Protestors demonstrate against the Dakota Access Pipeline in Portland. | Alex Milan Tracy/Anadolu Agency/Getty Images energy Trump administration seeks criminal crackdown on pipeline protests

The Trump administration is joining calls to treat some pipeline protests as a federal crime, mirroring state legislative efforts that have spread in the wake of high-profile demonstrations around the country.

The Transportation Department’s Pipeline and Hazardous Materials Safety Administration released a proposal Monday calling for Congress to expand a law that threatens fines and up to 20 years' prison time for "damaging or destroying" pipelines currently in operation. The expanded version would add "vandalism, tampering with, or impeding, disrupting or inhibiting the operation of" either existing pipelines or those "under construction."


While House Democrats will almost certainly block the proposal, it intensifies fights already underway in several energy-producing states to tamp down the waves of pipeline protests launched by progressive environmental advocates around the country as they seek to stop production of fossil fuels. PHMSA insists it doesn't want to inhibit legitimate protests, but free speech advocates worry that efforts to impose massive fines and years in prison for “impeding” pipeline construction could also infringe on activists' First Amendment rights.

“The proposed penalty is far and away more extreme than what we’ve seen at the state level,” said Elly Page, attorney for International Center for Not-For-Profit Law, a nonprofit group that has tracked anti-protest bills through state legislatures. “When you combine provisions that vague to penalties that extreme, that creates uncertainty about what is and isn’t legal.”

PHMSA included the proposal, which appears similar to model legislation that conservative American Legislative Exchange Council created, in a longer list of changes the department would like to see in pipeline safety standards that Congress is set to reauthorize.

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A spokesperson for Energy and Commerce Chairman Frank Pallone said he "has no intention of allowing a pipeline safety bill to be used as a vehicle for stifling legitimate dissent and protest," and is concerned that is what the proposal would do.

"This provision will not make it past the Committee, but Chairman Pallone remains hopeful that we can find common ground on other issues," the spokesperson said.

A PHMSA spokesperson said the agency's goal is to "deter individuals from activities that can cause serious harm," such as attempting to tamper with valves on existing pipelines.

"This proposal is not meant in any way to inhibit lawful protesters from exercising their first amendment rights, and PHMSA is committed to working with Congress to make sure that this is clear in any final legislation," PHMSA spokesperson Darius Kirkwood said in an email to POLITICO.

Environmental groups, American Indian tribes, local landowners and other pipeline opponents have fought projects around the country with tactics including the monthslong demonstration at a camp site erected along the path of the Dakota Access pipeline, as well as activists who have spent months living in trees in Virginia in an effort to block construction of the Mountain Valley Pipeline.

“This provision is a clear infringement on the basic right of speech and assembly and a poorly veiled effort to undermine the ability of Native and Indigenous communities to advocate for themselves and their tribal lands,” said Sen. Ed Markey (D-Mass.) in a statement.

The American Gas Association and American Petroleum Institute said they backed the overall package of proposals PHMSA offered, but declined to comment on the specific proposal to mete out prison sentences for impeding construction.

Trade association Interstate Natural Gas Association of America did not directly address the administration's proposed changes but said it supported efforts to protect infrastructure.

“Generally speaking, INGAA is in favor of laws that serve to deter pipeline vandalism,” a spokesperson for the group said. “Tampering with or vandalizing critical infrastructure can create serious safety risks to the public, pipeline employees and the perpetrators. These acts of vandalism could also have devastating environmental impacts.”

Environmental groups criticized PHMSA’s suggestion, saying it would bring partisan politics to an agency in charge of technical pipeline safety regulations. PHMSA’s regulations have traditionally enjoyed wide bipartisan support — the last major reauthorization cleared both the House and Senate unanimously and President Barack Obama signed it into law in June 2016.

“We're outraged and appalled at the U.S. Department of Transportation proposal to further target and criminalize communities who are exercising their lawful right to protest, and demanding a halt to environmental extraction,” said Tamara Toles O'Laughlin, North America director for the climate activist group 350.org, which has protested pipeline development.

The current pipeline safety law authorization lapses on Sept. 30, 2019, and Congress has taken some tentative steps toward beginning its work on extending it. Senate Commerce and House Transportation and Infrastructure subcommittees held their own hearings in early April on the issue, as did an Energy and Commerce subcommittee in early May.

Rep. Bobby Rush (D-Ill.), chairman of the Energy and Commerce Energy Subcommittee, told POLITICO in a statement he is “reviewing” the PHMSA proposal but that he intends to shortly release draft pipeline safety draft legislation along with Pallone.

A House Transportation and Infrastructure Committee spokesperson said the panel is in the initial stages of writing its reauthorization and continued to solicit input from stakeholders. A spokesperson for Sen. Tammy Duckworth (D-Ill.), ranking member of the Senate Commerce subcommittee tasked with crafting the reauthorization, said she’s “reviewing the proposal.”

Senate Commerce Chairman Roger Wicker (R-Miss.) said he would be open to the administration's proposal.

“There’s merit to looking at that,” Wicker told POLITICO.

But other Republicans also deferred comment on whether they supported criminalization of pipeline protests.

A spokesperson for Sen. Deb Fischer (R-Neb.), who chairs the Commerce subcommittee tasked with writing the reauthorization, said she “looks forward to reviewing the ideas put forward by Secretary [Elaine] Chao and PHMSA” and is developing legislation. A spokesperson for Rep. Fred Upton (R-Mich.), ranking member of the Energy and Commerce Energy Subcommittee who played a key role in getting a 2016 reauthorization across the finish line, said he was reviewing the administration’s proposal.

The PHMSA language comes as six states have in the past several years enacted laws making it a crime to protest near "critical infrastructure," such as pipelines, and two more — Texas and Missouri — are sending similar bills to their governors for expected signing, according to the ICNL database. Other state proposals targeting protesters have fallen short; for example, Republicans in North Dakota proposed a bill in 2017 that would have made it legal for motorists to run over protesters, but the measure failed.

But the language DOT is proposing, taken with the actions energy-friendly states have taken, could run afoul of First Amendment rights, said Elizabeth Klein, deputy director at New York University School of Law’s State Energy and Environmental Impact Center.

“Some of these regulatory proposals certainly appear to be less about actually protecting pipeline operations and more about intimidating anyone who opposes pipeline projects,” Klein said.

Civil rights groups have already challenged some of the recent state laws. The American Civil Liberties Union filed a suit in South Dakota over the state’s recently enacted “Riot Boosting Act,” legislation that would make it a crime to take part or help organize protests. The Center for Constitutional Rights also sued Louisiana earlier this month over a law that state passed last year that would allow it to sentence protesters near any of the states’ 125,000 miles of pipeline to up to five years in prison with hard labor.