Sheriff’s deputies arrest Cherri Foytlin, left, and other protestors opposing the Bayou Bridge pipeline near Bayou Chene in St. Mary Parish on Sept. 4, 2018. Although invited onto the property by a landowner, the two were charged with felony trespassing under Louisiana’s “critical infrastructure” law. (Photo by Karen Savage)
NEW ORLEANS – A federal appeals court heard arguments Monday in a First Amendment case challenging a 2018 Louisiana law that criminalizes being on or near a pipeline without permission.
The case was originally filed in 2019, after the arrests of 16 environmental activists protesting the construction of the Bayou Bridge pipeline and one journalist covering their actions. They were charged with felonies under the state’s amended critical infrastructure act but the charges were dropped by District Attorney Bofill “Bo” Duhé in 2021. Still, the protesters are fighting the law in court. Duhé is one of the defendants in the case, along with Louisiana Attorney General Liz Murrill.
Anne White Hat, one of the protesters arrested in 2018, is a main plaintiff of the case. White Hat is a member of the Sicangu Lakota and works with the water rights organization L’eau Est La Vie. She told Verite News that she hadn’t expected to be arrested that day. White Hat said the law, which designated oil pipelines as critical infrastructure and made it a crime punishable by five years in prison for anyone to enter the vicinity of a pipeline without permission, isn’t clear.
“I feel like the law is so vague that anybody could be targeted at this point,” White Hat said after the arguments were heard in the U.S. 5th Circuit Court of Appeals. “It’s a very dangerous precedent to set.”
In 2022, the district court dismissed the lawsuit by saying that the First Amendment issues did not apply to private property outlined in the bill.
In court, White Hat and other plaintiffs — including environmental rights organizations, activists and landowners who say companies are illegally constructing pipelines on their land — are represented by lawyers from the Center for Constitutional Rights, a nonprofit organization that litigates civil and human rights cases. The lawyers argued in front of judges James Graves, Stephen Higginson and Cory Wilson that the vague nature of the bill violates the 14th Amendment. The bill also undermines the expressions protected by the First Amendment, including the right to protest and the freedom of the press, plaintiffs’ attorneys said.
“The problem with this law is that it says that you can’t be on or upon the premises of a pipeline, but it does not define what premises of pipeline is,” attorney Astha Sharima Pokharel told Verite News. “The premises of a pipeline could be virtually the entire state of Louisiana without clear definition of what premises is.”
Natural gas pipelines make up about 50,000 miles of the 125,000 total miles of pipeline that cross every “major highway, railroad and navigable waterway” in the state, according to the Department of Energy and Natural Resources. The breadth of what critical infrastructure is — defined by the bill as any line that transports oil, gas, petrochemicals, minerals or water — and the lack of distinct markers of where those lines are informed most of Higgonson’s questioning.
“How do I know not to step on top of one?” Higginson asked during oral arguments.
State legislators passed the critical infrastructure law passed during a time of heightened opposition to the Bayou Bridge pipeline, a 213-mile-long gas line that stretches from eastern Texas to St. James Parish. Environmental advocates have argued that the pipeline endangers wetland environments such as the Atchafalaya Basin, but the line itself was completed in 2019.
A court found that the pipeline company, Texas-based Energy Transfer Partners, was itself trespassing on private land when it called authorities to report the protesters. If the energy company itself couldn’t properly understand the trespassing law, Higginson asked, how could a regular citizen?
Attorneys representing the state attorney general and district attorney’s office argued that the protesters were simply trespassing, but couldn’t clearly answer questions about what constituted the premise of a pipeline. They also argued that plaintiffs didn’t have the standing to bring the case because they weren’t harmed by the law, given that their charges were dropped. Neither office replied to Verite News’ requests for comment in time for publication.
Sharima Pokharel said the defendants’ inability to answer questions about premises posed in court were “damning.” After the arguments, White Hat said she felt hopeful and that their case was strong.
The court will make a decision based on the oral arguments, Sharima Pokharel said, which could take months.
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This article first appeared on Verite News New Orleans and is republished here under a Creative Commons license.