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Native American protesters and their supporters are confronted by private security guards at a work site for the Dakota Access pipeline, near Cannon Ball, N.D., on Sept. 3, 2016. Photo: Robyn Beck/AFP/Getty Images

Oil lobbyist touts success in effort to criminalize pipeline protests, leaked recording shows

Originally published: The Intercept by Lee Fang (August 19, 2019)   | 

The American Fuel & Petrochemical Manufacturers, a powerful lobbying group that represents major chemical plants and oil refineries, including Valero Energy, Koch Industries, Chevron, ExxonMobil, and Marathon Petroleum, has flexed its muscle over environmental and energy policy for decades. Despite its reach, AFPM channels dark money and influence with little scrutiny.

The group is now leveraging its political power to criminalize protests of oil and gas infrastructure.

In an audio recording obtained by The Intercept, the group concedes that it has been playing a role behind the scenes in crafting laws recently passed in states across the country to criminalize oil and gas pipeline protests, in response to protests over the Dakota Access pipeline. The laws make it a crime to trespass on public land used for “critical infrastructure,” impose a fine or prison time for violators, and hold protesters responsible for damage incurred during the protest. Many of the laws also carry heavy fines to groups and individuals who support such demonstrations.

The trade group, which was founded in 1902, has long played an outsized role in shaping policy disputes. Last year, AFPM and its members mobilized over $30 million to defeat the carbon tax proposed in Washington State, easily outspending an environmentalist campaign funded by philanthropist billionaires and small donors.

In June, Derrick Morgan, a senior vice president for federal and regulatory affairs at AFPM, spoke at the Energy & Mineral Law Foundation conference in Washington, D.C., explaining the role his trade group has played in criminalizing protests. AFPM did not respond to a request for comment.

James G. Flood, a partner with law firm Crowell & Moring’s lobbying practice, introduced Morgan as “intimately involved” in crafting model legislation that has been distributed to state lawmakers around the country. The attendees at the event received copies of the model bill, called the Critical Infrastructure Protection Act, distributed through the American Legislative Exchange Council, a conservative nonprofit that serves as a nexus for corporate lobbyists to author template legislation that is then sponsored by state lawmakers affiliated with ALEC.

When the template legislation went out to hundreds of ALEC member legislators, it was accompanied with a letter of support from AFPM and others, first reported by HuffPost. The ALEC task force that developed the legislation also included representatives from AFPM.

“So you see that, and you’re reading the materials as well, that this model legislation would itemize criminal trespass and also a liability for folks that cause damage during protest,” Morgan said, citing the Standing Rock protests against the Dakota Access pipeline in North Dakota.

“Another key aspect of it,” Morgan continued, “which you also include, is inspiring organizations — so organizations who have ill intent, want to encourage folks to damage property and endanger lives — they are also held liable.”

The legislative text Morgan described has been introduced in various forms in 22 states and passed in nine states: Texas, Louisiana, Oklahoma, Tennessee, Missouri, Indiana, Iowa, South Dakota, and North Dakota.

Any effort to sabotage pipeline infrastructure is already a federal crime. The AFPM-backed bills expand the purview of law enforcement, classifying peaceful protests that seek to block the construction of pipelines as a violent threat.

For instance, the Oklahoma variation of the law, which copies much of the template legislation, creates fines of at least $10,000, and imprisons, for up to a year, demonstrators who have shown the “intent” to have trespassed to damage or in any way disrupt an infrastructure facility. Those convicted of damaging or disrupting infrastructure face a minimum of 10 years in prison, as well as much as $100,000 in fines.

The Oklahoma bill, signed by then-Gov. Mary Fallin in 2017 also levels fines for organizations found to have been “conspiring” with perpetrators, with penalties of 10 times the fines paid by perpetrators. This suggests advocacy groups linked to protesters could be fined from $100,000 to $1 million.

In Iowa, the legislation, signed by Gov. Kim Reynolds this year, creates penalties of $85,000 to $100,000 for those convicted of sabotaging critical infrastructure, which the law defines broadly as any interruption to a variety of services.

South Dakota’s version of the critical infrastructure protest law creates civil penalties for “riot boosting,” which the law signed by Gov. Kristi Noem, defines as anyone who “directs, advises, encourages, or solicits other persons participating in the riot.”

The version of the model legislation enacted in Iowa, says Daniel Zeno, ACLU of Iowa Policy Director, “has the potential to chill environmental protest, punish public participation, and mischaracterize advocacy protected by the First Amendment.” The ACLU has also filed a lawsuit against the South Dakota version of the bill, and is monitoring how the bill will be enforced in other states to ensure free speech rights aren’t curtailed.

As The Intercept has previously reported, the Pennsylvania version of the pipeline protest legislation, proposed this year, would require demonstrators to reimburse the cost of policing the demonstration. The bill defines demonstrations as “a political rally or event, a demonstration, speech making, the holding of vigils or religious services and all other forms of conduct the primary purpose of which is expressive activity or expression of views or grievances.”

In his remarks, Morgan cited the costs associated with dealing with the Dakota Access pipeline as the impetus for the lobbying push. “We’ve seen a lot of success at the state level, particularly starting with Oklahoma in 2017,” Morgan said. “We’re up to nine states that have passed laws that are substantially close to the model policy that you have in your packet.”

AFPM also financed a variety of pro-pipeline advocacy groups to build the appearance of public support for the projects, particularly Keystone XL, and was highly involved in the fight over DAPL.

The AFPM lobbyist also boasted that the template legislation has enjoyed bipartisan support. In Louisiana, Democratic Gov. John Bel Edwards signed the version of the bill there, which is being challenged by the Center for Constitutional Rights. Even in Illinois, Morgan noted, “We almost got that across the finish line in a very Democratic-dominated legislature.” The bill did not pass as it got pushed aside over time constraints at the end of the legislative session.

Lobbying disclosure standards vary by state, but evidence suggests AFPM and its member companies have played a direct hand in getting bills passed, moved along through committees, and signed into law.

In Missouri, the witness list in support of the pipeline protest bill lists Peter Barnes, AFPM’s state and local outreach manager. The Cheyenne office of law firm of Holland & Hart reportedly crafted the pipeline protest bill proposed in Wyoming on behalf of AFPM and provided the text for a local GOP lawmaker to introduce, according to a local news story.

Emails obtained by the investigative journalism nonprofit Documented show efforts by the oil and gas lobby  to pressure Oklahoma’s governor to sign the pipeline protest legislation. In one email, an assistant to the governor relays a message from Valero lobbyist Julie Klumpyan, noting that she had left a message urging Fallin to sign the bill. “They think it will help deter vandalism & disruptive actions,” wrote the assistant. Valero is a prominent member of AFPM.

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