Beginning in 2016, Indigenous people at Standing Rock Reservation began to protest attempts to build the Dakota Access Pipeline across their lands. In the years since, nineteen states have passed laws which make it a felony to trespass upon or damage the property of oil and gas companies, or in any way “interfere” with their operations. Such laws borrow from the vocabulary of the War on Terror, weaponizing public fear of domestic terrorism to levy massive charges against protesters. The texts of these laws are often written by corporate lobbying groups, such as the Louisiana Mid-Continent Oil and Gas Association, and passed with the backing of the conservative American Legislative Exchange Council.
Georgia has in recent months made broader use of such laws than perhaps any other state up until now. In an attempt to quash dissent against plans to build the so-called Cop City in Atlanta, officials have arrested dozens of protesters, many on domestic terrorism and critical infrastructure charges that carry potential sentences of decades in prison. Regardless of whether Georgia can make the charges stick in court, they may have already had the desired chilling effect: For anyone who might wish to exercise the right to protest, there is now the very real possibility they will have to defend themselves against the threat of decades behind bars.
Because these laws—and specifically their use against protesters—are relatively new, it remains something of an open question how best to defend protesters against these charges in court. Yet few have more experience doing so than Loyola University emeritus professor of law Bill Quigley, who has represented a number of protesters charged under Louisiana’s expanded critical infrastructure law—most notably, folks charged for opposing the construction of the Bayou Bridge Pipeline. This southernmost segment of the Dakota Access Pipeline, completed in 2019, runs directly through the wilderness of the Atchafalaya Basin.
Inquest’s editors emailed recently with Quigley about his experience and the insights he has garnered along the way. The interview was edited lightly for clarity.
How did you first get involved in defending Louisiana protesters who had been charged with felonies under the state’s critical infrastructure law?
Bill Quigley: I have been representing people in civil disobedience cases for many years. I have also helped out many organizing efforts. Some of the people involved in the organizations challenging the Bayou Bridge Pipeline asked me and Pam Spees of the Center for Constitutional Rights to assist them with legal matters. So, along with Spees, I ended up representing more than a dozen people after they were arrested. Even more people had been arrested earlier in the year and charged with misdemeanors until August 1, 2018, when the new state law went into effect, making the actions which had been misdemeanor charges into felony charges.
What do you think is the origin of this new repressive strategy?
BQ: It is clearly corporate in origin. The new infrastructure laws are an attempt by corporations to magnify and ride the fear of terrorism to protect their own for-profit businesses. The oil and gas industry saw what was going on at Standing Rock and decided to change the laws to stifle dissent and hyper-penalize essential nonviolent protest. Like at Standing Rock, the private corporation in Louisiana hired dozens of government law enforcement officers to come out and privately secure an area which the corporation did not even have legal permission to dig in. Essentially the corporation was itself trespassing and knew it and yet they hired public law enforcement to arrest private protesters.
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Up to this point, states have had limited success with getting convictions under these expanded critical infrastructure laws. Do you think that is because they’re still just working out how to prosecute them—or is a conviction beside the point, given the chilling effect that these charges alone already have?
BQ: I think the corporations that are behind these laws do not actually care that they are flawed or that there have been few convictions. The goal is to intimidate as many people as possible and extract as many resources as possible as quickly as possible. They know the end of their industry is on the horizon so they are furiously trying to make as much profit as possible for as long as possible. They buy legislative action and they intimidate the dissent of the people.
And for people who wish to directly challenge these unjust laws by taking action, the risks are significant. I have represented hundreds of people for misdemeanor arrests and a couple of dozen for felony arrests. It is much harder for people to risk an arrest with the possibility of felony charges than it is for misdemeanor charges. Arrests have consequences in job applications, schooling, licensing, and the like. Even more so if there is an actual conviction. It is intimidating, just like the drafters of the laws planned.
What insights have you gained from representing activists charged with critical infrastructure charges?
BQ: Organizing is the key element in all social change. The legal strategy has to be coordinated and informed by the organizing strategy. Anyone who has been arrested under these unjust laws who goes to court without support and an organizing strategy will likely be martyred by the legal system. The government and corporations are using the legal system to squash dissent. Those who want to speak and act for justice need to be working with community groups. Only then can what happens in court have a chance to change the conversations that absolutely need to happen if we are going to transform our world.
Are there political or organizing responses that strike you as particularly successful in answer to this surge in critical infrastructure laws?
BQ: Civil disobedience does not by itself make change, but as part of a wider social movement it can help. All social movements need to be working on several fronts simultaneously. Organizing with people and growing the movement to reclaim the power that people have unjustly had taken from them. This means communicating the message in as many ways as possible. This means trying to change the unjust laws. This means outreach and education and advocating. If all that is going on, the civilly disobedient defendant can be a part of advancing change by including experts in their trials, making sure the word gets out far and wide about the trials and the misuse of the law. These are the ingredients of social change movements and civil disobedience can definitely be a part.
Image: Jarrod Erbe/Unsplash