First Felony Arrests Near Bayou Bridge Construction Made Under New Louisiana Law Penalizing Pipeline Trespass

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Karen Savage, an award-winning investigative reporter, did not expect to be arrested as she covered Energy Transfer Partnersโ€™ controversial construction of the Bayou Bridge pipeline through Louisiana’s Atchafalaya Basin, a river swamp bigger than the Floridaย Everglades.

โ€œWe were on land that the pipeline company doesnโ€™t even claim to have,โ€ she said, adding that she had permission in writing from the property owner to be there. โ€œI didnโ€™t think there was really any risk atย all.โ€

Savage, a freelance reporter who teaches at the City University of New Yorkโ€™s graduate school of journalism, has previously covered the BP oil spill and environmental justice issues. Truthout describes her as โ€œembeddedโ€ with Lโ€™eau Est La Vie protest camp, which opposes theย pipeline.

She now faces โ€œcritical infrastructureโ€ trespass charges, as do over half a dozen others recently arrested near Bayou Bridge construction. These felony charges come under a newly minted Louisiana law modeled after โ€œcritical infrastructureโ€ lawsย in other states, which have beenย criticized asย efforts to criminalize oil and gas pipelineย protests.

Louisianaโ€™s first felony trespass arrests came on August 9, when three people kayaking through waters adjoining Bayou Bridge construction were charged under the new law, according to pipeline opponents who said the kayakers were paddling in public waterways. And three more people were arrested the same day as Savage, according to Truthout.

Early Monday morning, a Bayou Bridge activist who identifies as a โ€œwater protectorโ€ was tased and arrested after being forced from a โ€œskypod,โ€ a device similar to the tripods sometimes used in civil disobedience campaigns. That person was charged and held on $10,000 bail, according to a statement put out by localย activists.

Like many who opposed Energy Transfer Partnersโ€™ Dakota Access pipeline in North Dakota, Bayou Bridge opponents identify themselves as water protectors. Some of those opposed to Bayou Bridge have engaged in tree-sits as a form of civilย disobedience.

Trespassing Near ‘Criticalย Infrastructure’

Traditionally, trespass charges are relatively low-level crimes often punishable by little more than aย fine.

The law turning trespassing โ€” if itโ€™s near โ€œcritical infrastructureโ€ย or construction sites for critical infrastructure โ€” into a felony carrying a sentence of up to five years went into effect on August 1. It specifically amended the Louisiana criminal code to include oil and gas pipelines under the definition of โ€œcritical infrastructure,โ€ and, when originally proposed,*ย included โ€œconspiracyโ€ charges to enter or damage these sites with harsh penalties both in terms of prison time andย fines.

Energy Transfer Partners, the company building the Bayou Bridge pipeline, supported the bill elevating โ€œcritical infrastructureโ€ trespassing to a felony, a local ABC News affiliate reported in April.

Another ALEC Bill Nowย Law

The Louisiana law is similar to a bill pushed nationwide by theย American Legislative Exchange Council (ALEC), a corporate-funded bill mill whose members include oil and gas companies like Chesapeake Energy and Continental Resources. Energy Transfer Partners has twice supported ALECโ€™s annual conferences, according to Sourcewatch.

Part of the reason that trespass charges are rarely serious is that it can be a complex legal issue to sift out who exactly owns a piece of land, especially if ownership is disputed. The owners of land where Bayou Bridge construction is currently underway have said that the company never obtained an easement or seized their property through eminent domain, meaning that they believe the construction isย illegal.

Bayou Bridge opponents predicted that the bill would be used to target their campaigns โ€” particularly if thereโ€™s a risk of being arrested for a felony even when you reasonably believe you are notย trespassing.

โ€œClearly the purpose is to chill lawful dissent,โ€ New Orleans-based environmental activist Meg Logue told The Advocate inย April.

Other reports of police misconduct and the blurring of the lines between public officials and private security at Bayou Bridge sites drew a warning from lawyers from three prominent civil liberties organizations in lateย July.

Police stood by while company โ€œ[c]onstruction workers [used] chainsaws on the very trees these individuals are sitting in,โ€ William P. Quigley, law professor and director of the Loyola Law Clinic;ย Pam Spees, senior staff attorney at Center for Constitutional Rights;ย and Lauren Regan of the Civil Liberties Defense Center wrote in a July 28 letter to Louisianaโ€™s governor. โ€œWe also have reports that various state employees from the Department of Public Safety, Corrections, and Probation and Parole are working as private security in thisย matter.โ€

DeSmog has previously reported that legislatures in at least three other states have begun considering laws similar to ALECโ€™s model bill. So far this year, โ€œcritical infrastructureโ€ bills have passed either the state House or Senate in Iowa, Pennsylvania, Oklahoma, and Wyoming. Similar bills have also been introduced in states including Virginia, New York, Ohio, and Minnesota, and Colorado and Washington state have also considered relatedย measures.

*Update 8/24/18: Corrected to note that the final version of the law was amended to drop the conspiracyย charges.

Main image: Signs fromย Lโ€™eau Est La Vie protest campย in Louisiana. Credit: ยฉ2018 Julieย Dermansky

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Sharon Kelly is an attorney and investigative reporter based in Pennsylvania. She was previously a senior correspondent at The Capitol Forum and, prior to that, she reported for The New York Times, The Guardian, The Nation, Earth Island Journal, and a variety of other print and online publications.

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