“Wo’okiye was’te qa wico zani o’wacin yuhapo”
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“That was really pretty
successful in thwarting a lot of our
efforts to continue any activism after
that,” McCray said.
Oka Lawa never drew the kind
of participation and attention that
made the Dakota Access Pipeline a
national cause, and the Diamond
Pipeline was completed quietly later
that year.
McCray has since channeled
her energy toward politics, running
for a seat on the Oklahoma
Corporation Commission, which
regulates the energy industry.
But even as a candidate, McCray
says, she now watches her words
and her Facebook posts, afraid of
being implicated as a conspirator
if someone were to violate the law,
even if she doesn’t know the person.
“I don’t feel safe, honestly,” she said.
Across the country, activists
like McCray are feeling increasingly
under assault as energy companies
and their allies in government have
tried to turn the law—and law
enforcement—against them.
In Louisiana, which enacted
a similar law in May, at least nine
activists have been arrested under
the new law since it went into effect
on Aug. 1. In one incident, three
people were pulled off a canoe
and kayak after they maneuvered
the boats on a bayou to protest
construction of an oil pipeline. The
arrests were conducted by off-duty
officers with the state Department of
Public Safety and Corrections who
were armed and in uniform, but at
the time were working for a private
security firm hired by the pipeline
developer.
Dozens of bills and executive
orders have been introduced in at
least 31 states since January 2017
that aim to restrict high-profile
protests that have ramped up as
environmentalists focus on blocking
fossil fuel projects.
In addition to Oklahoma’s
infrastructure bill and similar
legislation enacted in two other
states, these bills would expand
definitions of rioting and terrorism,
and even increase penalties for
blocking traffic. Twelve have
been enacted, according to the
International Center for Not-for-
Profit Law. The bills have all come
since the election of President
Donald Trump, who openly
suggested violence as a way to
handle protesters on the campaign
trail, and once in office called the
nation’s leading news organizations
“the enemy of the American people.”
At the same time, law
enforcement and private companies
have conducted surveillance on
campaigners, while some federal
and state officials have suggested
pipeline protesters who break
laws be charged as terrorists.
Corporations have hit landowners
and environmental groups with
restraining orders and hundred-
million-dollar lawsuits.
Some pipeline opponents
have conducted dangerous and
illegal stunts, cutting pipelines with
oxyacetylene torches or closing
valves. But most protests have been
peaceful. If they’ve broken laws by
trespassing, activists say, they’ve
done so as part of a tradition of civil
disobedience that stretches to the
nation’s colonial roots.
“All of the social progress we’ve
made has depended, over the entire
history of this nation, from the very
beginning, on that ability to speak
out against things that are wrong,
things that are legal but should not
be,” said Carroll Muffett, president
of the Center for International
Environmental Law. “This country,
for all its failing, has long respected
the importance of that. These bills
put that fundamental element of our
democracy in jeopardy.”
In an Age of Terrorism
The modern environmental
movement sprung out of mass
protest, when millions took to the
streets for the first Earth Day in
1970. In the decade that followed,
civil disobedience emerged as a core
tactic as greens joined with anti-war
protesters to launch anti-nuclear
campaigns.
Laws against protesters
Continued from Page 5
The movement returned to
those roots with its fight to stop
the Keystone XL oil pipeline.
Beginning in 2011, activists
staged sit-ins ending in arrests that
galvanized the movement and drew
national attention to what had been
the mundane work of building
pipelines.
Across the country, people
began physically obstructing fossil
fuel infrastructure. Protesters
blocked train tracks carrying coal
and oil in Washington state, halted
trucks at the gates of a gas storage
facility in upstate New York and
kayaked in front of an oil rig in
Seattle. This was before hundreds
were arrested at Standing Rock.
In the absence of a clear
federal energy plan, fossil fuel
projects effectively became the
policy, locking in oil, gas and
coal infrastructure—and their
greenhouse gas emissions —for
generations. They became the focus
of environmental groups, who
found common cause with tribes
and landowners fighting to protect
their land and water. The groups
launched campaigns that delayed
or blocked several major coal
export facilities, pipelines and other
projects, costing energy companies
millions or even billions of dollars.
To push back, the industry
turned to its supporters in
government.
Soon after Oklahoma’s critical
infrastructure bill passed last
year, the conservative American
Legislative Exchange Council
(ALEC) used it to write model
legislation for other states.
In at least six more states,
lawmakers introduced similar bills
that would impose steep penalties
for trespassing on, or tampering
with, pipeline property and other
infrastructure. Two were enacted
this year. Two others are pending.
In Wyoming, one bill was
openly proposed on behalf of energy
companies. In other states the ties
are barely hidden.
Louisiana state Rep. Major
Thibaut, a Democrat, introduced a
bill that followed ALEC’s model by
adding pipelines to a list of critical
infrastructure facilities. When he
presented it to a Senate committee
in April, he brought Tyler Gray,
a lobbyist for the Louisiana Mid-
Continent Oil and Gas Association.
During the hearing, Gray answered
most of the questions. At one
point, he leaned over to Thibaut
to recommend that he accept an
amendment. Neither Thibaut nor
Gray responded to requests for
comment.
Gov. John Bel Edwards
signed it into law in May, after an
amendment removed the threat of
conspiracy charges.
Iowa enacted a law that makes
“critical infrastructure sabotage” a
felony. Lawmakers in Wyoming and
Minnesota also approved critical
infrastructure bills this year, but
the governors there vetoed the
legislation. Similar bills are pending
in Ohio and Pennsylvania.
The bills may get their first test
soon in Louisiana after the arrests
of the three activitists on the bayou.
Activists had been conducting tree-
sits and other actions for weeks and
were careful to stay off the pipeline
easements once the new law took
effect, said Cherri Foytlin, an
activist organizer in the state. The
three who were taken from their
boats, for example, claim to have
been in navigable waters, which
are supposed to be public. The
definition of what’s navigable has
been the subject of much debate
and legal wrangling in the state,
however, and the off-duty officers
pulled the activists off their boats to
arrest them.
“It was really scary,” said Cindy
Spoon, one of the activists, in a
video posted to Facebook. “They
grabbed my wrist, grabbed my waist
and they started to pull one of my
arms behind my back and put me in
a stress position.”
The local district attorney has
not yet formally filed charges. If
the case proceeds, the activists will
challenge the law itself, said William
Quigley, a professor at Loyola
University College of Law in New
Orleans who is representing them
pro bono. They could face up to five
years in prison if convicted.
Two more incidents occurred
over the weekend involving activists
who had erected a stand high in the
trees to block construction. Quigley
said the group had permission from
property owners to be on the land.
But deputies with the St. Martin
Parish Sheriff’s Office arrested six
people, including a journalist. The
property is co-owned by hundreds
of parties, and some of them have
not signed easement agreements
with Energy Transfer Partners, the
primary owner of the pipeline.
The St. Martin Parish Sheriff’s
Office did not return requests for
comment on the weekend arrests.
“I think this shows how
ridiculous this law is if this is
the way it’s going to be applied,”
Quigley said.
The legislation is not without
precedent. Since 1990, nearly a
dozen states have passed bills known
as “ag-gag” laws that prohibit
surreptitiously recording inside
feedlots and breeding facilities.
Many came after exposés of horrific
conditions and animal abuse. Three
of those laws were subsequently
overturned by courts.
But environmentalists and free
speech advocates say the new bills
are part of a broader effort to recast
environmental activists as criminals,
even terrorists.
For example:
In May 2017, the American
Fuel and Petrochemical
Manufacturers published a
blog post about activists who
vandalized pipelines, under the
headline: “Pipelines Are Critical
Infrastructure—and Attacking
Them Is Terrorism.”
Last year, Energy Transfer
Partners filed a federal lawsuit
against Greenpeace and other
groups seeking hundreds of millions
of dollars. The complaint accuses
some of the nation’s leading
environmental organizations
of operating an “eco-terrorist”
conspiracy at Standing Rock. (A
judge dismissed the case against
one of the defendants last month,
but has yet to rule on a motion to
dismiss the case against Greenpeace.)
Another industry group
launched a database to track
“criminal acts on critical energy
infrastructure,” claiming eco-
terrorism incidents were on the rise.
In Congress, 84 members
wrote a letter to Attorney General
Jeff Sessions asking if protestors
who tamper with pipelines could be
prosecuted as domestic terrorists.
Sponsors of the state pipeline bills
have also invoked terrorism.
Supporters of the bills say they
do not suppress lawful protests.
“There’s a legal process to
stop something,” said Oklahoma
state Rep. Mark McBride, who
sponsored another bill that assigns
civil liability to anyone who pays
protesters to trespass. “But if you’re
chaining yourself to a bulldozer
or you’re standing in the way of a
piece of equipment digging a ditch
or whatever it might be, yes, you’re
causing harm to the project and to
the person that’s contracted to do
that job.”
Advocacy groups say the bills
are unnecessary—trespassing and
vandalism are already unlawful,
and protesters who have disrupted
operations have largely been charged
under existing statutes. They fear
the legislation uses a handful of
dangerous incidents as a pretext to
intimidate mainstream advocates
and target more widespread acts
of peaceful civil disobedience,
like temporarily blocking access
to a construction site. Several
environmental and civil liberties
organizations are now in talks about
how to respond to the industry’s
actions.
“The clear attempt there
is to bring environmental
justice, environmental advocacy
organizations into a realm of
criminal liability,” said Pamela
Spees, a senior staff attorney at
the Center for Constitutional
Rights, which represents activists in
Louisiana. “They’re basically trying
to silence and minimize the impact
of environmental organizations.”
Afraid to Speak Up at the Pipeline
Crossroads of the World
Ever since the state’s first
gusher began spurting crude in
1897, oil has dominated life in
Oklahoma. Today, it is home
to fracking pioneers, including
Continental Resources. The town of
Cushing, the self-dubbed “pipeline
crossroads of the world,” is a critical
oil trading hub. “Environmental
activist” is not a badge many wear
openly in Oklahoma.
Dakota Raynes spent the
past few years at Oklahoma State
University writing his dissertation
about how people have responded
to a fracking boom that’s literally
shaken the state. As drillers began
injecting more wastewater into wells
from 2010-2015, the number of
earthquakes jumped more than 20-
fold to 888.
Raynes interviewed dozens
of activists, lawmakers, regulators
and ordinary citizens. He found
that almost everyone is reluctant to
speak publicly against the industry.
They fear neighbors or colleagues
or parents of their children’s friends
will catch wind and shun them.
Raynes said he’s attended events
with activists who have returned to
their cars afterward to find screws
driven into tires.
“Many people read Oklahoma
as a hostile context in which
to engage in any kind of pro-
environmental work,” he said.
“And they all link that back to the
phenomenal amount of power that
the oil and gas industry has, both as
a cultural force, as a legal force, as a
political force.”
Standing Rock changed that
deference, said Mekasi Camp
Horinek, a member of the state’s
Ponca tribe.
Horinek grew up on tribal land
near an oil refinery and a factory
that produces carbon black, a sooty
petroleum product. He blames the
facilities for contributing to disease
and deaths in his community. When
the call came to join the resistance at
Standing Rock, he became a leading
organizer. (The Ponca’s ancestral
land in Nebraska lies in the path of
the Keystone XL pipeline, another
project he’s fought.)
“I think the state of Oklahoma
felt threatened and was worried that
people would rise up,” he said about
the critical infrastructure bill. “And
they should be.”
Horinek says he remains
undaunted, but he said the new law
had an immediate effect on others.
People were suddenly
threatened with long prison terms if
they crossed onto pipeline property.
“That definitely weighs heavy on a
person’s thoughts,” he said.
Oklahoma has 39 American
Indian tribes, most forced to move
there during the Trail of Tears in
the 19th Century, and indigenous
activists led the fight against the
Diamond Pipeline. “They can’t
risk a six-month sentence for
trespassing. Who’s going to take care
of their kids, their parents, their
grandparents?” he said.
Biggs, the state representative
who sponsored the bill, now
works for the federal Department
of Agriculture. He declined to
comment for this article. The
Oklahoma Oil and Gas Association
also declined to make anyone
available for an interview.
Activists say the bill was a clear
assault.
The Sierra Club has a
policy against engaging in civil
disobedience. But the bill’s
conspiracy element—which says a
group can be charged with 10 times
the fines given to a person who
violates the provisions—worries the
organization’s Oklahoma director,
Johnson Grimm-Bridgwater. He was
among those who spoke at the 2017
press conference. While Grimm-
Bridgwater says participating in a
press conference should qualify as
constitutionally protected speech,
there’s no telling how a prosecutor
might apply the new statute.
“The law is punitive and is
designed to create friction and
divisions among groups who
normally wouldn’t have a second
thought at working together,” he
said.
Brady Henderson, legal
director for the Oklahoma chapter
of the American Civil Liberties
Union, said there’s widespread
concern in both liberal and
libertarian circles about the law, and
he’s fielded questions from several
nonprofits about the conspiracy
clause.
The ACLU in Oklahoma is
considering legal challenges, but
may have to wait until a district
attorney tries to use the new law.
Still, Henderson said, the language
is so broad that it can apply to
almost anything.
“By equating those kinds of
things together, essentially political
speech on one end and on the other
end outright terrorism,” he said, “the
bill is a pretty gross instrument.”
Protesters Under Surveillance
As activists were fighting the
Diamond Pipeline in Oklahoma,
Energy Transfer Partners was
planning another oil pipeline at the
southern end of its network.
The Bayou Bridge pipeline is
slated to run from Texas to St. James
Parish, Louisiana, already home
to many petrochemical facilities.
Along the way, it crosses through
the Atchafalaya Basin, the nation’s
largest river swamp and a center of
the state’s crawfish industry.
Environmentalists were
alarmed by the risks the project
posed to residents of St. James
Parish and the swamp’s fragile
ecosystem. And they quickly felt
as if law enforcement agencies
were working against them. For
one thing, some officials openly
supported the project. Joseph
Lopinto, now Jefferson Parish
sheriff, spoke at a hearing last year
on behalf of the National Sheriffs’
Association and urged regulators to
approve the pipeline.
Anne Rolfes, an organizer of
the pipeline resistance and founder
of the advocacy group Louisiana
Bucket Brigade, said activists also
suspected they were being watched.
During the protests at Standing
Rock, a private security company
hired by Energy Transfer Partners
had compiled daily intelligence
briefings and coordinated with local
law enforcement, as detailed in
reports by The Intercept.
Rolfes’ group this year also
obtained a handful of documents
through a public records request
that indicate state officials were
tracking their efforts.
One state police report from
November said the agency sent
an investigator from its criminal
intelligence unit to a hearing where
activists had allegedly planned a
protest, and that a local sheriff’s
office planned to send a plainclothes
officer. Rolfes said no protest was
planned; activists merely intended to
speak at a public hearing.
In the following months,
an intelligence officer with the
Governor’s Office of Homeland
Security and Emergency
Preparedness sent two emails to
colleagues describing environmental
groups’ priorities, quoting Rolfes’
newsletter and an article about the
groups and adding a photograph of
her.
Louisiana State Police declined
to comment. Mike Steele, a
spokesman for the state Homeland
Security Department, rejected the
notion that his agency spies on
activists. He said this type of open-
source tracking was similar to what
they conduct ahead of football
games or festivals. “We do that with
any type of event, because safety is
the number one concern,” he said.
Energy Transfer Partners
spokeswoman Alexis Daniel issued
a statement saying, “any claims
that our company or our security
contractors have inappropriately
monitored protestors in false.” It’s
unclear what surveillance, if any,
the company or its contractors
have deployed in Louisiana. Energy
Transfer Partners has also been
accused of spying by a family in
Pennsylvania.
Rolfes said Louisiana officials
are treating activists like criminals.
“We’re going to be followed while
we participate in the democratic
process?” she said.
The arrests in August of the
three protesters on boats who were
detained by off-duty officers only
deepened the activists’ feelings that
the state and energy industry were
working against them. While the
arresting officers were working as
contractors, they wore their state
uniforms and badges and carried
weapons.
Spees, with the Center for
Constitutional Rights, said the
incident represented a problematic
melding of public and private
authorities. After the industry-
supported bill was enacted by the
state, she said, state employees acted
on behalf of an energy company to
detain activists under the new law.
“It’s as though they’ve
become the hired hands for private
oil companies and pipelines
companies,” she said.
Activists in Virginia, where
two gas pipelines are drawing
protests, have also been tracked
by that state’s Fusion Center—
which shares information across
agencies to combat terrorism and
crime—according to a report by the
Richmond Times-Dispatch.
In Washington state, a local
sheriff’s office has monitored
activists opposed to a major pipeline
project that connects with Canada’s
tar sands, sharing information
with that state’s Fusion Center,
documents obtained by The
Intercept show. Protest groups there
already tried to block tanker traffic
associated with the project, and local
authorities have conducted trainings
to prepare for mass protests.
The nation’s intelligence
community has a dark history
of tracking political movements,
including the FBI’s COINTELPRO,
which snooped on Martin Luther
King, Jr., and others. Earlier this
decade, FBI agents monitored
opponents of the Keystone
XL pipeline, according to The
Guardian, and the bureau had at
least one informant at Standing
Rock.
Even if local law enforcement
agencies today are doing little
more than collecting news
articles and other open source
information, covert surveillance
risks equating political protest
with criminal activity, said Keith
Mako Woodhouse, a historian
at Northwestern University
who wrote a book about radical
environmentalists.
“It gives a sense that law
enforcement is, if not on the side
of, at least more sympathetic to
the industries and practices that
are being protested,” he said.
“Presumably they’re not surveilling
the energy companies.”
Pipeline companies have
cultivated that relationship.
They have reimbursed state law
enforcement millions of dollars
for providing security for their
projects in North Dakota, Iowa
and Massachusetts, for example.
Most major pipeline companies
also run charitable campaigns that
have contributed millions of dollars
to local emergency responders and
other agencies and groups along
their routes. The National Sheriff’s
Association, in turn, supported the
Bayou Bridge and Dakota Access
pipelines while it called protesters
“terrorists.”
A Worrying Trend
Over the past decade, the sense
of urgency around climate change
has intensified. Scientists say there
is little time before the planet is
committed to potentially devastating
warming. The only practical way
to avoid that is to largely eliminate
fossil fuel use over the next several
decades.
The government’s response has
been minimal, “so the next step is
civil disobedience,” said Woodhouse,
the historian. “And if anything, it’s
surprising that it hasn’t happened
sooner and at a greater scale.”
Woodhouse said efforts to
suppress environmental protest
trace back to the rise of radical
environmental groups in the 1980s
and `90s, when public officials
slapped names like “eco-terrorism”
and “ecological terrorism” on
activists who vandalized equipment
or animal testing facilities.