How Big Oil is working to take away your 1st Amendment rights


Pretty soon, you won’t be able to walk down the street in my native Louisiana without tripping across an oil or natural gas pipeline. OK, so that’s a slight exaggeration, but after a decade of unending petrochemical growth fueled largely by the surge in fracking across the country, it seems that as soon as one pipeline is finished, a new one is announced.

Last week, the energy company Tellurian just asked regulators from the Federal Energy Regulatory Commission, or FERC, for accelerated permission to build a 625-mile, 42-inch natural gas pipeline that would extend from the Permian Basin, a highly productive field for shale gas in West Texas, to a site in southwest Louisiana.

The new project comes just a few months after work crews finished construction and turned on the spigots for the highly controversial Bayou Bridge Pipeline, the 163-mile final leg of a pipeline network that begins all the way up in North Dakota (with the Dakota Access pipeline, a project that inspired months of protests by Native Americans). That project cuts right through the heart of Louisiana’s 15,000-acre Atchafalaya Basin, the nation’s largest natural river swamp and a natural treasure — a route that infuriated environmentalists.

You can’t blame grassroots activists for fighting the sudden plethora of these projects. It’s not just that the pipeline routes frequently cut through wildlife preserves or areas that had long been the province of Louisiana’s once-prosperous fighting industry. The millions of barrels of fossil fuels that flow through these pipelines are also the lifeblood of “Cancer Alley,” the giant web of petrochemical plants that line the Mississippi River and have been linked to copious amounts of air and water pollution and the illnesses that they bring.

So it’s not surprising that the Bayou Bridge Pipeline sparked a number of protests, from peaceful marches to more dramatic acts of civil disobedience. Just over one year ago, in August 2018, three environmental protesters — two from California and one from Texas – paddled out onto Bayou Bee in canoes or kayaks to demonstrate against the project.

The three insist they were in navigable waters and not trespassing on private property. What happened next shocked them, however. They were met by a fleet of fan boats that were piloted by private security contractors and men they later learned worked for either the sheriff’s department in St. Martin Parish or even the Louisiana probation and parole agency. The security boats forced the three activists onto shore, where they were arrested, brought to the parish jail, and hit with an array of charges, including a felony count of interfering with critical infrastructure.

The protesters can’t be faulted if they didn’t know about the felony law – because it turned out it had only been on the books for nine days. And its enactment by the Louisiana Legislature and Gov. John Bel Edwards was no coincidence.

This summer, The Intercept website reported that a powerful lobbyist for the American Fuel & Petrochemical Manufacturers (AFPM), an industry group that includes oil giants like Koch Industries, Chevron and Exxon-Mobil, bragged about the work he was doing behind the scenes to get state lawmakers to pass virtually identical bills criminalizing pipeline protests.

“We’ve seen a lot of success at the state level, particularly starting with Oklahoma in 2017,” said Derrick Morgan, the group’s vice president said, in comments that were captured on tape. He said the concerted effort began as a response to the Dakota Access pipeline protests in late 2016, which apparently spooked Big Oil. “We’re up to nine states that have passed laws that are substantially close to the model policy that you have in your packet.”

Louisiana is one of those states cited by the oil-and-gas lobby, and more than a dozen other states are debating legislation like a bill recently signed into law in Texas that mandates penalties as long as 10 years in prison for protesting pipelines or similar projects. The bills — which are remarkably similar from state to state — have the effect of treating peaceful protesters like the Louisiana rowers as if they were violent criminals.

Now, the Louisiana statute is facing a legal challenge from the three 2018 arrestees, who were never prosecuted but who say that their arrest and subsequent detainment was a violation of their 1st Amendment rights.

“Bayou Bridge Pipeline used Louisiana law and Louisiana law enforcement officers as tools to suppress peaceful protests on open waters,” their attorney Eric Foley said. “We intend to hold them accountable for their attack on our clients and their plan to silence the voices of these water protectors.”

I certainly hope justice prevails in this matter and the new law is overturned. Of course, protesters should be governed by the same laws as everyone else. But creating a special kind of crime at the request of powerful oil lobbyists and throwing the book at peaceful protesters feels like something that was ripped from the pages of George Orwell’s 1984. It’s a sad day for Louisiana when the dollars of Big Oil can stifle free speech.

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Stuart H. Smith is an attorney based in New Orleans fighting major oil companies and other polluters.
Cooper Law Firm

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