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Balancing Act: Protecting Critical Infrastructure and Peoples’ Right to Protest

By Dan Shea | July 21, 2020 | State Legislatures Magazine

Over the past several years, more than a dozen states have sought to strengthen critical infrastructure protections by creating or enhancing criminal penalties associated with trespass and related offenses. After all, these facilities, often including energy and telecommunications infrastructure, are vital aspects of modern life, fundamental to maintaining public health and powering the economy.

While these laws primarily cover operating facilities, some explicitly include related construction projects, leading several groups to claim they could be used to limit public demonstrations in opposition to infrastructure projects. As the debate over climate change has heated up, so have protests targeting specific projects, including oil and gas pipelines and electric transmission lines, sometimes causing significant delays to work.

Perhaps the most widely known example came in 2016, when a protest led by members of the Standing Rock Indian Reservation in North Dakota blocked the path of a proposed pipeline for the better part of a year over concerns that the project would adversely affect their drinking water. Eventually, authorities forcibly removed the protesters, who had camped out in the project’s right-of-way, and the pipeline was completed the following year.

State Action

Since 2018, at least 13 states—Indiana, Iowa, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Virginia and West Virginia—have passed laws that either criminalize unlawful entry to critical infrastructure facilities or enhance the penalties associated with those offenses. Another nine states considered similar measures during that time.

The U.S. Department of Homeland Security defines critical infrastructure as the assets and networks that make up systems considered so vital that their incapacitation or destruction would have a debilitating effect on national security, economic security or public health and safety. Energy systems, including pipelines and electric transmission lines, fall under that definition, as do communications, health care and food production. The energy, water, communication and transportation sectors are further distinguished as lifeline sectors, considered so critical that their disruption would harm critical infrastructure across a variety of sectors.

 Since 2018, at least 13 states have passed laws that either criminalize unlawful entry to critical infrastructure facilities or enhance the penalties associated with those offenses. Another nine states considered similar measures during that time.

Most of the new state laws, however, tend to define critical infrastructure more narrowly, with a particular emphasis on energy, telecommunications and industrial facilities, such as refineries, electric power facilities, natural gas and oil facilities, railroad switchyards and trucking terminals. Advocates of the laws note the dangers of disrupting services from operating facilities that provide power and fuel. Some of the laws also include the construction of related facilities, like pipelines and transmission lines.

South Dakota passed SB 151 in March and included many of these facilities under its definition of critical infrastructure, although it also included construction areas and other temporary sites related to those facilities. The new law establishes a misdemeanor for trespassing on critical infrastructure facilities and a felony if the trespass results in a substantial interruption to infrastructure operations or other public services.

Also in March, West Virginia enacted HB 4615, creating the Critical Infrastructure Protection Act. The law creates new criminal offenses for trespassing on properties containing critical infrastructure with the intent to interrupt lawful operations or to damage a critical infrastructure facility. The law establishes a misdemeanor charge for trespassing, but creates felony charges if the intent is to vandalize, tamper with or damage equipment, with higher penalties if damage in excess of $2,500 occurs. Penalties range from $100 and 30 days in jail to $20,000 and up to five years in prison, depending on the crime. The highest penalties are reserved for people who conspire with others to commit the offense of trespass against or damage to critical infrastructure.

Penalties and Concerns

In a review of these laws, the International Center for Not-for-Profit Law has cited these high monetary penalties and significant prison terms as having the potential to limit civil demonstrations. Of particular concern to the group is that several of the laws penalize not only protestors but also their associates or conspirators, which could leave demonstration organizers liable to substantial penalties. This has led several groups to claim the laws have created a chilling effect on their ability to organize civil demonstrations against new and proposed projects.

It appears that several state legislators were at least aware of those concerns as they enacted these measures. The Missouri law states that it doesn’t apply to conduct protected under the U.S. Constitution, while North Dakota lawmakers included a section that says the statute may not be used to “prevent or prohibit lawful assembly and peaceful and orderly petition for the redress of grievances.”

Similarly, Louisiana’s governor vetoed an amendment to the state’s existing statute that would have added a 15-year sentence if the action takes place during a state or national emergency because of concerns over the long sentence, noting that Louisiana was currently under 11 different states of emergency—from natural disasters to the pandemic. “Since Louisiana is in a constant state of emergency, there would likely never be a time when the lesser penalty is in effect,” the governor wrote.

The balance is certainly nuanced, as states seek to protect infrastructure deemed critical to the public good while also allowing the public to protest that same infrastructure. Regardless, with six states enacting legislation in 2020 and another nine having considered similar measures in recent years, the issue appears far from settled.

Dan Shea is a senior policy specialist in NCSL’s Energy Program.

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