‘Critical infrastructure’ bill resurfaces


By Andrew Graham, WyoFile.com

A Lander lawmaker has again introduced the controversial critical infrastructure protection bill from the 2018 legislative session, which opponents said was designed to criminalize protest against the fossil fuel industry.

Rep. Lloyd Larsen (R-Lander) is lead sponsor on a new iteration of the bill, which died in the waning hours of the 2018 Legislative session when the Wyoming House rejected the Senate’s attempts to override Gov. Matt Mead’s veto.

The new bill offers modest changes to the previous version — mostly cleaning up language after hectic attempts to make the bill workable last session. A flurry of amendments on the House floor in the session’s waning hours made it difficult for Legislators to keep track of what was and wasn’t in the measure, Larsen said. Last year, “there were a lot of people scratching their heads and kind of saying ‘where are we at now?’” he said.

Like the first version, Larsen’s House Bill 10 would create new crimes for people who impede, or trespass with the intent to impede, “critical infrastructure.” The bill defines critical infrastructure with a long list of types of facilities related to Wyoming’s key industries.

Brought in various states following the Standing Rock pipeline protests in North Dakota, the legislation seeks to protect industry from protest that could stop progress on construction projects and block or damage infrastructure. The legislation would create additional penalties beyond existing vandalism or trespass statutes in order to dissuade would-be saboteurs and allow companies to recover their economic losses through lawsuits.

Last year, opponents worried the bill would have far-reaching effects that would chill free speech and activist organizations by making them liable for damage caused by unruly protesters. Native American advocates opposed the measure, saying it was written to quell the next version of the Standing Rock protests, which dialed up activism around tribal sovereignty. It also concerned ranchers who feared it would give energy companies a leg up in disputes over land access or pipeline infrastructure on their properties.

Ultimately, Mead vetoed the bill and lawmakers failed to override him. Mead called it poorly constructed but suggested lawmakers take a further look at the issue. The Legislature’s Management Council, which sets topics for committee study between legislative sessions, voted 7-6 not to include protecting critical infrastructure on its list of priorities.

Instead, Larsen has tried to rework the bill to address concerns, he said.

“I think I had to be wise enough to understand that I was going to have to be fairly judicious in how I approached it,” Larsen said. “Because I just really feel that the bill has merit.”

The new bill keeps similar thresholds for penalties: an act of impeding critical infrastructure that causes damage of less than $1,000 is a misdemeanor, and more than $1,000 worth of damage is a felony. But it added “economic loss” to damage calculations. So a protest that blocked a pipeline construction project and cost a pipeline company more than $1,000 could be prosecuted as a felony even with less than $1,000 of physical damage.

The fine for an organization that “aids, abets, solicits, compensates, hires, conspires with, commands or procures” someone to impede critical infrastructure would be $100,000. That’s where the penalty stood at the end of the last session — down from the $1 million fine the bill originally threatened. The new bill also specifies that to be guilty an organization has to act “with the intent” of impeding critical infrastructure.

Larsen hoped that would alleviate concerns that, for example, someone who provided blankets or food to protesters out of sympathy could be prosecuted for aiding and abetting the protesters’ cause.

Environmental activists, tribal-sovereignty advocates, labor leaders and others who see protest as a vital mechanism of opposing industrial activity fear the critical infrastructure bill would criminalize dissent.

The critical infrastructure bill originated from the American Legislative Exchange Council, a national industry- and corporate-friendly think tank. The organization posts model bills on its website that often turn up in state legislatures.

Larsen has heard the right-to-protest worries from his own constituents in the conservation-minded town of Lander, he said, but finds the constitutional concerns misplaced.

“There is a segment of our population that gets real nervous at this bill thinking that the intent really is to somehow covertly stifle their rights to exercise free speech,” Larsen said. “People will only believe what they want to believe but that’s not where I’m coming from with this.” If an infrastructure project is correctly permitted, he said, “we shouldn’t be able to impede the ability for it to continue to operate under a legal basis.”

Though existing statutes penalize trespass and vandalism, Larsen said this bill goes further by specifying “impeding” as a crime. Protesters that block a road to a critical infrastructure facility, for example, would be guilty under the proposed law.

Larsen’s bill contains a refined version of a clause that was inserted late last session in response to free-speech concerns: “Nothing in this section shall be construed to apply to public demonstrations or other expressions of free speech or free association to the extent that such activity is protected under the United States or Wyoming constitutions.”

Opponents derided that language in the past, saying it amounted to lip service.

Larsen owns a company that works on pipelines and installs and constructs “a lot of the critical infrastructure related to the petroleum industry,” he said. He feels a need to protect that type of infrastructure in the face of an increased threat of interference from activists, he said.

“We’ve had some real concerns and fears about the impacts of these actions,” Larsen said.

The bill doesn’t directly benefit Larsen’s bottom line, he said, and so he does not see a conflict of interest in sponsoring the legislation. In Wyoming’s citizen legislature, “I think you would say then ‘should educators who serve in the Legislature be voting on [education funding]?’” he said. “‘Should those people involved in tourism be able to vote on the proposed lodging tax?’ We always have some of those questions and they’re fair questions.”

Larsen also tweaked the bill to better address concerns from ranchers worried they could commit a crime if they interfered with energy infrastructure on their property, he said. Rancher legislators proved to be powerful opponents of last session’s effort in the House.

The bill specifies that a person is not guilty of impeding critical infrastructure if the action takes place on their own property. It also includes a new clause to ensure regulators for state or federal agencies couldn’t be accused of trespass under the law, or of “impeding” if their work costs a company money.

Larsen also noted that language about impeding infrastructure during a “bona fide dispute” over land access would not count under the new crime. For example, a rancher who closed off a road in a scrap with his neighbor over who it belonged to wouldn’t lose out if the neighbor was an energy company.

But several previous opponents said the new bill failed to assuage their concerns.

“While there are some positive changes over the last bill,” said Joyce Evans, a Carbon County rancher and chairwoman of the Powder River Basin Resource Council, “this is still not friendly to landowners, especially family farmers and ranchers. It represents the interests of large companies at the expense of the individuals of Wyoming.”

Rep. Eric Barlow (R-Gillette), who opposed the bill on the House floor last year, said his concerns remain as well. “I’m thankful they took out seaports,” he joked, referring to the original inclusion of ports in the list of landlocked Wyoming’s critical infrastructure.

“Same song, different verse,” he said. “There are new things that are introduced in here and it gets to what they’re trying to get to and that’s ‘economic loss.’”

Barlow continues to worry the bill would give energy companies a legal “cudgel” in the frequent disputes between ranchers and the companies seeking access to minerals under their land. Barlow, of Campbell County, is familiar with such disputes and said they are a concern for his neighbors.

“Some of my constituents are under siege by the very [type of laws] they’re asking for even more of,” he said. “And honestly what is the problem we’re trying to fix? What’s the evidence that there is an impending problem that requires … enhanced penalties for things that are already on the books?

Larsen’s new bill replaces seaports with commercial airports on the list of infrastructure defined as critical by the bill. The lengthy list, which saw additions from various industry lobbies last legislative session, captures the facilities of most industrial endeavors in Wyoming. As defined by the bill, critical infrastructure ranges from the computer data centers sprouting up outside Cheyenne to the reservoirs that dot the state’s landscape and supply water for industrial use, municipalities and irrigation. All manner of energy infrastructure is on the list.

The Legislature’s last battle over the critical infrastructure bill was one of the fiercest, and strangest, of the 2018 session.

Brought by Sen. Leland Christensen (R-Alta), who is leaving the Legislature this year, the bill was pushed by a lobbyist for the prominent Cheyenne law firm Holland & Hart. The firm represents many energy companies. Industry, law enforcement and associations of Wyoming municipalities and county commissioners all backed the bill.

The bill had particularly strong backing in the Senate — to the point that Christensen and other senators often sat in on the House floor during debate on the legislation there. But after soaring through the Senate largely untouched, the bill found opposition in the House. At one point, the House Minerals Committee voted it down. But as bill opponents celebrated, the committee chairman kept the vote open and pushed for a revote, where proponents resurrected the bill. The controversial maneuver required a vote by the House Rules Committee to proceed and raised public ire.

After heavy amendments, the bill narrowly passed the House. Mead vetoed it and called the bill too poorly crafted to become law. Though the Senate overrode his veto without discussion, the House ultimately chose not to. Eleven House members who had voted to pass the bill refused to vote for a veto override, ending its wild ride.

In March, Mead compared the critical infrastructure bill to the Legislature’s last controversial attempt to create enhanced penalties for certain trespassing crimes — the data trespass laws passed in 2015 and amended in 2016. The statutes were then still tied up in court, as environmental groups and a press organization challenged their constitutionality.

(WyoFile reporter Angus M. Thuermer Jr. was a witness in the lawsuit).

“I think [the data trespass law] was put out there with good intentions,” Mead said in March. “But because it had some obvious legal problems in it you see what happened. And then … at the end of the day, have we advanced a cause or have we hurt it by not putting out good legislation?”

The statutes, passed by the Legislature in 2015 and amended in 2016, made illegal and enforced steep penalties for the collection of research data, photographs and other information from private lands and from public lands if private lands had been crossed to reach data-gathering sites.

In late October, a District Court of Wyoming rebuked the Legislature for trying to chill activities it disagreed with — in this case research on land and water use — through enhancing trespass statutes.

“There is simply no plausible reason for the specific curtailment of speech in the statutes beyond a clear attempt to punish individuals for engaging in protected speech that at least some find unpleasant,” Judge Scott Skavdahl wrote in his decision, which struck down part of the statutes.

Mead and Attorney General Peter Michael did not appeal Skavdahl’s ruling.

Barlow wondered if that ruling had a lesson for lawmakers, he said. “What bearing does that have on this” push to create enhanced penalties for interfering with critical infrastructure.