The supporters of Senate Bill 471 say its intent is simple: protect “critical infrastructure” such as pipelines, refineries, and utility and natural gas facilities.
But the way the bill aims to do that — turning peaceful protests on private property into a felony — has critics insisting the bill is actually a cloaked attempt to chill free speech and assembly that is critical of the fossil fuel industry.
Similar bills, based on model legislation from the American Legislative Exchange Council, have popped up in eight states this year. Fifteen states in total have put forward “critical infrastructure” bills since 2016, and they have become law in a few.
Critics say these laws, supported by the fossil fuel industry, are a direct response to protests over plans to build fossil fuel infrastructure such as the Dakota Access Pipeline at Standing Rock.
Indiana’s bill is gaining momentum after passing out of the Senate and landing in the House. Lead author Sen. Eric Koch, R-Bedford, said that “state-level action” such as SB 471 is part of “the overall national strategy” to protect critical infrastructure.
Those in support of Indiana’s bill rebuke claims that it is an unconstitutional infringement on free speech and assembly. Rather, they say this type of legislation is necessary to “discourage acts of terrorism” against these types of structures.
“I think you want to be certain there is a deterrent, specifically to organizations that encourage behavior that is disruptive, or to have something that causes people to be frightened enough to change their behavior,” said House sponsor of the bill Rep. Ed Soliday, R-Valparaiso, who chairs the House Utilities Committee.
Indiana has laws that make it illegal to trespass, damage property, and commit acts of terrorism against “key facilities,” which largely overlap with what SB 471 defines as critical infrastructure.
Given those existing laws, it is not clear to Rep. Matt Pierce, D-Bloomington, what problem this bill is trying to solve. As the ranking minority member on Soliday’s Utilities committee, he said it raises suspicions on what the bill’s true intent is.
Dan Canon, a constitutional attorney and civil rights law professor, said he knows what the bill is designed to do: eliminate peaceful protest.
“The law operates in a way that chills speech even if no one is ever arrested,” Canon, a former congressional candidate from southern Indiana, told IndyStar. “That is a result which is unconstitutional and contrary to the bedrock principles of a free society.”
What SB 471 does
What the bill would essentially do is offer steep criminal penalties — steeper than those that already exist — for trespassing onto or damaging property deemed “critical infrastructure.” According to the bill’s definition, critical infrastructure primarily pertains to the oil and gas industry and includes pipelines, utility facilities, cell phone towers and more.
Trespass, previously a misdemeanor, would now be a Level 6 felony punishable with up to 2½ years in prison and a $10,000 fine. Property damage would become a Level 5 felony, punishable by up to six years and a $10,000 fine.
“On the surface, it sounds like a good thing to do and everyone wants to protect critical infrastructure, including us,” said Kerwin Olson, executive director of the Citizens Action Coalition, which advocates for Hoosier ratepayers on energy issues. “But those are actions people are already criminally liable for.”
That said, it is another section of the bill that critics say is most problematic. New language would make organizations or individuals liable and responsible — and subject to harsh fines and potential lawsuits — if someone at a protest they organize or even just participate in commits one of the above crimes. The fine for “conspirators,” as termed in the bill: $100,000.
Soliday said there needs to be some sort of evidence that the organization encouraged the behavior, adding that “If I misbehave and there is no evidence they’ve encouraged misbehavior, that’s not a reason to find they are guilty.”
But the question for organizations such as CAC, the Sierra Club and others is what counts as encouragement?
“Is it an organization that supports the same goals as the protester? A group that posts a Facebook event for a protest? The law doesn’t say,” he said. “It creates an open door to arrest anybody for anything, which is exactly what you want if you’re Goliath trying to crush David’s dissent.”
Infringing on First Amendment rights
The bill’s vagueness, coupled with its harsh penalties, has the International Center for Not-for-Profit Law worried that it will have exactly that effect.
“We have organizations that are saying they’re really concerned about this project, but they’re worried now they can’t be involved in protests because it’s too big of a risk,” ICNL legal advisor Elly Page said. “If laws are being passed that make people want to stay home and not get involved, it’s concerning for the future of our country.”
And not just for those advocating against a project for environmental protection regions. This type of legislation, Page said, could also potentially infringe on rights of property owners, such as farmers, that have infrastructure running through or near their property. If they are displeased with decisions about the infrastructure, this bill could affect their ability to express their concerns or distaste.
In essence, it is chilling a constitutionally protected right, according to Katie Blair, advocacy director for Indiana’s American Civil Liberties Union. Under the First Amendment, individuals have the right to free speech, peaceful assembly and of association.
“If they feel like the government is taking that away, if it’s slapping crazy fines on it and you can be arrested for something that someone else did, that’s going to make people second guess if they should go out and make their voices heard and let their government and community know they stand against something,” Blair told IndyStar.
“This bill, if passed,” she continued, “will change the way people think about protesting and if they’re going to protest at all.”
In fact, those who oppose the bill have nicknamed it the “Guilty by Association” bill.
“That’s why we have judges,” Soliday said in response to guilt by associations claims and to the vagueness around what counts as encouragement. “But this bill in no way says you can’t have a protest. It doesn’t infringe on freedom of assembly or freedom of speech. It doesn’t infringe on any of that.”
Koch said that he consulted with various groups, including the Indiana Building Trade Unions, Hoosier State Press Association and Indiana Prosecuting Attorneys Council — all of which, he said, “provided advice that helped shape the bill and ensure that First Amendment rights are protected.”
Same bill, other states
That hasn’t been the case in some other states, according to ICNL, where almost identical critical infrastructure bills have passed, including Louisiana and Oklahoma.
National groups working to fight such laws have said they intend to bring a lawsuit in Louisiana on a constitutional basis that this language infringes on constitutional rights.
Other statehouses across the nation considering bills similar to Indiana’s and Louisiana’s law include Illinois, Ohio and Missouri. The bill has been defeated in some states where it has been proposed in previous years. In fact, in two states — Wyoming and Minnesota — the model bills advanced to the desks of their respective governors, who vetoed the legislation.
Gov. Eric Holcomb declined to comment if he would veto Indiana’s bill if it arrived on his desk in a form similar to what it is today. He said only that he “is sharply focused on his legislative agenda and will monitor other legislation as it develops.”
SB 471 was voted out of Indiana’s Senate in February with a unanimous 49-0 vote, which Koch said indicates “strong bipartisan support.” Soliday said that he has not heard from any critics.
Yet one legislator who voted for the bill, Sen. J.D. Ford, D-Indianapolis, said he has recently become aware of some of the concerns surrounding the bill.
“The framing and argument is to protect critical infrastructure, so when you hear those words you say ‘yeah, I want to hear those things are protected,’” he said. “But you don’t want to mess with people having their first amendment rights.”
“A lot of the advocacy on this bill came too late,” he added. “But I think there is still time to raise the flags.”
The bill was referred on Thursday to the House Judiciary Committee. Pierce — who has serious concerns about what SB 471 is trying to do — said he has not yet heard much talk among representatives about this bill but imagines that might pick-up as it moves through committee.
‘Legislation purchased by companies’
One of his greatest concerns, Pierce said, is that this bill can be traced back to model legislation from ALEC, which receives financial backing from the oil and gas industry. Attempts to reach ALEC were unsuccessful.
“Certainly if it’s ALEC model legislation, that’s legislation purchased by companies,” he said. “You know then that you are only getting one side of a pitch and because money is involved, it makes things a little less policy driven.”
State utilities have significant ties to ALEC, as many were sponsors for its recent conferences. Those ties also exist in the legislature: A number of Indiana lawmakers are members of or have ties to the organization, including Koch.
Critical infrastructure bills of this sort first were seen in statehouses after 2016 following the mobilization at the Standing Rock reservation in North Dakota over the Dakota Access Pipeline.
In advance of ALEC’s December 2017 meeting, several industry companies — including Marathon Petroleum, American Fuel & Petrochemical Manufacturers, and the American Gas Association — all wrote a letter to Louisiana legislators, obtained and published by HuffPost. That letter informed them that ALEC’s Energy, Environment, and Agriculture Task Force would consider the model bill at the forthcoming meeting.
In the letter, it said: “In recent years, there has been a growing and disturbing trend of individuals and organizations attempting to disrupt the operation of critical infrastructure… Energy infrastructure is often targeted by environmental activists to raise awareness of climate change and other perceived environmental challenges. These activities, however, expose individuals, communities and the environment to unacceptable levels of risk and can cause millions of dollars in damage.”
While there are not projects of a similar scale to the Dakota Access Pipeline that have been proposed in Indiana to this point, Olson with CAC said it is within the realm of possibility to see such infrastructure in the state’s future with its location.
“Certainly I would see this as a ‘let’s get ahead of the game’ by industry anticipating future growth, future projects and development that often is moving in the opposite direction of what many people in this state and country want,” Olson said.
Some groups and individuals said that they expect that if SB 471 were to become law in Indiana, it would quickly be followed by a lawsuit in federal court.