Friday, May 17, 2019

Shale Law in the Spotlight – Update on State Critical Infrastructure Protection Statutes: Indiana, Iowa, and Louisiana


Written by Chloe Marie – Research Specialist

Since 2017, a number of states have taken legislative action to protect elements of their infrastructure, including oil and gas pipelines, from damage or disruption. While some have argued that the various legislative enactments are designed to reduce pipeline protests, legislators do not always explicitly mention ongoing protest as a motivation behind the legislation.

This article will comprehensively address critical infrastructure protection statutes that have been enacted in the states of Indiana, Iowa and Louisiana. A following article will address similar statutes in the state of North Dakota, Oklahoma and South Dakota. On June 13, 2018, we published an article entitled Overview of State Critical Infrastructure Protection Statutes and Related Legislation. This article and our subsequent article provide an update as well as additional details of the relevant state statutes.

Indiana

On May 6, 2019, Governor Eric Holcomb of Indiana signed into law Senate Bill No. 471 to establish criminal offenses for certain actions committed against critical infrastructure. The term “critical infrastructure” includes natural gas gathering, transmission and distribution pipelines and facilities, and Liquefied Natural Gas (LNG) terminal and storage facilities, among others.

The new provisions apply to anyone who “knowingly or intentionally” enters property containing a critical infrastructure facility without the proper authority. Such an offense is a Level 6 felony, and the offender might face imprisonment of up to two years and a half, and/or a monetary fine of up to $10,000.

Anyone who damages or defaces a critical infrastructure facility in a reckless or intentional manner can be convicted of mischief, a Level 5 felony carrying a custodial sentence of up to six years and/or a fine of up to $10,000. The offense may be increased to a Level 4 felony in cases where the damage to a critical infrastructure amounts to a pecuniary loss of at least $50,000 or when the damage causes a substantial interruption or impairment of a critical infrastructure utility service rendered to the public.

In addition, the legislation provides that someone caught conspiring to undermine the operation of critical infrastructure can be assessed a fine up to a maximum of $100,000, and anyone inciting another person either to enter property containing a critical infrastructure or to damage such infrastructure will be responsible for covering civil damages.

These provisions relating to criminal offenses involving critical infrastructure facilities will become effective on July 1, 2019.

Iowa

Iowa Governor Kim Reynolds signed into law Senate File 2235 on April 17, 2018, establishing new penalties for sabotage that involve a critical infrastructure, such as any storage, transport or delivery system of natural gas and petroleum products.

According to this piece of legislation, any “unauthorized and overt act” taken with the intent of causing a substantial and widespread interruption or impairment of services provided by a critical infrastructure is considered to be critical infrastructure sabotage. The legislation clarifies, however, that any agricultural condition or activity related to farm production that interrupts or damages a critical infrastructure cannot be considered as sabotage. An individual who commits critical infrastructure sabotage will be charged with a Class B felony and sentenced to a fine of not less than $85,000 nor more than $100,000.

Louisiana

Act No. 692 relating to crimes against critical infrastructure – also identified as House Bill No. 727 – became law on May 30, 2018. This legislation amends and adds new provisions to Louisiana Revised Statutes 14:61 targeting violent pipeline demonstrations. Act No. 692 became effective on August 1, 2018.

The legislation provides that anyone involved in trespassing upon a critical infrastructure could face imprisonment for a maximum of 5 years, with or without hard labor, and/or a fine up to a maximum of $1,000. The legislation also clarifies that nothing in this Act should or may be interpreted as in any way preventing peaceful and proper demonstrations regarding matters of public interest or recreational activities located close to a pipeline area.

If any damage occurs to a critical infrastructure in an intentional manner, the perpetrator could be charged with a criminal offense and punished with a maximum imprisonment of up to 15 years, with or without hard labor, and/or a fine of up to a maximum of $10,000. In cases where human life is likely to be threatened, the maximum jail sentence and monetary fine would be increased respectively to 20 years and $25,000. In addition, anyone involved in a conspiracy to criminally damage a critical infrastructure can be imprisoned for as much as 12 years and fined not more than $250,000.

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This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture

Wednesday, May 15, 2019

Shale Law in the Spotlight – North Dakota Governor Burgum Signs Critical Infrastructure Protection Legislation


Written by Chloe Marie – Research Fellow

During the summer of 2017, North Dakota experienced heightened tensions amid extensive protest activity throughout the state directed against the construction and operation of the Dakota Access Pipeline. This protest activity resulted in arrests, claims of physical violence, property damage, and a significant disruption to the economic activity associated with pipeline construction. By February 2017, the North Dakota government already had spent a sum of at least $33.7 million in protest-related costs. In order to reduce the likelihood of similar impacts in the future, Governor Doug Burgum signed into law Senate Bill 2044 on April 10, 2019, imposing severe penalties to those involved in the damaging critical infrastructure within the state.

As with many issues surrounding the construction of the Dakota Access Pipeline, consideration of this legislation generated a strong negative response from those opposed to pipeline construction. The American Civil Liberties Union (ACLU) of North Dakota declared, after the introduction of Senate Bill 2044 in the Senate, that “[t]his bill, like similar legislation in Oklahoma and Colorado, builds on a trend of anti-protest legislation that aims to chill protesters from using precisely those tactics that have proven most successful for getting their voices heard.” Despite this opposition, the legislation easily passed in both chambers of the North Dakota legislature with final votes of 43 to 4 and 76 to 14 in the Senate and House of Representatives, respectively.

Senate Bill 2044 amends and reenacts Section 12.1-21-06 of the North Dakota Century Code relating to tampering with or damaging a public service to include provisions dealing with the protection of critical infrastructure. The legislation considers as critical infrastructure: refinery and manufacturing facilities, water facilities, natural gas compressor stations, LNG terminal or storage facility, land transport facilities, gas processing plants, pipelines, and oil and gas production sites, among others.

The amended 12.1-21-06 provision states that anyone who intentionally causes a substantial interruption or impairment of a critical infrastructure facility or a public service shall be guilty of a Class C felony, which is punishable in North Dakota by five years of imprisonment, a fine of $10,000, or both. In cases where an individual instead acted knowingly or recklessly, he shall be guilty of a Class A misdemeanor, and shall be sentenced to a term of imprisonment of one day, a fine amounting to $20,000, or both.

Under the legislation, what is considered to be a substantial interruption or impairment includes “[t]ampering with or damaging the tangible property of another;” “[i]ncapacitating an operator of a critical infrastructure facility or a public service;” “[d]amaging, destroying, vandalizing, defacing, or tampering with equipment in a critical infrastructure facility;” “[d]amaging, destroying, vandalizing, defacing, impeding, inhibiting, or tampering with the operations of a critical infrastructure facility;” or [i]nterfering, inhibiting, impeding, or preventing the construction or repair of a critical infrastructure facility.”

In an apparent effort to address the impact of organizational planning on protest activities, the legislation sanctions organizations that engage in conspiracies to tamper with or damage a critical infrastructure by authorizing the imposition of fines up to $100,000.

With the passage of this legislation, North Dakota joins the states of Iowa, Oklahoma, Louisiana and South Dakota in enacting provisions to deter anti-pipeline protest activity.

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This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture