Last August, Water Protectors navigated their small boats through the winding bayous of Louisiana’s iconic Atchafalaya Basin to a small plot of land nestled in the swamp forest. They had received written permission from co-owners of the property to set up camp there in order protest pipeline construction, but construction crews had beaten them to it. By the time the activists arrived, ancient cypress trees had been turned into mulch to make way for the embattled Bayou Bridge Pipeline.
Over the next few weeks, about a dozen Water Protectors and one journalist were arrested by local sheriff’s deputies and state correctional officers moonlighting as private security guards during protests against pipeline construction on the private plot of land, according to a complaint filed in federal court this week. The activists were charged with felonies under a controversial state anti-trespassing law that had just gone into effect, and was, according to environmental groups, written to target anti-pipeline campaigns. Each charge carries a maximum penalty of up to five years in prison.
However, co-owners of the land said that the protesters had permission to be there last summer, and it was the pipeline and the companies behind it that were guilty of trespassing. A state court agreed with the landowners in December 2018 and ruled that the pipeline companies indeed trespassed by starting construction without first receiving permission or legally “expropriating” the property under state eminent domain laws. By then, the arrests had already been made.
This week, environmental and civil liberties groups filed a lawsuit on behalf of a long list of landowners and activists that asks a federal court in Baton Rouge to declare Louisiana’s “anti-protest” pipeline trespassing law unconstitutional. The law expanded the definition of “critical infrastructure” in the state to include the oil-and-gas rich state’s vast 125,000-mile network of pipelines, making trespassing on or near them a felony rather than a misdemeanor.
The law is one of several “anti-protest” bills recently introduced or enacted in statehouses across the country. Environmental activists say flatly that oil and gas companies have teamed up with pro-industry politicians to put a chill on protests against new fossil fuel projects as infrastructure rapidly expands due to the Trump administration’s energy agenda and the fracking boom. The Louisiana law is likely the first to be tested in court after being used against anti-pipeline protesters, so this week’s lawsuit is bound to have implications for activists and landowners fighting pipelines nationwide.
“The goal of this unconstitutional law is to further corporate interests and silence Indigenous and non-Indigenous communities that take a stand for the rights of our Mother Earth that we human beings depend upon for our existence,” said Anne White Hat, a Water Protector who was arrested protesting the Bayou Bridge Pipeline last year and is a plaintiff in the case.
“Anti-Protest” Laws Are a National Trend
Efforts to increase criminal penalties for trespassing or interfering with pipeline infrastructure began popping up in state legislatures in the wake of the Indigenous-led uprising against the Dakota Access Pipeline at Standing Rock. Oklahoma was one of the first states to pass “anti-protest” laws in the wake of Standing Rock, including an anti-trespassing law that declares pipelines like Dakota Access and Keystone XL to be “critical infrastructure,” much like the law in Louisiana.
The Bayou Bridge Pipeline connects to the Dakota Access energy network, so environmental and climate activists took notice when a major firm behind the projects, Energy Transfer Partners, began applying for permits in Louisiana in the wake of the Standing Rock movement. An oil and gas industry group called the Louisiana Mid-Continent Oil and Gas Association quickly began moving a “critical infrastructure” bill through the Louisiana legislature, according to the lawsuit. The legal complaint says the law is part of a national pattern:
The Louisiana law emerged as part of a national trend of similar legislation pursued by oil and gas interests aimed at cracking down on and chilling protests against fossil fuel infrastructure projects, which are taking place as part of an important national debate about the worsening environment and climate crisis. It is therefore no accident that the law was invoked immediately after its passage by a private security company working in tandem with local law enforcement at the behest of a private oil pipeline company.
Roughly 35 states have considered a total of 99 anti-protest laws in recent years, according to the International Center for Not-for-Profit Law, which tracks protest laws across the U.S. Not all of these efforts target protests against pipelines – some criminalize wearing masks or disguises (“masking”) during a protest, for example – but several “critical infrastructure” laws enhancing penalties for trespassing on oil and gas infrastructure are among those that successfully passed in Tennessee, North Dakota, Oklahoma, Louisiana and other states where the oil and gas industry enjoys considerable political influence.
Illinois has not had any high-profile pipeline controversies recently, but the Democratically controlled legislature recently advanced a bill that classifies pipelines as “critical infrastructure” and makes trespassing on pipeline property a felony offense, raising concerns among civil rights groups and environmentalists alike that people of color who end up on the wrong side of a “No Entry” sign could face steep penalties in a state already struggling with serious racial disparities in sentencing.
“Any legislator who is concerned about climate change, who is concerned about free speech, who is concerned about criminal justice, now would be the time to stand up against this bill, which bad on all of these things,” said J.C. Kibbey, the Natural Resources Defense Council’s (NRDC) clean energy advocates in Illinois, in an interview.
In South Dakota, the American Civil Liberties Union (ACLU) is challenging three recently passed laws that Gov. Kristi Noem has said are meant to target protests against the Keystone XL Pipeline. At the center of the lawsuit is the so-called Riot Boosting Act, which allows the state to sue organizations and individuals who promote protesting at an event where violence or property damage occur, even if they were not present.
The Riot Boosting Act claims to target “outside agitators,” but critics argue that language is so vague that a protester who passionately chants could face fines and even jail time if a fight breaks out during a rally. Or, as the NRDC puts it, “liking” a faraway action on Facebook could be considered illegal by the state of South Dakota.
Free Speech and Private Property
Free speech is a top constitutional concern for those challenging the anti-protest bills, and much of the debate will likely center around direct action protests that involves blockades and civil disobedience. However, civil rights attorneys argue the bills are written so broadly that people who have no intention to break the law could be unconstitutionally silenced and criminalized. Louisiana, for example, has so many pipelines running throughout the state that residents may not be aware they are committing a felony under the “critical infrastructure” law, according to the complaint filed this week.
One plaintiff, Sharon Lavigne, is an environmental justice organizer living near the terminus of the Bayou Bridge Pipeline in Louisiana’s infamous “Cancer Alley,” where historic Black communities are overwhelmed by petrochemical pollution. Her property is subject to an oil and gas lease, and the lawsuit argues she could be charged with a felony for standing in parts of her own yard – let alone organizing neighborhood protests against the massive chemical plant planned down the road.
The Louisiana lawsuit also raises serious questions about pipelines and private property, since the Water Protectors arrested under the “critical infrastructure” law had permission to be on property where they were protesting, while pipeline construction crews did not. This stands in stark contrast to acts of civil disobedience on property owned by a fossil fuel firm.
As Truthout has reported, vague state laws around eminent domain allow private pipeline companies to seize private property, and landowners who cannot afford lawyers often give up without a fight. As the U.S. becomes the world’s top producer of oil and gas and the Trump administration pushes to rapidly expand infrastructure, do private landowners have the right to resist when a pipeline is plotted through their backyard? Does the construction of for-profit pipelines trump the concerns of residents and property owners because they carry a source of “energy,” even though greenhouse gas emissions from fossil fuels are a threat to life on Earth?
For these reasons, environmentalists, climate activists and civil rights groups will be watching the lawsuit in Louisiana closely. Several Water Protectors still face felony charges there, although it remains unclear whether prosecutors still intend to pursue those charges in light of litigation. Construction of the Bayou Bridge Pipeline may be complete, but the battle against the pipeline lives on in court, where it could set an important precedent for activists fighting fossil fuels far beyond Louisiana.