Recent Legislative Responses to Dakota Access Pipeline and the Critical Infrastructure Protection Act

Newton’s third law of motion asserts that for every action, there is an equal and opposite reaction. This principle is applicable to the pipeline industry and its environmental adversaries.

We have witnessed a legislative response to environmental activists engaged in disobedience and protest to thwart development of infrastructure transporting natural gas and oil. This response began with two bills passed by the Oklahoma legislature in 2017. Designated House Bills 1123 and 2128, these impose civil and criminal penalties against actors opposing pipeline development.

The American Legislative Exchange Council embraced these bills drafted in Oklahoma legislature and developed a model Critical Infrastructure Protection Act. This provides for civil and criminal remedies against those convicted of trespass or unlawful entry upon property containing a critical infrastructure facility. The model Act creates criminal penalties for individuals and organizations conspiring to encourage others to engage in trespass or damage of critical structure.

A model Act provides a framework for consideration of those drafting statutes. The model language can be adopted completely, partially, or ignored by a legislature or regulatory body.

Section 1 of the model Act defines critical infrastructure and critical infrastructure facility. These include those involving the oil and gas industry, electric utilities, refineries, liquid natural gas terminals, and a host of others.

It is Section 2, Part C of the model Act that broadens the scope of culpable parties:

“If any organization is found to be a conspirator with persons who are found to have committed any of the crimes described … the conspiring organization shall be punished by a fine … authorized by the appropriate provision of this section.”

Similar legislation has been introduced in Iowa, Ohio, Pennsylvania, Wyoming, and Minnesota.

Proposed legislation in Minnesota targets protesters participating in civil disobedience. Minnesota imposes a felony on anyone who “recruits, trains, aids, advises, hires, counsels, or conspires with … an individual who causes significant damage to critical infrastructure such as pipelines.” Penalties include up to 10 years in prison and a $20,000 fine.

Legislation proposed in Louisiana is especially strict. Those convicted of conspiracy to trespass upon a critical infrastructure facility can be imprisoned for five years, fined $10,000, or both. Conspirators attempting to disrupt pipeline construction would face imprisonment between six and 20 years, fined a maximum of $250,000, or both.

Those opposing critical infrastructure laws cite threats to free speech and freedom of assembly; rights protected by the First Amendment. Environmental groups describe protest as civic participation whereby citizens exercise their right to have their voices heard.

The growth of pipeline infrastructure in the coming decades is of significant economic, political, military, and strategic importance. The thrust and parry will continue in courts, legislatures, and the court of public opinion.

Mr. Cantafio practices oil and gas law in Alaska, Colorado, North Dakota, Texas, Utah, and Wyoming. He is the founder and named partner of Cantafio Law, P.C., with offices located in Denver and Steamboat Springs, Colorado, as well as in Cheyenne, Wyoming. Mr. Cantafio has lectured foreign professionals, primarily from Nigeria and China, with a focus on international oil and gas law, the petroleum industry, as well as international resources law. He publishes regularly — most recently in the 2017 September/October edition of the Utah Bar Journal.

Ms. Johnson is a recent graduate of the Global Energy Management Master of Science program at of the University of Colorado. Her Bachelor’s degree is in Finance from the University of Nevada. Ms. Johnson is an energy professional based in Denver, Colorado with experience in Accounting, Marketing, and Land roles in multiple resource plays across the country. Currently, Ms. Johnson is a Division Order Analyst for Antero Resources.


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