Trump Administration's Proposed Prosecution of Pipeline Opponents: Weighing Human Rights Obligations and Congressional Support

Foley Hoag LLP - Corporate Social Responsibility
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Foley Hoag LLP - Corporate Social Responsibility

[co-author: Helen Clapp]

The Trump Administration is using the reauthorization of a pipeline safety statute as an opening to insert new provisions that would give U.S. authorities broader latitude to thwart and criminalize the activities of protestors opposing hydrocarbon pipeline projects. The provision would apply to both existing pipelines and those that are under construction, with at least the partial intent of targeting large-scale protests that have encircled construction of oil transport infrastructure projects like the Dakota Access Pipeline and the Keystone XL Pipeline.

In June 2019, U.S. Transportation Secretary Elaine Chao introduced the prospective provision as part of the Trump Administration’s proposal to reauthorize pipeline safety programs. If the reauthorization is passed, the Pipeline and Hazardous Materials Safety Administration (PHMSA) – the Transportation Department’s agency for overseeing pipeline safety – would have direct authority to implement the measure’s provisions. The pipeline safety program is currently authorized through the end of fiscal year 2019. The Protecting our Infrastructure of Pipelines and Enhancing Safety Act of 2019 would reauthorize the program through fiscal year 2023.

Apart from being a standard reauthorization measure, PHMSA’s proposed language qualifying criminal penalties has piqued the interest and consternation of environmental activists. Criticism over this language turns on the expansion of Section 18 of the Act, which would more specifically define the activities related to pipeline construction that constitute a criminal felony. The proposed changes would strike the “damaging and destroying” of pipeline infrastructure as the standard for felonious activity and make “damaging, destroying, vandalizing, tampering with, impeding the operation of, disrupting the operation of, or inhibiting the operation of” an interstate oil or gas pipeline, or conspiring to do so, a felony. Such criminal activity would be subject to a punishment of up to 20 years in prison. Environmental activists and civil liberty groups interpret these proposed changes as an attempt by the Trump Administration and hydrocarbon interest groups to quash protest movements that are in opposition to large-scale pipeline construction.

Since President Trump took office, at least 17 states have introduced bills that would criminalize participation in pipeline protests. The American Legislative Exchange Council, a conservative group composed of state lawmakers and corporate representatives, created a model bill based on legislation enacted in Oklahoma in 2017 that prescribes criminal penalties for trespassing on critical infrastructure facilities. PHMSA’s proposed reauthorization draws on language from the model bill.

In August 2018, legislation took effect in Louisiana that makes it a felony to be anywhere on the 125,000 miles of pipelines in the state, punishable by up to five years in prison. The Louisiana Mid-Continent Oil and Gas Association drafted the legislation to expand the definition of critical infrastructure to include pipelines. A lawsuit filed in May by landowners, community members, and environmental advocates argues that the law is “unconstitutionally vague” because it is impossible to know when and where one is trespassing; many pipelines are installed underground and therefore difficult to locate, while some run through private property. Since the law took effect, more than a dozen protesters have been arrested, including those who secured permission from landowners to occupy their property.

In May, Texas Governor Greg Abbott signed legislation that makes it a felony to trespass on or interrupt operations at a critical infrastructure site, punishable by up to two years in state jail and a $10,000 fine. Anyone found damaging critical infrastructure could be charged with a third degree felony punishable by up to 10 years in jail. Protesters who oppose the 650-mile Jupiter oil pipeline and Kinder Morgan’s 430-mile Permian Highway gas pipeline contend that the law is part of a concerted strategy by large oil companies to intimidate and ultimately silence activists. Environmental groups have warned that they may challenge the law, as has been the case in Louisiana.

It is arguable that anti-pipeline protest laws violate First Amendment rights, as well as Article 20 of the Universal Declaration of Human Rights, which both defend the right to freedom of peaceful assembly and association. As the lawsuit filed in Louisiana argues, the actual aim of the law “is to chill, and harshly punish, speech and expression in opposition to pipeline projects.”

Defenders of the laws, like the Texas Oil and Gas Association, argue that they are intended to protect business and government employees and first responders, as well as the pipelines themselves. PHMSA further posits that the proposed federal legislation is not intended to inhibit First Amendment rights, and cites safety concerns with protesters turning valves and otherwise tampering with the pipelines. However, the arrests of peaceful protesters indicate that some legislative intent may be directed towards activists writ large. Moreover, the oil and gas industry played an instrumental role in crafting key provisions that eventually became part of the PHMSA proposal.

These new legislative efforts could also place energy companies in a precarious position. The U.N. Guiding Principles on Business and Human Rights mandate that businesses respect human rights regardless of “States’ abilities and/or willingness to fulfill their own human rights obligations.” Guiding Principle 11 notes that corporate responsibility to respect human rights “exists over and above compliance with national laws and regulations protecting human rights.” Additionally, Guiding Principle 13 states that businesses must “seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.” Taken together, these standards suggest that companies should not support changes to law that would violate the right of community members to oppose pipeline projects that have potentially deleterious impacts on them, or unduly subject such individuals to criminal penalties for doing so.

Apart from this, in accordance with international human rights law, pipeline developers have a duty to respect communities by not trespassing on their property in furtherance of a construction project. This also applies to indigenous groups, who historically have been especially embroiled in disputes over land tenure and use.

With Congress moving closer to the deadline for reauthorizing the current pipeline safety law, we expect to see a flurry of activity from the committees of jurisdiction (the House Committee on Energy & Commerce and the Senate Committee on Commerce, Science, and Transportation) to reconcile differences between the PHMSA proposal and competing measures from lawmakers.

As part of this process, it is highly unlikely that the proposed changes to Section 18 will survive in the final reauthorization package that is passed by Congress. While there is a small possibility that some Democrats in hydrocarbon-intensive electorates could support the provision as written or a modified version that is less punitive, members of the party’s progressive caucus will provide no such support. Accordingly, Democrats would fall short of the required votes to clear the measure in the House. Meanwhile, even many Republicans have so far not provided an unqualified endorsement of the Section 18 amendments. In the short term, efforts to criminalize pipeline opposition will therefore remain of greatest consequence at the state level.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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