Written by Chloe Marie – Research Fellow
The U.S. Department of Homeland Security has identified 16 critical infrastructure “assets, systems, and networks” that are “considered
so vital to the United States that their incapacitation or destruction would
have a debilitating effect on security, national economic security, national
public health or safety, or any combination thereof.” The energy sector is
considered to be one of these critical infrastructure sectors. Since 2017, a
number of states have taken legislative action to protect critical
infrastructure. While some media reports have linked the various
legislative proposals and enactments to recent pipeline protests, such
legislation generally does not explicitly mention ongoing protest as a
motivation behind the legislation.
This article will address critical infrastructure protection and related
legislation that has been enacted in the states of Iowa, Oklahoma, North
Dakota, South Dakota, and Louisiana, as well as legislation that was vetoed in
Wyoming. Some other states, including Pennsylvania, Ohio, and Washington, have
pending legislation on the topic.
Enacted Critical
Infrastructure Protection Legislation
Iowa
Senate File 2235 was introduced in the
Iowa Senate in February 2018 and was signed into law by Governor Kim Reynolds
on April 17, 2018.
The bill makes anyone who commits sabotage – also defined as an
“unauthorized and overt act” with the intent to cause “substantial and widespread
interruption or impairment” of a critical infrastructure – guilty of a Class B
felony punishable by a fine of at least $85,000 but not greater than $100,000.
Oklahoma
House Bill 1123 was introduced in the
Oklahoma House of Representatives in February 2017 and was signed into law by
Governor Mary Fallin on May 3, 2017.
The bill establishes punishment for trespassing on property containing a
critical infrastructure facility and creates three new penalties in this
regard. Critical infrastructure facilities include pipelines, natural gas
processing plants and compressor stations, among others. The bill provides that
any person entering a property containing a critical infrastructure facility
without permission is guilty of a misdemeanor with punishment of up to 6
months’ imprisonment and/or monetary penalty of up to $1,000.
The bill also states that anyone who enters a property containing a
critical infrastructure facility with the intent to “willfully damage, destroy,
vandalize, deface, tamper with equipment, or impede or inhibit operations of
the facility” is guilty of a felony and liable for one year’s imprisonment
and/or a monetary penalty of up to $10,000. The bill further specifies that “willfully
damag[ing], destroy[ing],
vandaliz[ing], defac[ing], or tamper[ing] with
equipment in a critical infrastructure facility is a felony punishable by ten
years’ imprisonment and/or monetary penalty of $100,000. These new provisions
can be found in Section 1792, Title 21 of the Oklahoma Statutes.
North Dakota
During the month of January 2017, three pieces of proposed legislation –
HB 1293, 1304 and 1193 – addressing protection of highly secured premises in
North Dakota were introduced. After advancing through the legislature, House
Bills 1293 and 1304 were signed into law by Governor Doug Burgum on February 3,
2017. House Bill 1193 died in the Senate.
Among other things, HB 1293 provides that an individual
trespass in a highly secured premises with full knowledge of the illegality of
this action will be guilty of a class B misdemeanor and liable for up to 30
days of imprisonment and subject to a $1,000 fine. HB 1304 criminalizes the wearing of a
“mask, hood or other device that covers, hides, or conceals any portion of [the] face”
with the intent to “intimidate, threaten, abuse, or harass any other
individual” when committing a criminal offence.
Governor Burgum signed into law these two bills and declared them as
emergency measures. He did so around the time that protests were ongoing
against the construction of the Dakota Access Pipeline.
South Dakota
On March 13, 2017, South Dakota Governor Dennis Daugaard signed into law
Senate Bill 176 designed to preserve and protect school and public lands from
rallies of large group of people, as an emergency measure. Section 5 of this
legislation provides that anyone disobeying an order not to enter school or
public lands will be guilty of a class 1 misdemeanor.
Louisiana
The Louisiana State Legislature passed and sent to Governor John Bel
Edwards for executive approval House
Bill 727 specifying criminal offenses involving trespass on
critical infrastructure on May 23, 2018. The Bill provides that the trespassing
of a critical infrastructure is punishable by up to 5 years of imprisonment
with or without hard labor and/or a fine up to $1,000.
In addition, the bill specifies that anyone who intentionally damages a
critical infrastructure is liable for up to 15 years of jail time with or
without hard labor and/or up $10,000 in fines. If it turns out that human life
could be threatened or the operation of a critical infrastructure could be
hindered during the commission of intentional damage, then the sentence will be
up to 20 years of imprisonment and up to $25,000 in fines. Governor Edwards
signed the legislation on May 30, 2018.
Vetoed Critical
Infrastructure Protection Legislation
Wyoming
On March 10, 2018, both the House of Representatives and the Senate
passed Act No. 65 establishing new crimes
relating to the protection of critical infrastructure; however Wyoming Governor
Matt Mead vetoed the legislation four days later. In a letter dated March 14,
Governor Mead, despite his support for protecting critical infrastructure,
pointed out concerns that this legislation failed to appropriately consider.
The Senate overrode the Governor’s veto, but the House of Representatives did
not.
The Act would have punished anyone intentionally or knowingly impeding
critical infrastructure with a misdemeanor conviction and up to 6 months’
imprisonment and/or a fine of up to $1,000. In the case of intentionally or
negligently caused damage, such an offense would have been considered to be a
felony punishable by up to 10 years of imprisonment and a fine up to $10,000,
or both. With regard to trespass, the Act would have provided that the trespass
of a critical infrastructure was considered to be a misdemeanor with no more
than one year of imprisonment and a fine of not more than $1,000, or both.
Pending Critical
Infrastructure Protection Legislation
Pennsylvania
In Pennsylvania, Senator Mike Regan introduced Senate Bill 652 on April 25, 2017, that
would extend the scope of criminal trespass to include the trespassing upon a
critical infrastructure facility. According to the bill, an individual is
prohibited from entering or attempting to enter a critical infrastructure
facility unless properly authorized to do so; otherwise, it will constitute a
second-degree felony and the trespasser will be liable for less than one year
of imprisonment and subject to a fine up to $5,000.
If an individual enters the critical infrastructure premises with the
intent to “willfully damage, destroy, vandalize, deface, tamper with equipment
or impede or inhibit operations of the facility,” he or she will commit a
first-degree felony with punishment of imprisonment of up to two years and a
fine up to $10,000. This same offense and punishment also applies to any
individual assisting another to commit trespass of a critical infrastructure
facility as well as anyone who enters and remains in the critical
infrastructure facility despite an order to leave personally communicated to
the trespasser.
The bill clarifies, however, that it is a defense to prosecution that
someone entered the premises in order to prevent a potential dangerous threat
to public health and safety or any police officer entered in order to pursue of
a suspect or because he has reasonable grounds to believe evidence of criminal
conduct within the facility needs to be protected from destruction. The Senate
agreed to final passage of the bill on May 23, 2018. It is now pending in the
House of Representatives.
Ohio
On January 24, 2018, Senate Bill 250 was introduced in the
Ohio Senate, which prohibits criminal trespass of critical infrastructure, and
also creates new crimes, namely criminal mischief and aggravated trespass on a
critical infrastructure facility. The bill is now pending before the Senate
Judiciary Committee.
Washington
On January 8, 2018, Senate Bill 5009 relating to offenses
involving economic disruption was reintroduced in the Senate for the fifth time
and is now pending in the Senate Committee on Law & Justice. SB 5009 was
originally introduced on January 9, 2017.
SB 5009 proposes to hold criminally liable anyone who causes economic
disruption by “interfer[ing] with, tamper[ing] with, damages, or obstruct[ing] any pipeline facility,
bulk oil terminal, marine terminal, tank car, waterborne vessel or barge, or
power plant.”
This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture
This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture
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