“A Game of Safety Theater”

Advocates say the move is meant to cut off any remaining avenues for dissent. In recent years, fossil fuel companies have pushed for bills to criminalize pipeline protests at the state level; worked with police, private security firms, and the FBI to surveil and crack down on activists; and even filed multimillion-dollar lawsuits against protesters accusing them of defamation and conspiracy.

Mark Hefflinger, communications and digital director at Bold Nebraska, an advocacy group that works with Tribal Nations, farmers, and ranchers to protect land and water rights, said the industry’s response to public outcry about the real safety concerns caused by fossil fuel infrastructure has been to play “a game of safety theater.” That means using “fear tactics” to paint protesters as dangerous criminals, making it easier for them to rush their projects through construction without community consent.

“I think these companies are looking to stack the deck as much as they can,” he said. “Having seen these projects firsthand, it’s very distressing and alarming.”

It’s not the first time the fossil fuel industry has tried to pass antiprotest policies through Pipeline Hazardous Materials and Safety Administration reauthorization bills. In 2019, the Association of Oil Pipelines — a lobbying group now known as the Liquid Energy Pipeline Association — provided similar proposed language to legislators that was reportedly considered by members of the House Transportation and Infrastructure Committee.

Those provisions didn’t pass, but the effort has reemerged. Since 2020, oil, gas, and utility trade associations and companies, including the American Gas Association, Black Hills, CMS Energy, and Puget Sound Energy, have disclosed lobbying on both “Attacks and Physical Threats to Pipeline Infrastructure” and the Pipeline Hazardous Materials and Safety Administration reauthorization bills.

In a March 2023 hearing of the Transportation and Infrastructure Committee, the CEO of the Liquid Energy Pipeline Association, Andrew Black, testified that “Congress should close [the] loophole in criminal penalties for pipeline attacks that are dangerous but do not result in damage.” The group gave $2,500 to the committee’s chairman, Republican Missouri representative Sam Graves, this year. Graves’s office did not respond to a request for comment.

That committee’s draft bill, approved in December, would add a prison sentence of up to ten years for “causing a defect in or disrupting operation of pipeline infrastructure” by manipulating valves or otherwise physically damaging the pipeline. The bill would also add “carbon dioxide facilit[ies]” to infrastructure whose damage or destruction could result in a twenty-year prison sentence.

“Current federal pipeline safety law does not penalize violent attacks on pipeline construction sites or dangerous but not damaging tampering with operating pipeline equipment, such as valve turning,” said John Stoody, vice president of government and public relations at the Liquid Energy Pipeline Association, in an email. “[The Liquid Energy Pipeline Association] supports 1^st amendment rights to protest, but opposes dangerous or violent activities that can harm protesters and the surrounding public.”

The House is now working to reconcile reauthorization bills from the two committees before passing draft legislation to the Senate.

“It’s a little frustrating to see the industry focus on this particular issue as a cause of failures when nearly all failures on pipelines are preventable failures under the operators’ control,” said Bill Caram, executive director of advocacy group Pipeline Safety Trust. While he emphasized that his organization does not support any activity that could compromise the integrity of a pipeline and endanger communities, including valve turning, Caram noted that “damaging equipment is already illegal, so I’m not sure what the need is.”

A Larger Strategy to Silence Critics

The industry has backed a legislative push to punish and silence its critics since major resistance to the Keystone XL pipeline from 2011 through 2014 and to the Dakota Access pipeline in 2016 and 2017 united communities across political and cultural divides and spurred an indigenous-led movement of water protectors.

“They moved to pass these bills to basically prevent it from happening again,” Donaghy said.

Since 2017, oil and gas companies including ExxonMobil, Marathon Petroleum Corporation, Koch Industries, and Enbridge have spent millions of dollars on lobbying and campaign donations to state legislators to push laws criminalizing protest of fossil fuel infrastructure. Those laws now apply to about 60 percent of all US oil and gas operations, report from Greenpeace found. Much of the legislation, primarily based on a model bill crafted by the oil- and gas-funded American Legislative Exchange Council, made it a felony to trespass on the industry’s so-called critical infrastructure.

Anne White Hat found herself facing up to ten years in prison after she was arrested for two counts of felony trespassing in September 2018 under one such law, which had just taken effect in Louisiana following pressure from oil and gas lobbyists.

She was one of four Native women who founded a resistance camp called L’eau Est La Vie, which was organizing nonviolent direct actions in protest of the Bayou Bridge Pipeline — a now-operating 163-mile pipeline owned by Energy Transfer that transports crude oil throughout the state. The protests ranged from a rendition of “Crawfish the Musical” on the construction site to protesters locking themselves to pipeline equipment to tree sits in the centuries-old cypresses the company planned to tear down.

The Bayou Bridge pipeline is the tail end of the Dakota Access route — White Hat had already joined her relatives to participate in the resistance camp at Standing Rock in North Dakota. “I felt like it was a righteous cause, not to let them comfortably continue to threaten the waters of indigenous First Nations,” she said. “I was inspired from the work up north and just couldn’t let them continue down here unanswered and unchecked.”

White Hat had just finished leading a prayer ceremony when she was arrested at a boat ramp miles from the pipeline construction site. She was hauled into a sheriff deputy’s car with two other women and driven through tall sugarcane fields on the way to jail.

“It was terrifying,” said White Hat. “We’re way out in the middle of nowhere. I was like, ‘Is this the point where I actually disappear?’”

Investigative journalist Karen Savage was arrested that day, too — her second arrest under felony trespass charges as she reported on the Bayou Bridge protests. She was one of the only reporters to travel to the Atchafalaya Basin swamp, where the pipeline was being constructed.

By the time the water protectors got to the swamp, Savage said, they “had done everything — they went to public meetings, they had petitions, they wrote letters, they tried to meet with the governor — they did everything they tell you in school, to participate and use your civil obligation in your community.” Despite their best efforts in one of the most oil- and gas-friendly states in the country, said Savage, “nobody was listening.”

As Savage’s reporting revealed, the off-duty Louisiana law enforcement who began violently arresting protesters after the new law was enforced were working side jobs for the pipeline company.

“I would’ve similarly documented whatever the sheriff’s deputies and Energy Transfer had planned that day — had I not been handcuffed in the back of a deputy’s squad car,” Savage wrote about her arrest.

While Energy Transfer paid local officials to arrest protesters, it was quietly breaking the law itself. Energy Transfer was later found guilty of trespassing on private property by working on land it didn’t have permission to build on, but it was allowed to continue construction with only a $450 fine. The sixteen water protectors who were arrested and charged with felonies under the state’s new law had permission from some landowners to protest — and were even asked to help them defend their land.

In 2021, a local district attorney dropped the water protectors’ charges, along with Savage’s.

Like the proposed measures oil companies are now pushing at the federal level, Louisiana’s state law was “so vaguely written that [officials] have no idea when they should arrest somebody or when someone is trespassing,” Savage said. “With everything so loosely open to individual interpretation, it just really really opens people up to abuses of their First Amendment rights.”

In 2019, Savage, White Hat, other water protectors, and two advocacy groups filed a lawsuit against the sheriff, district attorney, and state attorney general, arguing Louisiana’s critical infrastructure law violates their First Amendment rights. That lawsuit was dismissed by a US district judge in March; litigants who were directly affected by the law, including Savage and White Hat, have appealed the district court’s decision.

White Hat said she never intended to get arrested, and essentially stopped protesting after it happened.

“I have children to take care of,” she said. “I couldn’t risk it.”

“The Writing on the Wall”

According to the International Center for Not-For-Profit Law, more than three hundred antiprotest bills have been introduced in forty-five states since 2017, and twenty-one states have passed such bills into law.

Since then, pipeline protests have seen massive waves of arrests; during the construction of Enbridge’s Line 3 pipeline between December 2020 and September 2021, more than a thousand people in Minnesota were arrested for protest. Some were charged with felonies — like a fifty-four-year-old protester who blockaded an Enbridge pump station and was convicted with felony obstruction in 2023. Like Energy Transfer, Enbridge paid Minnesota police millions of dollars to respond to the protests.

The resistance to pipeline infrastructure continues nonetheless. Just last week, indigenous campaigners led a rally outside the White House calling on the president and Army Corps of Engineers to shut down the Dakota Access pipeline, which carries six hundred thousand barrels of oil per day and still lacks a permit to cross land beneath Lake Oahe, where the Standing Rock Sioux Tribe gets its drinking water.

Protesters are also still fighting construction of the Mountain Valley Pipeline, which is being built from northwest West Virginia to southern Virginia and was greenlit through the passage of President Joe Biden’s Inflation Reduction Act. But one of the states it runs through, West Virginia — home base of coal baron senator Joe Manchin, who has long championed the pipeline — is considering a bill that would classify trespassing on fossil fuel infrastructure as an act of terrorism.

“Over the last several years, a historic level of protest and demonstration has taken place across the country, including protests against pipeline construction,” said Vera Eidelman, staff attorney with the American Civil Liberties Union’s Speech, Privacy, and Technology Project, in an email. “Rather than add tools to the government’s tool kit for silencing dissent” that would “only make it harder, costlier, and more dangerous to protest,” she wrote, “legislators should be making an effort to listen to protester’s voices, even if, and perhaps especially when, they disagree with them.”

Now, as the oil and gas industry plans a new influx of carbon dioxide pipelines for carbon capture and storage, a controversial experiment that would allow it to continue burning fossil fuels under the guise of climate solutions, advocates could be silenced when the stakes are at their highest.

“We are scraping together pennies to be able to hold a public meeting, get people to the legislature, or get people into the offices of our elected Congress people,” said Jane Patton, a Louisiana-based campaign manager at nonprofit advocacy group the Center for International Environmental Law who is fighting carbon capture plans in the state. “Yet these industries that have a ton of money are able to get this access and have their questions answered and their request fulfilled.”

Hefflinger, of Bold Nebraska, said the industry is “doing their best to try and make the standards as low as possible for operation and safety — and because of regulatory capture, it becomes a foregone conclusion.”

“You start to lose opportunities to make your voice heard in the ‘proper’ channels,” he said.

In April, the Supreme Court effectively abolished the right to organize a mass protest in Louisiana, Texas, and Mississippi — three states facing a massive influx of new oil and gas infrastructure, including carbon dioxide pipelines. More than nine hundred miles of Exxon’s newly acquired network of Denbury carbon dioxide pipelines runs through those three states.

Still, the industry will have a steep road to climb as the projects face major resistance in states nationwide — even before construction begins. In October, Texas-based Navigator CO2 Ventures canceled its plans for a 1,300-mile carbon dioxide pipeline that would have run across five midwestern states after coordinated opposition from landowners and environmentalists. The cancelation, said Hefflinger, was a “gigantic wake-up call” for the industry.

Now, said Hefflinger, the industry is doubling down to silence dissent because “they’re seeing the writing on the wall.”