The past five years have been a watershed moment for protest and organizing in the U.S. High-profile grassroots campaigns against pipelines, in defense of Black lives, and for a transition to sustainable energy production and use have shaped and molded policy—but not always as intended. A legislative backlash has followed each wave of grassroots powers, often in the form of anti-protest laws that criminalize protest actions like marching on highways and obstructing oil pipeline construction.
Marketed as laws that guard “critical infrastructure”—pipelines, natural gas refineries, construction sites associated with pipelines—against obstruction from protesters, the legislation suppresses free speech and relies on disseminating climate change disinformation, experts say. And with anti-protest legislation, police and extractive companies have even more weapons in their arsenal to quiet the voices of those most affected by climate change.
“[Anti-protest laws] exist as a threat, as a kind of sword hanging over the heads of folks who are looking to come together and speak out about the climate crisis,” said Elly Page, a lawyer who tracks anti-protest legislation with the International Center for Not-For-Profit Law.
The communities of color that bear the brunt of pollution and violence born of extractive industries are impacted first and worst by climate change’s ballooning consequences. But where protesting once offered people of color a way to speak directly to those in power, public and civic action is more criminalized than ever, community advocates say.
Fossil fuel companies use government to limit speech
Since 2017, 45 state governments and the U.S. Congress have considered the implementation of 246 anti-protest bills, 39 of which have been enacted in 20 states. The increase in this kind of legislation is “a part of a larger picture of attacking our ability to engage in our democracy, and that’s sort of part and parcel with restrictions on voter access and the right to vote,” Page said.
The criminalization of protest began in the wake of actions against the Keystone XL Pipeline, which would have carried crude oil from Canada to southern export ports in the U.S. North Dakota was the first state to introduce an anti-protest law in 2017. Soon other states followed in North Dakota’s footsteps, having learned how to target specific protest tactics, with some state officials explicitly connecting their introduction of anti-protest legislation to an uptick of pipeline protests happening in other states.
Though the laws usually restrict the most recent protest actions—criminalizing highway obstruction used by Black Lives Matter hubs or criminalizing trespassing to target Indigenous water protectors—and don’t name the groups most affected the legislation, they function as a kind of dog whistle, said Nora Benavidez, senior counsel and director of digital justice and civil rights at Free Press.
“What’s so interesting is that on their face, they don’t name specific communities,” Benavidez said. “So the references to behaviors is one of our only tells to be able to understand that a lot of what’s happening underneath the surface here is an attempt to criminalize behaviors, protests, and exercise of free speech that we’ve seen communities of color try to exercise.”
While legal details in the bills vary, the throughline is clear: to enact felony penalties for civil disobedience and protest. The laws are often redundant, as all states already have rules on the books criminalizing actions like trespassing. Not to mention, Page said, that the laws are overly broad, vague, and present constitutional concerns. The implicit messaging of the laws are what the public should be wary of.
Anti-protest laws occur in oil states to protect oil interests. If you were to superimpose a map of the states that introduced anti-protest laws onto a map of pipeline fights, you would find that they look very similar, Page said.
Louisiana, with its 125,000 miles of pipelines, introduced critical infrastructure legislation in 2018. The Louisiana Mid-Continent Oil and Gas Association co-collaborated on the bill’s language and provisions, which were used a week after the bill’s approval to criminalize protesters against the 163-mile Bayou Bridge Pipeline, which is built through the wetlands of the Atchafalaya Basin.
In Texas, where most crude oil and natural gas pipelines culminate, legislators introduced the state’s first critical infrastructure bill in 2019, followed by a second in 2021. Four months after Texas Gov. Greg Abbot approved the first Texas anti-protest bill, which criminalized trespassing and conspiracy, 31 Greenpeace activists were charged with felonies under the new state law.
The swift descent of anti-protest laws on state houses was made possible by ALEC, formally known as the American Legislative Exchange Council, and by the involvement oil and gas industry leaders, like the Association of Oil Pipelines, have in drafting the legislation. Even federal legislation introduced in 2019 was also tied to industry: Howard R. Elliott, the head of the federal administration charged with regulating pipelines, had been previously employed as a vice president at CSX Transportation, a coal transportation company. A Greenpeace report found that organizations affiliated with police and prisons contributed $343,602 to proponents and sponsors of anti-protest legislation.
Democrats in Congress have noted how harmful anti-protest legislation is to free speech, climate justice demonstrations, and protests against extractive industries. In September, Maryland Rep. Jamie Raskin, who is the chairman of the Oversight Subcommittee on Civil Rights and Civil Liberties, hosted a hearing to “examine how the fossil fuel industry is weaponizing the law to stifle First Amendment protected speech and stymie efforts to combat climate change [through] anti-protest laws.”
The hearing presented findings from a report authored by the Center for Constitutional Rights, which argued that those in power, or those who are white and wealthy, “commandeer the machinery of government to suppress dissent and stave off socio-political changes aimed at a just redistribution of power and resources, using ever more desperate means of enforcing a racist and exploitative economic and political status quo.”
In other words, anti-protest laws don’t just exist to protect some of the biggest sources of carbon emissions, like refineries, electric power facilities, and natural gas and oil facilities from scrutiny, but to uphold the power of corporations at the expense of vulnerable communities.
Racism is based on disinformation
Hannah Waltz, the U.S. free expression programs coordinator at PEN America, said that anti-protest laws rely on other forms of disinformation steeped into American culture, particularly as it relates to climate change. While 72% of adults in the U.S. believe that global warming is happening and feel that the U.S. should regulate carbon dioxide emissions as a pollutant, many Republican state officials are fueled by the lie that climate change is not happening.
Many of these anti-protest bills are introduced and approved “not from the needs or the will of the people,” as stated by the Center for Constitutional Rights report. Instead, corporations build relationships with Republican legislators, often collaborating to propose, write, and lobby for legislation. Matthew Goldberg, an associate research scientist at the Yale Program on Climate Change Communication at Yale University, told The Guardian earlier this year that people in the gas industry are particularly adept at recognizing allies in state legislatures and that those allies are “rewarded” for supporting legislation that harms the environment through campaign donations.
It tracks, then, that pipeline companies rarely, if ever, alert local governments, communities, or households whose land will serve as pipeline throughway to the true risks of climate change and pipeline operations. Pipelines can crack, leak, and explode, poisoning the air and water of surrounding communities. One study that tracked emissions data not by burning of fossil fuels but by all of the actions—mining, refining, transporting—leading up to the market and sale of fuel found that oil and gas pipelines account for 47% and 44%, respectively, of emissions from the top 10 carbon dioxide emitters. Oil companies often use predatory practices to coerce people into signing paperwork approving pipeline operations before the full picture is realized. In other cases, communities are promised jobs that never materialize.
There are many reasons to protest, activists say, but there’s always risk involved. Pipelines usually surround those most affected by climate change, like generational small farmers and ranchers, low-income communities, and communities of color. Take, for instance, the Virginia Reliability Project, a proposal to expand gas infrastructure by the same Canadian company behind Keystone XL, where nearly half of residents living along the route are people of color and people who have an income below the federal poverty line.
Even without the existence of anti-protest laws that empower police and security forces to arrest protesters or use tear gas, water, and dogs against them, research has shown that police are more likely to escalate protests led by Black leaders, Benavidez said. Police are three times more likely to intervene in pro-BLM demonstrations than they are in right-wing protests, and when police do intervene, they are more likely to do so violently.
As Waltz sees it, anti-protest bills and structural racism are founded on different threads of the same impulse to protect wealthy, white power holders, which are then used to reinforce each other. The disinformation is especially effective at disregarding the relationship Indigenous communities have to the land and why Native peoples seek to protect and defend water, which is “related to the disinformation that we tell ourselves about the way that this country was colonized, and also, the way that we don’t take care of our land—and that comes down to climate disinformation as well,” Waltz said.
In other words, anti-protest laws are based on understandings of violence, usually defined by those in power who position protesting climate degradation as a kind of harm rather than seeing climate degradation as the harm itself. This same disinformation can be said about other anti-protest laws that emerge after waves of civic action: that protests against anti-Black violence are more egregious than the violence itself, that Native peoples asserting their right to clean water are more destructive than that which pollutes the water.
“If we’re going to look at this as an overarching anti-democratic movement that disproportionately targets communities of color, it’s hard not to draw those connections,” Waltz said. Legislation that limits speech and voting “always, always affects and targets communities of color more often than anyone else,” Waltz said.
In some ways, the mere existence of anti-protest laws reflect that progressive civic disobedience is shifting social and economic conditions in the U.S. successfully, Benavidez said.
If you look at it that way, Benavidez said, it makes sense that extractive companies would put their dollars behind anti-protest legislation: divestment, direct action, student-led protests, and a growing movement to return land led by Native leaders are shining a light on the connection between pipeline construction and the climate crisis and demonstrating that everyday people can take on multi-billion dollar corporations.
Benavidez said that it’s possible to fight back against anti-protest laws before they land on a governor’s desk for signature. Legislators and private interests claim that the legislation will solve real problems, and Benavidez said that local leaders can come forward to dispel the myth that anti-free speech legislation will actually solve anything.