At a Glance
Plaintiffs have challenged the constitutionality of Louisiana's anti-protest law in federal court. In September, 2019, the defendants moved to dismiss the case and the plaintiffs responded on October 7, 2019. The parties are scheduled for a status conference before the district judge and magistrate on October 31, 2019.
In 2018, the Louisiana Mid-Continent Oil and Gas Association (LMOGA) drafted and proposed an amendment to Louisiana’s Critical Infrastructure law, which was passed by the legislature, that is so vague, overly broad, and sweeping in scope that people in the state cannot be sure of where in the vicinity of Louisiana’s vast 125,000-mile network of pipelines they can legally be present, who decides where they can be present, or what conduct is prohibited that can subject them to up to five years in prison, with or without hard labor. The aim of the amended version of the law is to chill, and harshly punish, speech and expression in opposition to pipeline projects LMOGA promotes.
The amended statute, La. R.S. 14:61, is unconstitutional on its face and as applied because: 1) it is vague, as it does not provide adequate notice to plaintiffs and others – as well as state actors who must enforce the law – of what conduct is prohibited and where, and it allows for arbitrary and discriminatory enforcement; 2) it is overbroad and has the effect of chilling constitutionally protected speech or expression; and 3) targets speech and expressive conduct with a particular viewpoint for harsher punishment.
As of August 1, 2018, the definition of critical infrastructure includes the network of pipelines running through Louisiana, the overwhelming majority of which is not visible or clearly marked. Landowners with pipelines running through their properties, pedestrians walking along public roads, sidewalks, or other public spaces that may have pipelines running underneath, recreational boaters and commercial vessels in waters through which pipelines may run, now cannot be sure of where they can lawfully remain present, what conduct is prohibited, when, where, or why it is prohibited, or even who determines whether it is prohibited and how. Yet they face a sentence of up to five years in prison, with or without hard labor, for being on or near a type of critical infrastructure that could be completely invisible and virtually anywhere.
Before August 1, 2018, those who engaged in peaceful demonstrations or civil disobedience in the vicinity of pipelines or pipeline construction sites faced the possibility of a misdemeanor charge of trespass if they remained on the property without permission. As of August 1, 2018, they now face felony charges and up to $1,000 in fines.
On August 9, 2018, days after the law went into effect, the first criminal charges were levelled against Water Protectors – demonstrators non-violently protesting the Bayou Bridge pipeline from kayaks in a navigable waterway. More arrests and felony charges against demonstrators followed under the newly amended law over the next several weeks. Those arrested included people canoeing in navigable waters, people observing and sitting in trees, as well as a journalist.
As of the date of this filing, there have been more than a dozen arrests of people peacefully protesting against a pipeline project who were charged with felonies for acts that would have been charged as misdemeanor trespass before August 1, 2018 – and only if in fact those arrested did not have permission or a legal right to remain on the property in the first place. They now face the possibility of prosecution and, if found guilty, up to five years in prison and heavy fines.
The Louisiana law emerged as part of a national trend of similar legislation pursued by oil and gas interests, and supported by groups like the American Legislative Exchange Council (ALEC), aimed at cracking down on and chilling protests against fossil fuel infrastructure projects, which are taking place as part of an important national debate about the worsening environment and climate crisis. It is therefore no accident that the law was invoked immediately after its passage by a private security company working in tandem with local law enforcement at the behest of a private oil pipeline company.