What penalty should be paid by pipeline protestors who try to block construction?

  • Virginia Tech professor Emily Satterwhite locked herself to excavating equipment for 14 hours until state police finally used a blow torch to cut her free. A Montgomery County judge dismissed the criminal charge against her if she performed 200 hours of community service and stayed out of trouble for a year.
  • Two Roanoke County women — Theresa “Red” Terry and her daughter, Theresa Minor Terry — camped out in trees on their own property for more than a month. Both avoided potential jail time. Instead, a Roanoke County judge dismissed the charges, saying they had a “good faith” belief they could occupy trees on their own property.
  • Catherine “Fern” MacDougal, an environmental activist from Michigan, spent 11 days living in a small platform suspended by ropes from trees — effectively blocking a road through the Jefferson National Forest in Giles County that Mountain Valley Pipeline workers used to get to the\ construction zone. A federal judge sentenced her to two days in jail.
  • Danika R. Padilla — better known as “Nutty” — spent 57 days likewise blocking a construction access road in the national forest; she camped out on a different time of aerial platform. Federal prosecutors asked that she be sentenced to 30 days; instead a federal judge gave her 14 days.

We could go on — there have been other cases — but these are the most famous ones against anti-pipeline protesters in this part of the country. So far, that 14-day sentence against “Nutty” remains the most severe. The Trump administration, though, has different ideas. It proposes that that penalty for the types of anti-pipeline protests described above be up to 20 years in prison. While everybody was pre-occupied last week with whatever it was President Trump tweeted that morning, Transportation Secretary Elaine Chao asked Congress to make several changes to the laws governing her department’s Pipeline and Hazardous Materials Safety Administration. The most significant: To dramatically stiffen the penalties for those who try to interfere with pipelines.

There’s already a federal law against “knowingly and willfully damaging or destroying” natural gas pipelines and related facilities — that penalty is a prison sentence of up to 20 years. Or, if someone dies during the vandalism, a life sentence for the perpetrator.

The Trump administration wants to expand that definition from “damaging or destroying” to include “vandalizing, tampering with, impeding the operation of, disrupting the operation of, or inhibiting the operation of” a natural gas pipeline.

Let’s just state the obvious here: Someone who messes around with a natural gas pipeline risks a lot more than 20 years in prison — they risk getting blown to Kingdom Come. They’ll find no sympathy here. But expanding the definition to include “vandalizing” and “impeding the operation” and so forth opens a wide door. A kid with a can of spray paint can be a vandal. All those things are crimes and crimes should be punished, but are they really crimes that merit 20 years in prison? That’s not even the most interesting part of the proposed legislation. It’s this: The Trump administration wants to add two key words to the law: “Under construction.” As in, making sure this law applies to “a facility under construction.” In other words, all those anti-pipeline protesters mentioned above would have faced up to 20 years in prison — significantly more than the 200 hours of community service that Satterwhite got, or the 14 days that Pdilla got, or the two days that McDougal got or the outright dismissal that the Terrys got.

Now, let’s be realistic, a 20-year sentence is probably not what federal prosecutors would have sought in these recent cases — but under this proposed law, they could have.

Let’s also be realistic in another way: This proposal is not going to become law, at least as long as Democrats control the U.S. House of Representatives. Still, this proposal reflects two things – the escalation of anti-pipeline protests around the country that involve trying to physically impede construction, and the escalating desire of those on the other side to quash such protests before they become more widespread. The website Politico even cites the tree-sitters protesting the Mountain Valley Pipeline as part of the inspiration for the proposal.

Politico also reports: “’The proposed penalty is far and away more extreme than what we’ve seen at the state level,’ said Elly Page, attorney for International Center for Not-For-Profit Law, a nonprofit group that has tracked anti-protest bills through state legislatures. ‘When you combine provisions that vague to penalties that extreme, that creates uncertainty about what is and isn’t legal.’” Well, camping out in trees to block construction clearly is clearly illegal – unless maybe it’s your own land, but even that’s still unclear, if easements have been granted. However, is the threat of 20 years in prison really a proportionate punishment? Of course not, which is the point of the proposed law — to create a disproportionate deterrent to such protests. This raises some fundamental questions about the nature of law, and what is likely to happen when the punishment is so much more severe than the underlying crime.

The tree-sitters are engaging in a colorful — and illegal — form of protest. They gleefully embrace this as a way to impede construction of the pipelines that they see as a threat to the only planet we have to live on. Their concern about pumping even more carbon into the atmosphere may be correct — we now have the highest levels of carbon in human history — but their actions are ultimately futile. Sitting in a tree won’t stop the pipeline from being built. What will? Maybe nothing, since it’s been green-lighted by federal regulators and the state is not inclined to fight that. If the pipeline project collapses, it’ll be either because the courts rule against it or the underlying economics change. If the tree-sitters really want to help their cause, they’d be out raising money to pay for the lawyers — or buying stock in the pipeline companies to work against the project from within. Or working to elect politicians who will reform the whole system for approving pipelines —although that’s a long-term project that won’t stop this one in time.

Does sitting in a tree to block pipeline construction merit 20 years in prison? Of course not. But it shouldn’t merit adoration, either, not even from pipeline opponents, because ultimately it’s a distraction from things that might really make a difference.

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