Claiming to bolster protection for “critical infrastructure,” a bill circulating in the Missouri Legislature could criminalize protests against things like pipeline projects and dozens of other industrial facilities that are either “under construction or operational.”
Anyone found trespassing on or around various industrial and infrastructure sites in Missouri with the intent to “impede or inhibit operations” would be guilty of a Class A misdemeanor under the proposal the Missouri Senate is considering. The legislation also says anyone who “willfully damages, destroys, vandalizes, defaces, or tampers with equipment” would be guilty of a Class C felony, which carries a maximum 10-year prison sentence and a $10,000 fine.
The measure — which some have dubbed the “pipeline protest bill” — has touched off a debate not only in Missouri, but also in other states where similar, if not identical, bills have popped up using model legislation from a national organization, the American Legislative Exchange Council. The Post-Dispatch reported in 2011 that corporations such as Koch Industries Inc., Exxon Mobil Corp. and Ameren paid thousands of dollars per year for membership in the group to help craft model bills.
Supporters say the law would put reasonable restrictions on the time, manner and place of protests to ensure that “critical infrastructure” such as pipelines, railroads, refineries and telephone lines can continue operating.
“What this bill tries to do is strike a balance between the need to protect our critical infrastructure in the state while also maintaining” First Amendment rights, Sen. Lincoln Hough, R-Springfield, the sponsor of the proposal, told a Senate utilities committee last month.
But opponents, including the Sierra Club, say the idea would have a “chilling effect” on protests by environmental activists or landowners whose property is crossed by the projects in question.
Besides targeting punishment for individuals, groups that organize protests also could face penalties. The legislation subjects organizations to fines if the group “is found to be a conspirator with persons who are found” trespassing or damaging private property.
“Under this law, an organization could conceivably be liable for a fine of up to $100,000 for involvement in planning a protest in which trespassing occurred — even though no trespassing (was) contemplated at the time of the plan,” Michael Diel, of the Missouri Chapter of the Sierra Club, said at the hearing.
“Whether or not charges are ever brought against an organization, the threat produces a chilling effect on the exercise of First Amendment rights to free speech and assembly,” he said.
The same concept has appeared in recent laws and legislation in other states and follows high-profile pipeline protests, including the 2016 demonstrations in North Dakota near the site of the Dakota Access Pipeline.
Some of those states are along the routes of prominent, controversial pipelines, such as the proposed Keystone XL project, which would carry particularly carbon-intensive crude oil from Canada’s tar sands south to a terminal in Nebraska, where the existing Keystone pipeline system forks south toward destinations in Oklahoma and near the Gulf of Mexico, or east to Wood River and Patoka, Ill., just beyond St. Louis.
The American Civil Liberties Union filed a federal lawsuit Thursday challenging a new law in South Dakota that targets potential protests against the Keystone XL pipeline. The law allows officials to pursue money from demonstrators who encourage violence, according to the Associated Press.
Critics of the proposed law in Missouri name a list of issues they find with the legislation. A top one, they say, is that it does not address any existing problem in the state, where laws already effectively deter trespassing or vandalism.
“This is clearly not created because someone thought, ‘Wow, our ability to function as a state is in danger.’ It doesn’t even come from the state,” said Michael Berg, a grassroots organizer who has tracked the bill for the Sierra Club’s Missouri chapter. “(It’s) this huge definition without presenting evidence that it’s critical infrastructure or who it’s critical for.”
Instead, critics paint the move as an over-reaching attempt to pave the way for the expansion of fossil fuel infrastructure, at a time when the environmental and climate risks of those projects are becoming more apparent to broader swaths of society.
“I think it’s all related to Standing Rock,” said Ed Smith, policy director for the Missouri Coalition for the Environment. “I think this is a newer take on how to decrease protests to fossil fuel infrastructure and development.
“Fossil fuels are trying to guarantee their ability to survive at a time when our climate is changing,” Smith added. “It’s part of a package of efforts to protect fossil fuel interests at a time when we should be looking to transition.”
‘More than punitive’
Some legal analyses also have outlined concerns with the wave of “critical infrastructure” legislation. A September 2018 paper from the International Center for Non-Profit Law, for instance, called the measures “Guilt by Association” bills due to the vagueness over whom penalties might be applied to, and for what actions. It said even “chanting a slogan” or “downloading a map” of a protest location could potentially become grounds for conspiracy charges.
“These broad provisions create liability for protesters and protest organizers in a way that can frequently violate the First Amendment, criminalizes forms of peaceful protest, and may be unconstitutionally vague,” the report said, adding that this could expose state and local authorities to lawsuits.
“The penalties of many of these bills are more than punitive, they are silencing,” the report adds, mentioning an Oklahoma policy that “allows for fines of up to $1 million for organizations found to be a conspirator in critical infrastructure or trespass.”
Beyond the environmental and constitutional worries, Smith said the bill goes against “the larger conversation happening in Jefferson City” and in bipartisan political circles about decreasing sentences for nonviolent crime.
“I don’t see this as heading in the other direction,” said Hough, the bill’s sponsor, mentioning his past political support for alternative sentencing.
The bill currently awaits debate before the full Senate.
“I want to craft the best policy we can,” Hough said. “I’m not after anyone who’s exercising their First Amendment rights.”
He said the bill arose from an aim to protect public safety as much as critical infrastructure, since tampering with pipelines or substations can affect more than just “the person standing there doing the act.”
As for claims that the bill is redundant, there are “always opportunities to improve our criminal code,” said Hough. “There are also laws to keep people from speeding down the highway, but sometimes things need to be reinforced.”
The legislation is Senate Bill 293.