“The refusal to prosecute us just proves what we already knew: These critical infrastructure laws are unconstitutional. We have the right to resist and we will not be deterred.”
By Brett Wilkins
Free speech, environmental, and Indigenous advocates on Tuesday welcomed a Louisiana district attorney’s decision to reject all criminal charges against 16 activists and a journalist, some of whom were the first defendants tried under an amendment to the state’s critical infrastructure law that criminalized peaceful protests of fossil fuel projects.
“Louisiana’s ‘critical infrastructure’ law is an attempt to take away our personal freedom along with our constitutional right to protest.”
â€”Annie White Hat, water protector
The 16 water protectors were arrested in 2018 while protesting the Bayou Bridge Pipeline, the tail end of Energy Transfer Partners’ (ETP) highly controversial Dakota Access Pipeline.
Cindy Spoon, who was pulled from a kayak and arrested while protesting the pipeline, then also charged under the law, said that “companies like Energy Transfer Partners and the politicians that do their bidding are trying to deter us from defending our communities from the devastating impacts of new fossil fuel infrastructure.”
“They have tried to criminalize us and our actions since the Indigenous resistance at Standing Rock,” said Spoon. “They were willing to go as far as to break the law themselves to illegally arrest us. The refusal to prosecute us just proves what we already knew: These critical infrastructure laws are unconstitutional. We have the right to resist and we will not be deterred.”
Completed in 2019, Bayou Bridge can transport up to nearly half a million barrels per day of crude oil along a 163-mile corridor that traverses the Atchafalaya Basin, the nation’s largest wetland and swamp.
Oil spills, which have devastated the region’s wildlife, fisheries, and communities beforeâ€”most notably after the 2010 BP Deepwater Horizon disasterâ€”have been a major concern for the pipeline’s opponents. Bayou Bridge’s route also includes parts of Lousiana’s “Cancer Alley,” where residents of St. James Parish, the pipeline’s terminus, have been fighting a massive proposed petrochemical complex.
In December 2017, the U.S. Army Corps of Engineers issued a permit for the Bayou Bridge Pipeline without performing an environmental impact review of the project. The move incensed Indigenous and other local people, who vowed to carry out nonviolent direct action to stop construction.
The following year, as resistance to the pipeline mounted, the Louisiana Mid-Continent Oil and Gas Association, an influential fossil fuel lobby group, successfully pushed the state Legislature to add pipelines to the critical infrastructure list. The move significantly increased penalties for pipeline protesters, making it a felony punishable by five years’ imprisonment with possible hard labor for unauthorized presence on or near pipeline construction sites.
“We will not stop our work to protect our water for future generations, and we will continue to stand for the rights of Mother Earth, who has no voice and who ultimately has the last say.”
The controversial critical infrastructure law was inspired by similar legislation drafted by the American Legislative Exchange Council (ALEC), an organization of right-wing lawmakers and corporate lobbyists that drafts and shares model bills that are often introducedâ€”sometimes verbatimâ€”by state legislatures.
According to the Center for Constitutional Rights (CCR), which represented the charged protesters, “Legislation aimed at pipeline protesters has been introduced more than 23 times in 18 states since 2017, and enacted in 15.”
In August 2018, three members of the L’eau Est La Vie (Water Is Life) floating resistance camp became the first people to face felony charges under Louisiana’s new law.
The following month, ETPâ€”which had argued it was legally allowed to expropriate private propertyâ€”agreed to halt construction on the pipeline after several co-owners of undeveloped marshland filed an injunction accusing the company of clearing trees on the property without permission.
However, in December 2018 a judge ruled that ETP was entitled to seize private property through eminent domain, even though it had trespassed on the land while building the pipeline.
Last July, a Louisiana appeals court found that ETP had “trampled” landowners’ rights, overturning the lower court’s ruling that the owners were entitled to $150 each for the loss of their land. The plaintiffs were instead awarded $10,000 each plus legal expenses. The seizure stood, as it was legal under Louisiana’s eminent domain law.
In a 6-1 decision in May, the Louisiana Supreme Court ruled that landowners whose property is expropriated must be fully compensated
Meanwhile, prosecutors proceeded with cases against the water protectors. In May, a federal judge ruled that the arrested activists, who are from Louisiana and Mississippi, and journalist, who is from New York, could proceed with a legal challenge of the critical infrastructure law.
According to CCR:
Three of the people arrested and charged under the law have brought a case challenging its constitutionality. In White Hat v. Landry, attorneys for the protesters and the journalist have argued that the law is unconstitutional because it is so vague that it violates due process, as well as the First Amendment.
A federal judge in Louisiana recently denied motions by the local sheriff and district attorney seeking to have the case dismissed. Some of the arrests were made on property where it was later found that the pipeline company was itself trespassing.
In an expropriation case brought by the pipeline company, three landowners countersued for trespass and a state appellate court agreed that the company had committed a trespass and violated their rights to due process, but it was the protesters who were charged with felonies for allegedly remaining on the same property without permission.
Annie White Hat, one of the water protectors arrested and charged under the law, said in a statement that “today, we are counting coup on a trifecta of colonizers. Energy Transfer Partners, the American Legislative Exchange Council, and the politicians along with their police forces who viewed our powerful grassroots resistance to the Bayou Bridge Pipeline as a viable threat to their capitalist greed and waged an unjust war to silence us.”
“Louisiana’s ‘critical infrastructure’ law is an attempt to take away our personal freedom along with our constitutional right to protest,” White Hat continued. “I stand proud of our work and am grateful for the countless allies who bravely stepped forward to support the first direct actions to stop oil and gas in the swamps of south Louisiana.”
“Climate change will soon overcome our ability to survive unless we take action to mitigate the root cause, direct or otherwise,” she added. “We will not stop our work to protect our water for future generations, and we will continue to stand for the rights of Mother Earth, who has no voice and who ultimately has the last say.”
Brett Wilkins is staff writer for Common Dreams.
This article was published on July 13 at Common Dreams.