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.


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

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