Charleston – The West Virginia House of Delegates passed a bill on Thursday that is modeled after legislation in other states aimed at pipeline protesters.
The legislation would increase penalties for people who engage in acts of civil disobedience in response to industrial activity.
House Bill 4615, called the "Critical infrastructure Protection Act" and sponsored by Delegate John Kelly, R-Wood, states that any person who "willfully and knowingly" trespasses on property contacting a "critical infrastructure" facility, shall be guilty of a misdemeanor and punished by a fine of not less than $250 nor more than $1,000, or confined in jail not less than 30 days nor more than one year, or both fined and confined.
If protesters intend to "willfully damage, destroy, vandalize, deface, tamper with equipment, or impede or inhibit operations of the critical infrastructure facility," they are guilty of a felony and could be fined not less than $500 nor more than $3,000, or imprisoned in a state correctional facility for not less than one nor more than three years, or both fined and imprisoned.
The bill also states that any person who "willfully damages, destroys, vandalizes, defaces or tampers with equipment in a critical infrastructure facility" is guilty of a felony and maybe fined not less than $1,000 nor more than $5,000, or imprisoned in a state correctional facility for a term of not less than one year nor more than five years, or both fined and imprisoned.
Oklahoma was the first state to pass a similar version of the bill, after activists said they planned to protest a pipeline slated to cross tribal land. The American Legislative Exchange Council, a group of lawmakers and representatives of corporations, then turned the bill into model legislation for other states to follow.
The bill has been amended several times. Originally, most of the facilities that were categorized as "critical infrastructure" were related to oil and gas. The bill has since been amended to also include military facilities, Department of Highways facilities, and health care facilities.
Previous versions of West Virginia's bill had no upper limit on fines.
The bill also now includes provisions protecting "picketing at the workplace that is otherwise lawful and arises out of a bona fide labor dispute" and the "right to free speech or assembly, including, but not limited to, protesting and picketing."
Del. John Shott, R-Mercer, said the bill is an effort to dissuade people "from going upon those types of infrastructures with the idea of creating either disruption or damage" but that Republicans "don't want to chill free speech."
"If you're standing on property on which you have the right to be, or on public property on which you have the right to be, you can yell and holler and carry on all you want," he said.
On the House floor Thursday, several Democrats, though, argued that the bill takes aim at a form of protesting that is not lawful – civil disobedience, or the refusal to comply with certain laws as a form of protest.
Del. Mike Pushkin, D-Kanawha, said that some people who engage in civil disobedience "feel that they're underrepresented up here, and they feel helpless and hopeless and powerless because some of their elected representatives listen more to the loud voices of the paid industry lobbyists than they do to the people who might be living on the land that this pipeline's going through."
He noted that Thursday was the anniversary of the labor leader Mother Jones getting arrested in Charleston – "for agitating striking miners during the deadly Paint Creek-Cabin Creek Strike," according to the WV Encyclopedia.
"While we might be mad at the folks that are temporarily blocking construction of a gas pipeline that is so important to some of the lobbyists with the loudest voices here that represent the oil and gas industry, that are so generous to some of our campaigns, while it might be so important to them, let's face it, the people that are blocking that progress, we might be mad at them but are we really afraid of them?" Pushkin said. "Because there's provisions in this bill that would put some of them in prison and severely fine organizations that they're remotely connected with."
The bill also includes a provision that states any person or organization who "conspires with any person or organization to commit the offense of trespass against a critical infrastructure facility" is guilty of a misdemeanor and may be fined in an amount of not less than $2,500 nor more than $10,000. It also states that any person or organization who "conspires with any person or organization to willfully damage, destroy, vandalize, deface or tamper with equipment in a critical infrastructure facility" is guilty of a felony and may be fined not less than $5,000 nor more than $20,000.
Pushkin said that provision is "going after organizations that seek to protect our air, our land, our property rights."
"You would think from the other side that we somehow deliberately pass unjust laws in this nation," Delegate Tom Bibby, R- Berkeley responded, noting that the nation has a system of checks and balances. "Let me remind people, this is the most free nation (on) the face of the earth in the history of time."
Del. Mike Caputo, D-Marion, said he was reminded of the Kentucky coal miners that, due to a bankruptcy, didn't get paid and decided to protest on train tracks, blocking the shipment of coal from leaving town.
"I've been engaged in lots of acts of nonviolent civil disobedience throughout my career," he said. "I've been arrested and handcuffed so many times I lost count. I'm not ashamed of that. It was always for a cause, when Peabody Coal and Patriot Coal and Arch Coal tried to take the healthcare promise away from coal miners and we blocked the entrances to their buildings, we were arrested, we were processed, and we were taken to jail. And we went back next week, and we did it again, and we went back the next week, and we did it again, and again, and again. Hell I had scars around my wrists I had so many handcuffs on me at the same time.
"But you know what at the end of the day, we were on the side of right and those coal miners and those widows who were promised lifetime healthcare, we won the day because we had to show the world in a very peaceful way that we were being wronged."
In an interview, local Del. Jeff Pack, R-Raleigh, said his experience as a coal miner didn't factor into his decision. Pack said he voted yes because the bill provides a disincentive for destruction of property. His district also includes parts of Summers and Monroe counties, counties where pipeline activity and protests have taken place.
"We're not talking about people standing out with signs," Pack said. "We're talking about destruction of property. That exceeds one's First Amendment right to protest. That was the compelling argument that I found. It wasn't merely that protest needs to be squashed out, not at all."
The bill also increases penalties for trespassing, not just destruction of property.
Del. Roy Cooper, R- Summers, didn't return a call Thursday. He voted for the bill. Summers County is in the route of the in-construction Mountain Valley Pipeline,
Also locally, delegates Brandon Steele, R-Raleigh; Tom Fast, R-Fayette; Kayla Kessinger, R-Fayette; and Tony Paynter, R-Wyoming, voted for the bill.
Delegates Mick Bates, D-Raleigh; Jeff Campbell, D-Greenbrier; Cindy Lavender-Bowe, D-Greenbrier; and Margaret Staggers, D-Fayette, voted against it.
Karan Ireland, lead lobbyist for the West Virginia Environmental Council, noted that the bill could "criminalize organizations that give aid or help organizers." She added that it could affect private land-owners who are disputing pipeline construction on their property.
"The timing of the first draft of this legislation, right on the heels of the protests at Standing Rock, and the subsequent arrests of protesters in places like Louisiana, make it clear that this legislation is really about protecting the interest of the oil and gas industry," she said. "But 'critical infrastructure' sounds nice."
The bill passed with largely Republican support and largely Democratic opposition. Several delegates switched sides, including House Minority Leader Tim Miler, D- Harrison, who voted with the Republicans. To become law, the bill still needs to pass the state Senate.
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