A man protests against a pumpjack representing the energy industry. (Getty royalty free)
Early in 2018 Iowa lawmakers passed, and Republican Gov. Kim Reynolds signed, a bill that imposed a stiff fine of up to $100,000 and a prison term of up to 25 years for people who purposely vandalize — or who attempt to — so-called “critical infrastructure” in the state: telecommunications and broadband, water and energy pipelines, and other equipment deemed “crucial lifeline systems” in the Hawkeye State.
But the real target of the bill, environmental groups suspected, were people protesting an underground oil pipeline passing through that state.
Environmentalists weren’t the only ones lobbying against the measure. Joining them was the Iowa branch of the International Union of Operating Engineers — the labor union representing heavy equipment operators on construction projects.
Ed Fallon, a former Iowa legislator who now heads an environmental advocacy organization called Bold Iowa that focuses on combating climate change, says that his organization and the union have often found themselves on opposite sides where the pipeline project was concerned. The project, after all, employed union members who saw it as an opportunity for work.
Not this time.
The first time the bill was introduced, in an even more stringent form, Fallon and his counterpart, Tom Jochum, a lobbyist whose clients include the combined unions that make up the Iowa building trades as well as the Operating Engineers, found common cause in fighting it. When that bill failed, its backers rewrote it to tame it down some. Even then, the union remained steadfast in opposition.
“We still had problems with the way it was drafted because it could take legitimate civil disobedience, whether that’s a strike or a protest against something that we may even want, and turn that activity into a felony,” Jochum told Wisconsin Examiner in a telephone interview.
“We felt that the laws that we already had on sabotage and causing damage to any infrastructure, critical or not, were already addressed in the code, and this was just overkill.”
A little more than a year later, Wisconsin’s branch of the same union that unsuccessfully fought the Iowa bill has been part of a winning coalition backing similar legislation in Madison. And, unlike Iowa, some Democratic lawmakers in both houses of the Wisconsin legislature have enthusiastically signed on.
How a measure that many activists have criticized as criminalizing protest succeeded with heavy bipartisan support is a story in part of evolution — a sort of legislative natural selection.
On Oct. 10, the Wisconsin Assembly passed AB 426 — dubbed by its supporters the “Worker Safety and Energy Security Act” — on a voice vote. Four Democrats went on record to register their opposition. The bill has now gone to the state Senate, where its companion bill, SB 386, is in committee.
Union representatives speaking in support of the bills at a public hearing have said they were acting to protect union members, particularly in the pipeline industry from protesters damaging equipment and posing a hazard to workers on the job.
Wisconsin is among the most recent states to take up some form of a law that opponents contend is aimed squarely at shutting down protests against controversial energy projects, from the Dakota Access Pipeline passing through the Standing Rock Reservation of Lakota Sioux in North and South Dakota to the 2018 rebuilding of an Enbridge oil pipeline in Northern Wisconsin.
While language differs from bill to bill, critics see a common ancestor: a model bill circulated by the American Legislative Exchange Council (ALEC) called the “Critical Infrastructure Protection Act.” ALEC, which defines itself as nonpartisan, is made up of mostly Republican lawmakers, including many from Wisconsin, as well as more than 100 corporations and nonprofits.
The ALEC model legislation, which the organization states was based on a pair of laws passed in Oklahoma in 2017, lists some 14 different kinds of industrial properties as “critical infrastructure,” at least eight of which are involved in oil, gas and other energy industries.
It prescribes criminal and civil penalties, including fines, jail or both, for people who trespass on such property, as well as for vandalizing or intent “to willfully damage, destroy, vandalize, deface, tamper with equipment, or impede or inhibit operations of the facility,” Another portion of the bill extends penalties to “any organization … found to be a conspirator” with people violating the law.
At least seven states have enacted recent laws ratcheting up penalties for trespassing or causing damage to pipelines or other “critical infrastructure,” according to the International Center for Not-For-Profit Law, which maintains a database tracking legislation that targets protest and related activity.
The ALEC model legislation doesn’t specify dollar amounts for fines or length of prison terms. Iowa was among several states that set fines as high as $100,000. In Wisconsin, the maximum fine would be $10,000; the maximum prison term would be six years.
In South Dakota, related legislation set penalties for so-called “riot boosters” accused of encouraging or supporting protests that authorities labeled “riots.” A federal judge in September blocked that part of the legislation.
Where unions said ‘no’
Jochum, the lobbyist for the Iowa Operating Engineers union, said the rewrite of the bill in his state didn’t satisfy his union clients who opposed it.
“We had concerns that this was going too far and would have a chilling effect — and it will have a chilling effect on legitimate forms of civil disobedience,” Jochum said. Even in the case of a project that might employ members of the union he lobbies for, “people have a right to protest,” he added. “That’s it in a nutshell.”
Despite the opposition, the Iowa measure was signed into law in the spring of 2018.
Eight months later and one state to the east, a somewhat different story played out.
Jennifer Walling, director of the Illinois Environmental Council, recalled being approached early in 2019 by a gasoline industry lobbyist about a new bill there ratcheting up the penalties for pipeline damage. The lobbyist, she told Wisconsin Examiner, described it as “something we should work together on.”
The lobbyist pitched support for the bill as a means of preventing environmental hazards, Walling said. “You don’t want pipelines to be damaged either,” is how she summarized his argument.
Researching similar legislation in other states, Walling and her organization quickly took a stand against the bill. She was particularly alarmed, she said, by an early draft that included similar “riot booster” language aimed at organizations that could be tied, however loosely, to individuals charged under the law.
“There were some provisions that would have held my organization or a similar nonprofit organization accountable if we associated with anybody who ended up committing a crime” under the act, Walling said. “It could be held back to my organization even if there was no proof that we had anything to do with it.”
Labor on both sides
Unlike the Iowa measure, however, the Illinois bill had union support from the Illinois AFL-CIO and the Laborers Union, Walling said.
The Illinois bill appears to have garnered union support because of language in which it stated that lawful strikes, picket lines and union organizing activity, along with lawful, peaceful protest, would not be punished. The Iowa bill lacked such direct language, although at the time it was debated advocates asserted it was not directed at peaceful demonstrations.
“We met with the AFL-CIO and the Laborers and asked them to withdraw support from the bill,” Walling said. She recalled telling the union representatives that “we should be in these things together — these are employers polluting the environment, and these are employers exploiting workers.”
Those union groups declined, however, and the measure passed the Illinois General Assembly relatively quickly.
When it reached the Senate, however, the coalition to stop the bill expanded — and it, too, included union groups. Among them were the Illinois Federation of Teachers, the Chicago Teachers Union, and the Service Employees International Union.
(Wisconsin Examiner calls to several union groups on both sides of the Illinois bill were not returned.)
By May, the opposition to the bill had reached a sufficiently critical mass that they were able to persuade the state Senate to table the bill for the rest of the legislature’s 2019 session, a move that essentially killed it.
Wisconsin law transformed
In Wisconsin, drafting materials for the state’s legislation show that in its earliest form the bill closely resembled the ALEC model legislation, particularly in enumerating the sorts of industrial sites that it would cover.
The drafting materials were obtained by Documented, a corporate watchdog group that posted them online. A link to the documents was previously published by the Center for Media and Democracy, based in Madison.
The early draft also included language holding liable a “person or entity that knowingly recruits, trains, aids, advises, hires, counsels, conspires with, or otherwise procures another for the purposes of trespassing or causing damage to property” covered under the law. That language was later dropped.
A subsequent early draft replaced the detailed list of applicable sites in the ALEC original with a series of summaries. By May, those passages were further simplified, replaced by an umbrella summary that applied the bill to facilities for “the production, transmission, delivery, or furnishing of heat, power, light, or water.”
Winning union backing
The Wisconsin bill’s earliest drafts included no reference to exceptions to the bill.
An email message to a Legislative Reference Bureau drafter for the legislation from an aide to state Rep. David Steffen (R-Green Bay) shows that sometime after May 2, language was added stipulating its penalties would not apply to people “monitoring compliance with public or worker safety laws, wage and hour requirements, or other statutory requirements”; people engaged in lawful picketing due to “a bona fide labor dispute” or in union organizing; or for “otherwise lawful” free speech or assembly.
The email message was one of several obtained by CMD in an open records request and shared with Wisconsin Examiner.
Steffen did not respond to several inquiries about the history of the bill’s drafting.
Terry McGowan, president and business manager for Wisconsin Operating Engineers Local 139, who testified in favor of the bill at a public hearing in September, declined an interview but released a statement to Wisconsin Examiner:
“I have certainly been a long-time supporter of laws and bills that improve workplace safety. And, given the recent experience of my members working on infrastructure projects I was supportive of the bill from early on,” McGowan stated.
“However, we must also be cautious not to infringe on the rights or free speech, peaceful protest, labor organizing and compliance monitoring. Section 9 of AB 426 is very similar to language used in other states and was certainly instrumental in gaining broad, bi-partisan support from legislators, industry and labor organizations.”
How strong are the protections?
Even with that language, environmental activists contend the bill would intimidate people from engaging, even in peaceful protest, for fear of being arrested and having to defend themselves in court.
“This kind of bill would discourage even further any scrutiny or monitoring of these situations by people who are not bent on any destruction of property, but simply want to see what’s going on, and that’s not a win for anybody,” said Peg Schaeffer of Midwest Environmental Advocates.
But Democrats who support the bill are looking to that same language as a defense for their position. An aide to one legislative Democrat who supports the bill observed that Republicans voting for it were, in essence, going on record in favor of ensuring union organizing rights.
On Oct. 2, just before she joined a unanimous vote that sent Assembly bill out of the Assembly Energy and Utilities committee and to the floor of the Assembly, state Rep. Beth Meyers (D-Bayfield), sought to explain her vote.
“I sympathize with those who oppose this bill,” Meyers said. “However, in the end, this bill addresses safety and safe, nonviolent protesters.”
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