First Amendment in the Crosshairs: Trump’s Latest Attacks

The federal government steps into the anti-pipeline protest arena by sneaking harsh, broadly applicable, criminal penalties into PHMSA’s reauthorization statute.

We’re only a few days into the week, and already there’s a new barrage of First Amendment attacks coming from the Trump Administration. On Monday morning, President Trump upped the ante in his incessant battle with CNN. A few hours later, Elaine Chao, the now-embattled U.S. Transportation Secretary, unveiled proposed pipeline safety legislation that contains anti-democratic provisions intent on scaring off protests against oil and gas infrastructure. This marks a familiar trend for Trump and his administration: when a perceived impediment to expanding fossil fuel development arises, they try everything from leap-frogging the courts to cutting out public participation to ram projects and project approvals through. This week's move marks a significant ramp up in these efforts to limit public engagement and silence dissent.

This week’s flavor of anti-protest legislation is particularly nasty. Under the guise of a reauthorization of the Pipeline and Hazardous Materials Safety Administration’s (PHMSA) authorizing statute, the Department of Transportation snuck in language that is being aggressively promoted by the right-wing lobbying group American Legislative Exchange Council (ALEC), which has close ties to fossil fuel interests like Peabody Coal and Koch Industries. By doing so, the federal government is now joining ranks with anti-freedom legislators from up to a dozen states that have pushed, and in many cases passed, similar legislation. Indeed, in the last week, Texas passed legislation with severe criminal penalties for protestors of oil and gas infrastructure, while common sense prevailed in Illinois, where a similar bill died.

What does the PHMSA bill do? In a nutshell, it criminalizes a wide variety of—and in many cases vaguely defined—activities while imposing extremely harsh penalties on those found guilty. Instead of it being a crime to damage or destroy a pipeline facility, the proposed PHMSA legislation would now make “damaging, destroying, vandalizing, tampering with, impeding the operation of, disrupting the operation of, or inhibiting the operation of,” a pipeline a felony offense punishable with prison time. Similarly troubling, the bill’s reach would extend not just to operating infrastructure, but also “a facility under construction and intended to be operated as such a facility on completion of the construction.” In other words: delay this pipeline at your own peril.

Let’s be clear here. States and the federal government already have laws on the books that punish these types of activities, but in ways that are far more commensurate with the gravity of the offense. The Trump Administration’s PHMSA language and all these state bills are about one thing, and one thing only: chilling speech, stopping protest, and protecting oil and pipeline companies from the costs of project delays. This is un-American. Our governments—be they local, state, or federal—should never take a swing at the Bill of Rights by putting the interests of corporate polluters above the free speech of the American public. We hope to see this language swiftly removed from PHMSA’s proposed legislation.

About the Authors

Josh Axelrod

Senior Advocate, Nature Program

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