Features » April 16, 2019
Fossil Fuel Companies Are Enlisting Police to Crack Down on Protesters
An analysis by In These Times found, in at least seven states, the oil industry has backed critical infrastructure bills that criminalize pipeline protests.
State lawmakers across the country are advancing bills to increase penalties for demonstrators who interfere with 'critical infrastructure,' such as pipelines and gas terminals.
Researchers concluded in January that humanity has a hope, a 64 percent chance, of keeping the temperature rise below the international target of 1.5 degrees Celsius—if the phaseout of fossil fuel infrastructure begins now and every car, plane and power plant in existence gets replaced by a zero-carbon alternative at the end of its life span.
“We are basically saying we can’t build anything now that emits fossil fuels,” said Christopher Smith of the University of Leeds, the lead researcher.
Meanwhile, the multi-trillion-dollar fossil fuel industry is in the midst of an enormous infrastructure expansion. A 2018 industry report projected that $791 billion in oil and gas pipelines would be constructed in North America between 2018 and 2035.
Already, activists are countering industry influence by blocking pipeline construction, shutting down refineries, mobilizing coal towns against mountaintop removal mining and intervening in global climate talks. But the fossil fuel industry has the advantage of a national politics and a law enforcement apparatus that protect the interests of capital over those of the public.
As Dallas Goldtooth, a “keep it in the ground” campaigner for the Indigenous Environmental Network, puts it: “The oil industry and state collude to keep the status quo.”
The companies that produce fossil fuels and those that burn them, such as automakers and utility companies, spent $2 billion between 2000 and 2016 to influence climate legislation in the United States, outspending environmental groups and renewable energy lobbyists 10 to 1. The Trump administration has since offered industry “unprecedented access,” according to oil executives themselves in a gleeful 2017 meeting of the Independent Petroleum Association of America, a tape of which was obtained by The Center for Investigative Reporting. A 2018 study found that the Environmental Protection Agency is now at its most pro-business, anti-regulatory point in its nearly 50-year history.
Globally, fossil fuel companies have spread their influence throughout UN climate talks, successfully pushing neoliberal reforms like emissions trading schemes and carbon offsets—measures that give lip service to climate action while encouraging the use of fossil fuels.
To neutralize its opposition, the fossil fuel industry has sought to capture the “big green” leading environmental advocacy groups. BP has donated millions to the Nature Conservancy and shared a board member with the World Wildlife Federation (WWF) until 2014. Efforts to get the big greens to distance themselves from fossil fuel companies have seen some success, and many now refuse direct donations (including the WWF), but some partnerships persist: The Environmental Defense Fund (EDF) and the Nature Conservancy continue to work with BP and Shell, respectively, and the EDF still calls natural gas “an important fuel source.”
When the carrot doesn’t work, the energy industry is happy to use the stick. In the 1990s, for example, Shell infamously pressured Nigerian police and military forces to orchestrate a crackdown on indigenous protesters in the oil-rich Ogoniland region, leaving an estimated 2,000 people dead and 30,000 homeless. In 2016 and 2017, police from across the United States and National Guard troops protected the interests of Energy Transfer Partners, the company building the Dakota Access Pipeline, by brutally suppressing water protectors at the Standing Rock Sioux Reservation.
Now, state lawmakers across the country are advancing bills to increase penalties for demonstrators who interfere with “critical infrastructure,” such as pipelines and gas terminals. They are using model legislation developed by the American Legislative Exchange Council (ALEC), which counts fossil fuel companies Koch Industries and Chevron among its members. (Other energy companies, including BP, Exxon and Shell, gave up their memberships as ALEC became more notorious). An analysis by In These Times found the oil industry has directly lobbied for these bills in many states—in effect, working with the government to redefine criminality and then using that definition to lock up its opponents. With the fate of the planet at stake, these frontline battles pose a crucial question about what constitutes harm against society. Is it “criminal” for an industry to drive the global climate crisis in order to reap profits? Or is it “criminal” to (literally) get in the way?
The fossil fuel industry targets large, sustained, direct-action mobilizations like those at Standing Rock because of their efficacy. After thousands gathered to stop the Dakota Access Pipeline, including indigenous people from around the world, images of water protectors staring down tanks and heavy weaponry broke into the mainstream press and illustrated the industry’s brutality. The demonstrations even wrung action from President Barack Obama, who typically conceded to industry despite his climate promises. Late in the game, Obama put a temporary block on the pipeline (which was later overturned by the Trump administration).
Standing Rock helped build a mass movement for action on climate change, with thousands traveling to the camp and staying for weeks or months to show support. Anti-pipeline actions have proliferated since, with high-profile standoffs against Enbridge’s Line 3 expansion in Minnesota, the Bayou Bridge Pipeline in Louisiana and the Keystone XL pipeline in Montana.
But the fossil fuel industry has drawn its own inspiration from Standing Rock. In 2017, industry associations representing dozens of energy companies sent a letter urging the state legislators who are members of ALEC to support critical infrastructure legislation, which defines trespassing on energy plants and pipelines as a felony. The industry has since publicly supported, lobbied for or testified on behalf of critical infrastructure bills introduced in at least seven states: Iowa, Illinois, Louisiana, Minnesota, North Dakota, Oklahoma and Wyoming. Sometimes the legislators introducing critical infrastructure bills themselves have industry ties, like Ohio state Sen. Frank Hoagland (R), who runs a security company that teaches oil and gas firms to prepare for “eco-terrorists or eco-resistance.”
So far, known industry-backed bills have passed only in Iowa, Louisiana, North Dakota and Oklahoma. But at least 11 new critical infrastructure bills—and counting—have been introduced in 2019, with a bill in Indiana passing the legislature. And it's not just critical infrastructure bills: South Dakota recently passed two sweeping bills that criminalize pipeline protests by other means.
Louisiana’s law, which elevates trespassing on oil pipelines from a misdemeanor to a felony punishable by up to five years in prison and a fine of $1,000, went into effect Aug. 1, 2018. Fifteen people protesting the Bayou Bridge Pipeline have been charged under the law.
Meanwhile, the line is blurring between police and privately hired security firms. In 2013, energy infrastructure company Kinder Morgan asked a Pennsylvania police department for off-duty officers to “deter protests.” Though off-duty, the police were uniformed and driving squad cars. In 2017, after more than 400,000 gallons of oil spilled from the Keystone pipeline in Marshall County, S.D., TransCanada hired off-duty police to cordon off the area, including public roads. Several of the arrests in Louisiana were by off-duty police officers hired as guards by Energy Transfer Partners, which is building the pipeline.
“We thought we were talking to the law, but as it turns out, we were talking to the security for a pipeline company,” says Cherri Foytlin, an indigenous water protector who serves on the advisory council of the L’eau Est La Vie (Water Is Life) protest camp. “But then it turned out it was one and the same.” Foytlin was arrested in September 2018 and charged with two felonies under the new Louisiana law.
Those living in the “sacrifice zones” that bear the brunt of fossil fuel pollution and extreme weather, which are disproportionately communities of color, have adopted the boldest tactics to shut down fossil fuel projects. “Some people have more to lose and so they’re willing to put more on the line,” Foytlin says. “For the Bayou Bridge pipeline, the people directly affected will be the people in St. James Parish. The poison will go in their air. If there is an accident, they will be the ones to burn to death. Their kids will get cancer. They have to speak up to defend themselves.”
Protest repression hits these communities the hardest. At Standing Rock, law enforcement set up military-style checkpoints and beat water protectors, who also faced tear gas, water hoses and rubber bullets. Private guards employed by Energy Transfer Partners unleashed dogs. More than 800 people were arrested, with Native Americans facing the harshest charges and sentencing. Red Fawn Fallis, who is Oglala Lakota, was handed the longest sentence: four years and nine months.
“Indigenous resistance has always been a threat to the United States,” says Glenn Morris, Fallis’ uncle, who serves on the leadership council of the American Indian Movement of Colorado. “They will try to repress it at every opportunity.”
In 2017, with the support of the American Petroleum Institute, 84 Congress members, including four Democrats, sent a letter urging the attorney general to charge anti-pipeline protesters with terrorism under the Patriot Act. “They have developed this whole meme or framework that aboriginal, tribal, indigenous people are terrorists when they try to oppose the pipelines,” explains Daniel Sheehan, cooperating attorney with the Water Protector Legal Collective.
Today’s critical infrastructure bills, too, “play a dual role in demonizing social movements,” according to Chip Gibbons, policy and legislative counsel for Defending Rights and Dissent. “In order to justify these bills, legislators frequently resort to bombastic language smearing nonviolent protest as being akin to terrorism, mobs or sabotage.” When Wyoming state Sen. Leland Christensen (R) introduced the critical infrastructure bill in 2018, for example, he said the legislation would hold accountable “organizations that sponsor this kind of eco-terrorism.”
Earlier attempts to classify ecological activism as domestic terrorism took off with a post-9/11 “Green Scare” pushed by the fur and biomedical industries, which led to FBI surveillance, arrests, prosecutions and indictments. Federal and state lawmakers adopted ALEC model legislation that harshly penalized “trespassing” on animal research facilities.
Oil companies and government agencies are now employing counterterrorism tactics against pipeline protesters. According to reporting for the Guardian by Adam Federman and Paul Lewis, the FBI surveilled Keystone XL pipeline protesters from 2012 to 2014, as well as activists with 350.org’s Break Free From Fossil Fuels campaign. In 2016, the FBI opened a terrorism investigation of Standing Rock water protectors.
Energy Transfer Partners employed security firm TigerSwan to monitor Standing Rock. TigerSwan, the creation of a former U.S. Army special forces officer, routinely referred to water protectors as “terrorists” in reports obtained by The Intercept, and met with Homeland Security, the FBI and state agencies to identify “persons of interest.”
Both TigerSwan and the FBI hired informants at Standing Rock, a tactic known to destabilize movements by sowing distrust. Red Fawn Fallis faced civil disorder and weapons charges; the gun in question was brought into camp by FBI informant Heath Harmon, whom Fallis says started a duplicitous romantic relationship with her. “As long as the accusation against Red Fawn was that she was engaged in Gandhian civil disobedience and they brutalized her, she had unified support,” says Glenn Morris. “But the moment police alleged she had a gun, people started abandoning her.”
“What about the guns that the cops have?” Morris continues. “They have thousands and thousands of guns. They had armored personnel carriers.”
When the FBI’s secret Cointelpro operation, short for counterintelligence program, disrupted leftist movements in the 1950s and 1960s, movements often didn’t know Cointelpro’s full reach and role in stoking divisions until years later. As Assata Shakur, a former member of the Black Liberation Army, wrote in her autobiography, “Nobody back then had ever heard of the counterintelligence program set up by the FBI.”
The movements targeted by Cointelpro, like the Black Power and the American Indian movements, were those that the government most feared because of their revolutionary power. Sectors of the growing climate movement, with their goal of upending one of the world’s most powerful industries, likely stir similar fears—a sign of their effectiveness.
Movement leaders like Foytlin remain undeterred. “We just have to continue to challenge these systems and stop them from moving forward until there is justice,” she says. “People have to be brave. This is no joke. I’ve had child welfare called on me four times, I’ve had people attack me physically. We’re just out here trying to protect what we love.”
In the leftist tradition of supporting political prisoners, the Water Protector Legal Collective, as well as ad hoc groups of movement lawyers and water protectors, have provided support for those arrested. Local groups across the country, from environmentalists to labor to Black Lives Matter, are also mobilizing to stop anti-protest bills. A national Protect Dissent Network—whose partners include the National Lawyers Guild, Law for Black Lives and Palestine Legal—supports those efforts.
One collective defense strategy is to argue in court that direct action to stop fossil fuel extraction is necessary to safeguard the planet and society. While versions of this argument have been attempted for years, 2018 saw its success for the first time, winning acquittals for pipeline protesters in Massachusetts.
In the end, what’s needed to both combat these crackdowns and turn the tide on climate change is one and the same: to build consensus about the real purveyors of harm.
As Morris puts it, “People had better get their philosophical analysis straight about who the real criminals are in this society—and who has the right to defend themselves from those criminals.”
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Sarah Lazare and Simon Davis-Cohen
Sarah Lazare is a web editor at In These Times. Simon Davis-Cohen edits the “Ear to the Ground” newsletter, which tracks state legislation and compiles under-reported local stories.