A Dakota Access pipeline protest in Washington, D.C. in March 2017. Credit: Susan Melkisethian / Creative Commons

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Ohio lawmakers have tweaked a bill meant to deter damage from pipeline protests, but environmental groups, civil liberties advocates and other opponents still say the bill could be unconstitutional.

“From our perspective, it still has a whole lot of free speech problems,” said Gary Daniels, chief lobbyist for the American Civil Liberties Union of Ohio.

Substitute Senate Bill 250 would make it a crime to knowingly destroy or improperly tamper with a “critical infrastructure facility,” or to “otherwise knowingly impede or inhibit the facility’s operations.”

 In Daniels’ view, SB 250 “goes far beyond” any valid concerns about property damage or destruction “in order to limit and discourage otherwise peaceful demonstrations or the mere exercising of one’s First Amendment rights.”

He and more than two dozen other civil rights advocates, environmental group members, and citizens spoke out against the bill at the Ohio Senate Judiciary Committee’s meeting on Nov. 14.

Opponents fear that the bill’s vague terms and penalties would have a chilling effect upon people’s First Amendment rights to freedom of speech and assembly by criminalizing or imposing added liability for protests against natural gas fracking, drilling and pipelines.

Pipeline protest fears

SB 250 is among several bills introduced last year in several states in the wake of protests against the Dakota Access Pipeline.

“SB 250 seeks to discourage and frankly deter such activities by stepping up the penalties associated with certain types of wrongful acts,” Sen. Frank Hoagland, R-Mingo Junction, said in his sponsor testimony on the bill in March 2017.

Individuals would face third-degree felony charges under the current version of the bill. And any organization found “guilty of complicity” would face a fine of ten times the maximum that could be imposed on an individual for a felony of the third degree.

Hoagland testified that there were reports of alleged tampering with valves or controls at pipeline facilities, although he acknowledged there had not been any “dangerous or catastrophic events here in Ohio due to such unscrupulous and dangerous actions.”

Representatives of five organizations supporting the bill addressed the Senate Judiciary Committee in June. They included lawyer and lobbyist Rob Eshenbaugh of Capitol Advocates, on behalf of an unspecified coalition of companies and trade associations.

“Harmful actions like turning valves on a pipeline … put the public’s safety at risk,” Eshenbaugh testified. “Passage of this bill by this distinguished body will send a message to these outlaws that such threats and actions will not be tolerated in Ohio and that organizations willing to sponsor these activities will be held responsible.”

Constitutional concerns

SB 250 is “a solution looking for a problem” and “completely unnecessary,” Jen Miller, executive director of the League of Women Voters of Ohio, told lawmakers on Nov. 14. Individuals who trespass, damage property or commit other crimes already face criminal and civil liability under Ohio law.

“Singling out critical infrastructure for heightened protections is rooted in animus for pipeline protesters,” testified Sue Udry, executive director of Defending Rights & Dissent. “Passing laws rooted in animus toward disfavored political views has an inherently chilling effect on speech.”

Provisions that would impose liability on organizations present additional concerns. Besides any liability for any “complicity,” organizations could be vicariously liable for compensatory damages if they pay civil fines for anyone who damaged a covered facility.

“This is clearly meant to intimidate civil society groups who might otherwise support anti-pipeline protests,” Udry said. In her view, the result would be to “chill speech broadly and stifle political organizing.”

“This bill was created to impose fear upon citizens who have become increasingly aware and vocal about the threats to their health, and their well-being, as a result of the oil and gas industries’ assault on the land and people of this state by extraction of oil and gas, injection of toxic radioactive waste from this extraction and the infrastructure build-outs of pipelines and gas compressor stations,” testified Roxanne Groff, a board member of the Buckeye Environmental Network.

Opponents also say some of the bill’s terms are vague and overbroad.

“The law’s extensive list of ‘critical infrastructure’ facilities ranges from a petroleum refinery to a telephone pole,” said Teresa Mills, an environmental activist and organizer for the Buckeye Environmental Network.

Some compromises

As originally written, the bill would have treated “criminal mischief” as a first-degree felony. The current substitute bill would treat it as a third-degree felony. Among other things, that would reduce the maximum prison term for a conviction from 11 to three years.  

Earlier language in the bill also could have applied if drones flew over facilities. That language has been taken out.

Various organizations and citizen groups use remote-controlled vehicles or other aircrafts to monitor activities of drilling and pipeline companies. Photos from camera drones have helped the media report on events such as the Rover pipeline spills, noted Miller of the League of Women Voters of Ohio.

Language that would have applied to construction of drilling or pipeline projects is also now gone. That prohibition could arguably have applied if lawful protests from a group led to delay of an infrastructure project, Daniels had noted in his testimony for ACLU of Ohio.

Next steps

“It remains to be seen” whether the bill will pass this year, Daniels said.

SB 250 hasn’t been considered by the House yet, and usual procedures would call for three committee hearings on the bill before it was reported out for a full vote. That and other factors may make it unlikely that the bill would become a law during this legislative session.

“But, then again, because it’s lame duck, there could be a speeding up of the process” if lawmakers really had a will to push a bill through, Daniels noted. Although, he added, “I don’t think it’s the way anybody thinks we should be governing.”

Kathiann M. Kowalski

Kathi is the author of 25 books and more than 600 articles, and writes often on science and policy issues. In addition to her journalism career, Kathi is an alumna of Harvard Law School and has spent 15 years practicing law. She is a member of the Society of Environmental Journalists and the National Association of Science Writers. Kathi covers the state of Ohio.