really interesting to me in the context of the Line 3 protests right now. Is there any sense that like the number of proposals or the movement on them recently is connected to some sort of reaction to that protest?

Connor Gibson: That’s a great question. I’m going to say my gut tells me yes, because in 2018 there was only one bill. In 2019 there were two bills. And I believe they were they might have been concurrent. And then 2020 there were also two bills. And then suddenly this year are six. There’s also there’s a little bit of difference between some of them. Some of the bills are more focused on the felonies for the individuals, including the loophole that you’re trespassing on a fossil fuel infrastructure facility with the intent to impede or inhibit or and another bill with the intent to disrupt the operation. I’m going to go ahead and say a aggressive prosecutor would slap me with a felony charge if I was sitting in front of a road because that would impede or inhibit the operation of the facility or disrupt the operation. So that’s like that’s where the loophole is. You’re right. They frame this as if it’s about property damage, as if it’s about violence. Guess what? All of that’s already illegal everywhere it has been. Right. All of this nation’s recent history and all of the state’s recent history. You can’t hurt people. You can’t blow stuff up. You can’t damage property, you can’t trespass. There are laws on the books to deal with those things. So what these bills really aimed to change, then the mills to the Minnesota bills illustrated well is that there is a loophole put in there that if you’re disrupting or interrupting the facility in some minor way, you’re on the hook for the same level felony offense that is normally reserved for somebody who is abusing or hurting another human being.

Amy Westervelt: Yeah, I think that’s a that’s a good way to put it. And an important thing for people to understand that it’s not like in the absence of these bills, there has just been a blanket permissiveness for trespassing and property rights.

Activists protesting you know, the people at Standing Rock in addition to getting blasted by the cops, water cannons and freezing cold temperatures and attacked by dogs and having their arms blown off by concussion grenades and stuff like that, like the people who are arrested, like trespassing in those situations. They do without having to get charged with things. And they do end up having to fight that out in court. And I know that for skeptics of like kind of protest culture and this like perhaps what’s seen as a really self-righteous liberalism to stand up for what’s right, that really irks some people. But I don’t think they think about how the people who engage in acts of civil disobedience really have a lot of shit to deal with after that happens. Or I’ll use myself as an example. Right. Like people are annoyed that somebody like me, this college educated white kid like goes and protest the Keystone XL pipeline in 2011 at the White House, which I did, there was a mass civil disobedience. We all got arrested. We went to jail. We didn’t have to go to a cell. We just had to pay our hundred dollars and forfeit and we got to leave, you know, but in many of these situations, that is not what happens. You go to jail, you get held, you get out, you have to talk with lawyers. You have to show up for court hearings. Several months to several years of your life is potentially disrupted. Even if you don’t end up going to prison or paying thousands of dollars in fines, you would lose a lot of time and you lose a lot of money in order to take that principled stand. So it’s not just a bunch of spoiled kids that don’t have to deal with any consequence. And they’re really abusing, you know, major loopholes in our legal system. They are accepting those consequences. Right. Or the kind of higher calling and saying no more fossil fuel infrastructure is not OK. More oil spills are not OK, more disruption to the sovereignty of indigenous nations. Treaties we have violated over and over and over again is not OK.

Amy Westervelt: [00:27:22] OK, so you were saying there’s Minnesota, there’s four different legislative packages that are kind of in play in Minnesota.

Connor Gibson: Right. And they’re all aimed in differing ways that felonies for individual violators as well as going after people affiliated with them as well. So you don’t even necessarily have to commit the crimes. And this is so if you’re a Sierra Club or a Greenpeace or any other organization, maybe the American Civil Liberties Union and you’re you’ve been on email threads with these activists, it raises the question, are you liable for the crimes they commit? Like a fool I met could go do something like spray paint, a piece of equipment. And, you know, that just strikes me as exceptionally unfair that I can possibly held be held to account for that thing that I didn’t give permission to be affiliated with and I wouldn’t have recommended and yadda, yadda. So that’s a big problem with in Kansas. There is a similar bill, as I believe I said earlier, that is part. Out of one of the legislative chambers and it has a hearing tomorrow, there are some groups locally opposing it, Kansas Interfaith Action as testified against the bill, the Kansas Sierra Club has testified against the bill and showing up against them, of course, is the American fuel and petrochemical manufacturers, as well as the Wichita Regional Chamber. I’m going to go ahead and guess much means Koch Industries and Cessna. I don’t know who else in Wichita is a particularly large company. And I’m going to go ahead and guess that Cessna doesn’t care about this law. And the lobbyist did mention we’ve heard a lot from our members about this one. And I was like, yeah, I bet I can tell you which one.

Of the other bills, there’s one in Montana. That law is being supported again by trade associations that represent many of the usual suspects, TransCanada, Enbridge, Exxon Mobil. It’s the but it’s being done through groups that are not quite so, obviously. So in Montana, one of the groups that is supporting the anti protest law is called the Treasure State Resource Association of Montana State Resource Association, it turns out, represents oil and gas companies, among among others. I saw the American Chemistry Council is in there. Enbridge and Exxon Mobil are members in Montana Petroleum Association, also supporting the bill in Montana. And I believe it’s pretty much the same oil companies that are the members of the Montana Petroleum Association as well. The other states that are considering bills, Alabama and Arkansas. In Alabama, that bill has not yet moved. Arkansas’s bill has passed in the House and it’s working its way through the Senate. I could not tell you in either of those states who is advocating for it. If those states disclose that information, I haven’t been able to find it. They certainly don’t disclose it. And lobbying registrations, although I can’t say that Coke is registered to lobby in both of those states. I noticed. And then the the kind of outlier, the state that I’m afraid will take a little too much interest for some of the wrong reasons is Illinois because a Democrat is sponsoring the bill in Illinois, and that has been the situation in Illinois since the beginning. So in Illinois as well as Wisconsin, there has been a. A different strategy than has been used in most other states, and that is the oil industry appeals to local trade unions, to the messaging in their hands. This is exactly what happened in Wisconsin. I’m not sure about Illinois. The American Petroleum Institute put messaging and talking points into the hands of the local trade unions who then lobbied Democrats in the legislature and championed the law that passed in Wisconsin and Illinois. I suspect the trend is similar because just in the last 36 hours, in addition to Enbridge and the American Petroleum Institute and some Illinois based lobbying organizations, there are a lot of trade unions that have just signed on in support of the bill in Illinois. They’re supposed to be hearing today. And I heard that this bill was taken out of the calendar for discussion. I don’t I don’t know why I don’t have more details, but, yeah, it means I have no idea what direction the bill is heading towards. I don’t know if that indicates some sort of conflict or stall or if it’s just a there was some procedural reason why they delayed. But I would keep my eyes out for Illinois. They tried to pass a law in twenty nineteen. It went through one of the legislative chambers, but not the other. And and I’m sure they’re going to try and fight like hell again this year to get a law on the books, because this is a third year in the row that they’ve they’ve tried pushing bills in Illinois.

Amy Westervelt: Hmm. That’s interesting.

Okay thank you so much for spending spending this time with me.

Connor Gibson: Yeah, great. Thanks so much for taking the time chat.