By Andrew Graham, WyoFile.com
A trade association representing oil refineries and petrochemical manufacturers across the country brought the controversial critical infrastructure bill to Wyoming, said lobbyist Matt Micheli.
The American Fuel and Petrochemical Manufacturers, brought the bill to Micheli’s law firm Holland & Hart last year, Micheli told WyoFile. The law firm subsequently asked then-Sen. Leland Christensen (R-Alta) and other lawmakers to introduce it last year.
The measure sparked a fierce debate between industry advocates and tribal advocates and environmentalists. Some private landowners, including several legislators, joined the debate last year, saying its broad language might snare them inadvertently and saddle them with fines and criminal records. The debate is stretching now into its second year.
Both Holly Frontier and Sinclair Oil Company, which operate large refineries in Wyoming, are members of the association represented by Holland & Hart.
Micheli, a lobbyist, lawyer and former chairman of the Wyoming Republican Party, spoke to WyoFile following a committee hearing Monday morning. After taking lengthy testimony on many aspects of the issue, members of the House Minerals, Business and Economic Development Committee delayed voting on the measure until Friday.
A new year and a new bill has not led to many new arguments from either opponents worried about free speech and the right to protest or proponents worried about protecting fossil fuel production and other “critical infrastructure.”
Though bill sponsor Rep. Lloyd Larsen (R-Lander) argued that House Bill 10 – Crimes against critical infrastructure, had been reworked to eliminate the concerns of landowners, Rep. Aaron Clausen (R-Douglas) reiterated his concerns that it would give energy companies a legal cudgel in disputes with ranchers.
A private security contractor who worked at the protests of the Dakota Access Pipeline in 2017 told lawmakers Wyoming should pass the legislation if the state wants to avoid its own international protest incident.
Activists and community leaders from the Wind River Indian Reservation also testified in force against the bill. The testimony followed a Jan. 14 resolution from the Northern Arapaho Business Council opposing the bill. A resolution passed last week by the Wind River Inter-Tribal Council which is comprised of both Northern Arapaho and Eastern Shoshone tribal leaders did not directly oppose the bill but condemned threats to free speech and celebrated a history of Native American protest.
Micheli, along with John Brown, a lobbyist for the Wyoming Pipeline Association, raised a new wrinkle into the long-running debate. In October of last year, someone broke into a pipeline facility in Laramie County and turned a valve, the lobbyists said. The incident had not been reported publicly. Energy industry representatives said that was out of concern that publicity could inspire more crimes.
“This is a real thing, this isn’t some hypothetical” Micheli said, noting there have been similar problems elsewhere in the country. “In 2018 alone, there were 18 incidents like the one we had here in Wyoming.”
On Oct. 31, the pipeline company Suncor reported to the Laramie County Sheriff’s Department that a person or persons jumped a fence after trying and failing to get through a locked gate. The person or persons then cut through a chain to enable them to turn the valve on the pipeline, shutting it off, according to Undersheriff Rich Hillegas.
In the company’s pipeline control room, a technician noticed a rise in pressure upstream of the closed valve and shut down the rest of the pipeline, said John Brown with the Wyoming Pipeline Association. Had the pipeline not been shut down, the build up in pressure could potentially have caused the pipe to burst, Brown argued.
Brown compared it to more famous “valve-turner” incidents where activists shut down pipelines across the northern United States in October 2016. Those activists alerted pipeline companies before they turned the valves, and awaited arrests. They were seeking court trials where they could make a “necessity defense” that climate change necessitated immediate and urgent action.
Police don’t know what motivated the Laramie County incident. There are no suspects, Hillegas said, calling it an “open investigation.”
Micheli told the committee that even if caught, whoever turned the Suncor valve couldn’t be sufficiently punished. “Under our current laws there’s no real way even if we found that person to punish them,” Micheli said. “Because our trespass laws and property damage laws contemplate damage to the actual property — they just turned a valve. There’s no real harm to the property, but the economic harm could be in the millions of dollars.”
If they catch them, the sheriff’s department will charge the culprits with criminal trespass and destruction of property, Hillegas said.
Under existing Wyoming law, the destruction of property charge would be a misdemeanor if the damage done amounted to less than $1,000. Punishment for a misdemeanor includes up to six months in prison and up to a $750 fine. If the damage was $1,000 or more, the crime would be a felony, with a possible $10,000 fine and 10-year prison sentence.
Trespass is a misdemeanor, with up to six months in prison and a $750 fine.
Under the critical infrastructure bill, the punishment for “impeding” critical infrastructure is similar to existing punishments for destruction of property, but the fine for a misdemeanor is $1,000, not $750. The key difference, however, is the addition of the phrase “economic loss” to how damage would be calculated.
Impeding critical infrastructure becomes a felony with a 10-year jail sentence if damage or economic loss are greater than $1,000. Economic loss would be calculated using energy companies’ lost revenue.
House Bill 10 also creates a new crime “critical infrastructure trespass,” which is a misdemeanor with punishment of up to one year in jail and a $1,000 fine.
Though HB10 creates new ways to charge someone with trespassing on critical infrastructure, sheriff’s investigators are not without tools in current law. They determined that whoever turned the Suncor valve had committed criminal trespass because there was a posted sign indicating the area was private property, Hillegas said.
Suncor did not respond to a request for information on how much the October incident cost the company. Micheli called it “significant economic loss.” According to Brown, the pipeline was down for eight hours or more as technicians checked other valves to make sure there wasn’t additional interference. Brown works for the oil company Sinclair, which has two refineries in Wyoming. Those refineries have storage tanks of crude oil to keep them operating through a pipeline shutdown, he said. But, “eight hours is a long time … we would probably start throttling our refinery back.”
The company is aware of Holland & Hart’s efforts to pass the critical infrastructure bill, said Lisha Burnett, Suncor director of stakeholder relations.
“Any reasonable measures, including legislative priorities, which advance the safety and security of critical infrastructure, as well as the community, are very important to Suncor,” Suncor spokesman Michael Lawrence wrote in a statement. Suncor did not answer questions about the ultimate cost of the October 2018 incident or whether the company suspected it was done for activist reasons. “For reasons of security we are not providing details on the specific incident,” Lawrence wrote.
Brown compared the Suncor incident to those that occurred in Montana, Washington, North Dakota and Minnesota. “This is basically what happened except the guy didn’t call in,” Brown said.
Opponents of the bill criticized the energy advocates for only bringing the incident to light now. “I don’t know if anyone was protesting or what that may have been,” said Burnett Whiteplume, an employee of the Northern Arapaho Tribe.
Even Brown joked in a phone interview that in the light of the legislative fight, the October incident’s disclosure “is timely for the people in support of the bill.”
Larry Wolfe, a former Holland & Hart attorney and longtime energy lawyer, criticized proponents for overstating the growth of “valve turning” incidents. There were 7.6 million property crimes committed in 2017, according to FBI data. The 18 crimes committed represent an insignificant fraction of those crimes, Wolfe said.
“It’s so tiny that the Legislature shouldn’t be spending a minute on it,” Wolfe said. “Every business is in the business of managing risks. This is just one of the risks but a very, very tiny one that these businesses face.”
Energy companies should be “investing in fences and security and most importantly cybersecurity,” he said. “You’re not entitled yet nor will you likely ever be to come to the Legislature and ask for some broad sweeping statute to protect against instances that almost never occur.”
Also present at the meeting was a former North Dakota police officer, who had retired and started a private contracting company to serve the energy industry. Steve Lundin began his company, 10-Code LLC, because he saw a need for the energy industry to build enforcement beyond the state, he said.
“There was a big disparity between the needs and requirements of the energy sector in North Dakota and what law enforcement could provide,” Lundin said. His company worked on the Standing Rock Indian Reservation during the Dakota Access Pipeline protests, he told the committee.
If law enforcement had stronger legislation against protests at the start of that confrontation, they could have prevented it from growing into the international incident it became, Lundin said.
The protest began with “direct action and small protest actions,” Lundin said. “Those were two issues that our statutes in North Dakota were not designed to deal with in a situation like that so it went from a very small protest to a very, very large protest situation.”
Private security companies have been criticized for actions during the protests and questions have been raised by the investigate news outlet The Intercept about the melding of private security companies with state law enforcement. Lundin lobbied for a critical infrastructure measure in Oklahoma, which passed the legislation in 2017.
Lundin argued that clearer statutes benefit both protesters and the communities they operate in. “We have found that it is very successful in these situations where we acknowledge people’s constitutional rights to exhibit free speech and demonstrate,” he said. “But we give them parameters in which it will be acceptable in our communities to do that.”
When that is done, Lundin said, “folks are able to get their point of view across and engage … at both a local and at a national level but it’s also done legally and it reduces all of those impacts.”
Two bill opponents pushed back against the suggestion of better managed protests.
Tribal members protesting to protect their sovereignty aren’t interested in permitted protests, said Northern Arapaho Tribal Historic Preservation Officer Devin Oldman. “You want a lot of times to protest the problem where it exists,” he said, “so you can get your point across.”
The protests at Standing Rock focused attention on poor permitting practices by the United States Army Corps of Engineers, Oldman said.
Oldman’s comments echoed a Jan. 22 resolution passed by the Wind River Inter-Tribal Council. The resolution, which stopped short of opposing HB10, said the 1968 Indian Civil Rights Act gave Native Americans’ “the right to speak free from government infringement.”
It highlighted a history of Native American protest “in the struggle for sovereignty, dignity and justice.” The statement named events from Wounded Knee — without specifying between an 1890 massacre and a 1973 occupation by the American Indian Movement — to protests against the Keystone XL pipeline and the Dakota Access Pipeline.
Another opponent, Henry Sollitt of Teton County, argued in favor of civil disobedience. “I ask you all to think back to the action of the Boston Tea Party,” he said to lawmakers. “That was an action of civil disobedience. It certainly was considered illegal at the time. It was destruction of property. It was trespassing. It was vandalism. However, it was American citizens expressing their right.”
The bill targets civil disobedience but will not deter environmental terrorism or other illegal actions, the young man said.
WyoFile is an independent nonprofit news organization focused on Wyoming people, places and policy.