‘Critical infrastructure,’ the ultimate zombie bill, must die

Can a coalition of Wyoming ranchers, conservationists and civil rights advocates keep the state from enacting a so-called “critical infrastructure” law at the expense of private property rights, the environment and free speech?

Let’s hope so. In 2018 it was the bill that barely died. In fact it died in committee, rose from the dead, passed both chambers, died a second time by veto and then very nearly pulled off another resurrection in the form of a veto override. Now Rep. Lloyd Larsen (R-Lander) has pre-filed a slightly revised version in the Wyoming House. The energy interests clamoring to criminalize protests of their projects are not going away in this state or any others.

The new House Bill 10 is straight from the right-wing playbook of the American Legislative Exchange Council, which backed new critical infrastructure laws in Oklahoma and Louisiana. Similar bills were also introduced by legislatures last year in Iowa, Pennsylvania, Virginia, New York, Ohio and Minnesota.

ALEC is funded in part by conservative mega-donors Charles and David Koch and their dark web of political action committees.

Make no mistake, this bill and its look-alike brethren seen elsewhere are a direct response to the 2016 protests at the Dakota Access Pipeline construction site at Standing Rock in North Dakota. As reported by the Sunlight Foundation, a national nonprofit organization that advocates for open government, such bills are part of wider efforts to suppress free speech on college campuses, hamstring labor unions backing striking teachers and chill other forms of public protests.

Last year’s Wyoming bill sailed through the Senate but was temporarily “killed” by the House Minerals Committee on a tie vote. Much to the opponents’ surprise and ire, Chairman Rep. Mike Greear (R-Worland) broke with standard legislative procedure and kept the vote open. Two members changed their minds the next day, forwarding the measure to the House floor.

A heavily amended version of the bill passed both chambers, but Gov. Matt Mead vetoed it, describing it as “flawed” and a poorly crafted piece of legislation. It was an incompetent cut-and-paste job from ALEC’s website — when it was filed nobody had even bothered to take protecting Wyoming’s nonexistent “seaports” out of the bill.

But instead of thrusting a dagger into the heart of the bloody thing, as he should have, the governor made the mistake of encouraging lawmakers to bring it back this year and improve it.

The Senate, last session, then overrode Mead’s veto but the House couldn’t muster the two-thirds vote to do likewise, so now we have HB 10. What can we expect?

An all-out attack by energy industry lobbyists to shove it down the throat of the people of Wyoming is what’s coming. They will claim the bill is solely about better protecting projects, plants, pipelines and other infrastructure critical to Wyoming’s economy from trespassing, vandalism and other “impediments.”

But Wyoming already has adequate laws on the books prohibiting such crimes. HB 10 doesn’t propose to actually protect anything. There are no new fencing requirements. No privately funded guards must be posted. Rather, the measure would only serve to enlist the awesome power of state law enforcement to the cause of private corporations. By drastically ramping up penalties over those for standard trespass or vandalism, the measure aims to intimidate organizations and individuals with financial and criminal ruin and thus achieve its backers primary aim — chilling free speech and opposition. It’s a whole lot easier to turn a profit, after all, if you have the power to throw dissenters in jail.

Last year’s bill, sponsored by Sen. Leland Christensen (R-Alta), initially would have fined an organization up to $1 million if it “aids, abets, solicits, compensates, hires, conspires with, commands or procures” anyone to impede critical infrastructure. By that measure, a group delivering food and blankets to miners on a picket line could be liable, and bankrupted.

The Legislature knocked the fine down to $100,000, still a high amount that might well convince even the harshest critics of energy projects to abandon a protest in the face of economic ruin. Especially since the bill would also give companies the right to file a civil suit against any organization “whether or not any fine is imposed.”

Individuals, meanwhile, could be charged with a felony carrying a penalty up to 10 years in jail for causing economic damage of $1,000 or more. That doesn’t have to be actual physical damage mind you. Delayed production and other economic impact would count toward the tally in the 2019 version. All these proposed punishments are outrageous. Let’s just call HB 10 what it is: The Fossil Fuel Industry Vigilante Act of 2019.

Moira Meltzer-Cohen of the Water Protector Legal Collective in North Dakota that has represented Standing Rock protesters pro bono told the Sunlight Foundation the reason behind such draconian fines and long prison sentences. “They are trying to bankrupt and punish what they perceive to be movement organizations,” she charged. “It makes it so risky to engage in protected speech that it will disincentivize people from doing so.”

Louisiana, which passed a critical infrastructure bill in 2018, made its first felony arrests under the law last August when protesters (and a journalist covering them) were rounded up at the Bayou Bridge pipeline project construction site and charged with trespassing.

Before the new law that offense was punishable by a small fine. But protesters were charged with a felony and now face up to five years in prison if convicted.

Is that the kind of “justice” we want enacted in Wyoming for peaceful protests? Are we willing to hand in our individual liberties in favor of corporate advantages?

HB 10 includes a section that says the bill doesn’t 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.”

But given the purpose of the bill — to severely punish anyone who “impedes critical infrastructure” under an exceptionally broad interpretation of that phrase — prosecutors will inevitably contend that the alleged crimes have nothing to do with protected speech or actions.

Passage is far from a foregone conclusion, however. Rep. Eric Barlow (R-Gillette), the new House majority floor leader, was the most vocal foe of last year’s bill, arguing that it would allow companies to run roughshod over the property rights of ranchers in their efforts to obtain minerals under their land. It was his impassioned plea to not override Mead’s veto that was the key to keeping the bill from becoming law.

In his new leadership position, Barlow controls the order of bills the House votes on. If he doesn’t think HB 10 addresses his concerns, he could push it to the back of the line, effectively making it disappear.

Barlow told WyoFile reporter Andrew Graham that he’s not impressed with the changes made to the pre-filed bill, calling it the “same song, different verse.”

“Some of my constituents are under siege by the very [type of laws] they’re asking for even more of,” Barlow 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?”

It never fails to amaze me that conservative state legislators always demand “Wyoming solutions” to problems and then back bills pushed by the likes of ALEC that have nothing to do with our state.

HB 10 deserves a quick death, one that energy lobbyists and the legislators they help elect won’t be able to resurrect this session. What’s good for the Koch Brothers isn’t what we need in Wyoming.

Kerry Drake is a veteran Wyoming journalist, and a contributor to WyoHistory.org. He also moderates the WyPols blog. He has more than 30 years experience at the Wyoming Eagle and Casper Star-Tribune as a reporter, editor and editorial writer. He lives in Casper.


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