Environmental activists, indigenous protesters, landowners and others who damage or “impair or interrupt” operations of oil and gas facilities will be charged with a felony under a bill finalized and approved by the Texas Legislature this week. That’s despite public pressure, protests and legislative attempts to soften penalties in the industry-backed bill, which now heads to Governor Greg Abbott’s desk, where it is expected to become law.
If Abbott doesn’t veto House Bill 3557, the measure will criminalize damage to so-called critical infrastructure facilities, including oil and gas facilities that are under construction, with a third-degree felony, which carries a penalty of up to 10 years in prison. Violators who “impair or interrupt” operations or who entered property with the intent to damage it will face a state jail felony, punishable by up to two years in prison.
The legislation could make environmental groups’ fight against the 650-mile Jupiter oil pipeline and Kinder Morgan’s 430-mile Permian Highway gas pipeline more difficult. Both pipelines would carry fossil fuels from one of the nation’s largest oil patches in West Texas’ Permian Basin to the Gulf Coast.
“HB 3557 is a fear tactic to dissuade environmental justice movements like Standing Rock from challenging the continued use of fossil fuels. We are at a tipping point as our ecosystems decline at accelerated rates, and instead of protecting our environment, we are protecting big oil and pipelines,” said Jennifer K. Falcon, campaign manager for the Society of Native Nations, in a press release, adding that she believes the measure is a violation of the First Amendment.
The bill uses a previous state definition of critical infrastructure that includes electric power and water treatment facilities, chemical plants, ports, concentrated animal feeding operations (CAFOs), telecommunication services and transmission facilities used by TV and radio stations. The legislation adds to the list oil and gas pipelines and any construction equipment on the property.
The penalties prescribed in the bill started out even higher and, at one point in the legislative process, punishment for impairing or interrupting operations had fallen to a misdemeanor. But they were ultimately elevated back to a felony — a priority for the industry, which has pushed similar model legislation in several other states in response to widespread pipeline protests. Last week, environmental and civil liberties groups filed suit on behalf of landowners and activists in Louisiana alleging that the state’s anti-pipeline protest law is unconstitutional, and advocates in Texas say they are closely monitoring the lawsuit.
As the Observer previously reported, an early version of HB 3557, by state Representative Chris Paddie, R-Marshall, would have punished activists who damage or interfere with critical infrastructure with a second-degree felony, carrying penalties of up to 20 years in prison. Those penalties were lowered on the House floor: Damaging such facilities was lowered to a third-degree felony (up to 10 years in prison), and interfering with operations was lowered to a state jail felony (up to two years in prison). The revised measure passed the House in early May on a 90-51 vote.
As the bill gained more attention and public pressure grew, senators attempted to soften the bill further once it reached the upper chamber. An initially successful amendment by Senator Juan Hinojosa, D-McAllen, lowered the penalty for “impairing or interrupting” operations to a Class A misdemeanor. That version passed the Senate on May 20 on a 25-6 vote.
But Paddie, the bill’s author, rejected the Senate version’s lowered penalties in the waning days of the session, and a conference committee convened to hash out the details. Ultimately, Paddie won out, ratcheting most of the penalties back up to their current felony levels, which are slightly lower than those he originally proposed.
Robin Schneider, director of the Texas Campaign for the Environment, said the relative watering down of the bill is a result of a coalition of opponents mobilizing to testify against the bill during a public hearing on May 15. She said her organization alone facilitated messages from at least 1,300 constituents to their representatives in opposition to HB 3557. A group of indigenous activists chanted and dropped a banner from the House gallery reading “Kill the bill, save our land. Protectors are not criminals,” during a vote on the bill on May 7. Such engagement was crucial in pressuring the bill’s sponsors to ultimately decrease its criminal penalties from second- and third-degree felonies, she said.
The biggest win for opponents in the final version of the bill is a provision that charges people who enter facilities “with the intent to impair or interrupt the operation” with a Class A misdemeanor, significantly lower than the original version. Even so, advocates say that the “intent” distinction could ultimately prove meaningless because the line between interrupting operations and acting with the intent to interrupt operations is blurry.
Senator Brian Birdwell, R-Granbury, the bill’s upper chamber sponsor, seemed initially receptive to concerns about the bill from landowners, free-speech advocates and conservative advocates of criminal punishment reform. He worked with Hinojosa to draw up the Senate floor amendment that dropped impairing or interrupting operations to a misdemeanor.
On the Senate floor on Sunday, Birdwell suggested the criminal penalties in the bill will ultimately be left to prosecutorial discretion. “These offenses, the penalties are ceilings, not floors,” Birdwell said before supporting the final version. “We defer to the prosecutorial discretion of the district attorneys that would be involved in the state jail felony cases, as well as the merits of the case being brought before the district judge, and then the county judge, for the misdemeanor elements of the intent to disrupt.”
Neither Paddie, Birdwell nor Hinojosa’s offices immediately responded to a request for comment.
“It’s a big disappointment that none of the [Democratic] senators had the courage to do a filibuster on this bill, and kill the bill,” Schneider told the Observer. “There were any number of delay tactics they could have [been] engaged in throughout the day, and we just had no leadership.”
Any lawmaker who single-handedly derailed the measure would have become a prime target of the powerful fossil fuel industry, perhaps the only deterrent necessary in a state that relies heavily on revenue from oil.
“We basically were trying to do the next-to-impossible, which was to beat the Texas Oil and Gas Association and all the other corporate interests here at the Texas Capitol, which is dominated and virtually controlled by [them],” Schneider said.