Academic journal article American University Law Review

Coming Down the Pipeline: First Amendment Challenges to State-Level "Critical Infrastructure" Trespass Laws

Academic journal article American University Law Review

Coming Down the Pipeline: First Amendment Challenges to State-Level "Critical Infrastructure" Trespass Laws

Article excerpt


In late summer 2018, two sets of trespassing charges were filed in southern Louisiana in connection with the Bayou Bridge pipeline, a project stretching across sections of Louisiana's ecologically sensitive (and crawfish-rich) Atchafalaya Basin. The first charges were filed against pipeline protesters, who had been arrested after being detained by private security for the company funding the pipeline, Energy Transfer Partners.1 The rest of the charges were filed against the pipeline company itself, which had moved construction crews onto private property against the express wishes of landowners, proceeding to cut down trees and tear up land without a clear legal right to be there.2

Just two weeks earlier, Louisiana's legislature passed a new law that heightened protections for "critical infrastructure"-a category lawmakers deliberately expanded beyond its definition at the time (which included sites such as water treatment facilities and power stations) to include pipeline construction sites and any land containing equipment or materials being used to construct a pipeline.3 Similar critical infrastructure trespass bills have been cropping up in state legislatures around the country since early 2017,4 following the widely covered clashes between demonstrators and law enforcement in Cannon Ball, North Dakota, along the construction route of the Dakota Access pipeline.5 The Louisiana state legislature successfully passed its critical infrastructure trespass law in 2018, approximately one year after Oklahoma passed the first.6 At least a half dozen other states have drafted similar bills, and several have put these bills to a vote.7

Because of Louisiana's new law, the protesters arrested in early september faced potential felony charges for the alleged crime of trespassing on a pipeline easement-land upon which, mere weeks earlier, trespassers would have faced at most a misdemeanor charge.8 Meanwhile, for Energy Transfer Partners' acts of trespass, a Louisiana judge granted the company rights to the land and required them to pay just $150 to each landowner whose property construction crews occupied and damaged.9

This Comment will argue that critical infrastructure trespass laws are unconstitutionally vague and overbroad, implicating an uncertain but undeniably vast amount of both public and private lands where protected expression can and should be able to occur. The provisions in these laws targeting "conspirator" groups additionally violate individuals' and organizations' First Amendment rights to free speech and free association. These statutes' vagueness and their outsized penalties risk criminalizing protected speech and thus have an unconstitutional chilling effect on the legitimate exercise of free speech and free association by individuals and groups organizing to protest fossil fuel infrastructure development. Part I will discuss the events that inspired the wave of antiprotest legislation that included the first critical infrastructure trespass bills, the central components of these bills, and key First Amendment issues that these laws raise. Part II will analyze the strongest potential First Amendment challenges to critical infrastructure trespass laws and argue that critical infrastructure trespass bills are unconstitutionally overbroad and vague. Finally, the Conclusion explores whether existing First Amendment jurisprudence goes far enough in protecting free speech rights in the context of civil disobedience, or whether courts' reluctance to scrutinize facially neutral, conduct-oriented laws under the First Amendment creates opportunities for legislative abuse.

I. Background

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