KENTUCKY - Oil & Gas "Critical Infrastructure" Anti-Protest Bills

  • Posted on: 17 July 2019
  • By: Connor Gibson

Updated March 30, 2020.

See Full Report: State Bills to Criminalize Peaceful Protest of Oil & Gas "Critical Infrastructure"

2020 Ky HB 44 - now law

  • Signed by governor on March 16, 2020
  • Passed by Senate on March 5, 2020
  • Passed by House on February 10, 2020
  • Introduced January 7, 2020
  • Pre-filed August 29, 2019 as Bill Request 201

ICNL Analysis:

Would create new potential criminal and civil penalties for protests around oil or gas pipelines and other infrastructure facilities. Like HB 238, introduced in the 2019 session, HB 44 amends the definition of “key infrastructure assets" under Kentucky law to include “natural gas or petroleum pipelines.” Encompassed facilities and properties designated “key infrastructure assets” are not limited to areas that are fenced off or posted by “no entry” signs. Trespass onto "key infrastructure assets" is a Class B misdemeanor for the first offense (up to three months in jail) and a Class A misdemeanor for subsequent offenses (up to one year in jail). As introduced, the bill created a new offense for for a person who “intentionally or wantonly... tampers with, impedes, or inhibits operations of a key infrastructure asset.” This conduct would comprise “criminal mischief in the first degree”--a Class D felony, which under Kentucky law can be punished by up to five years in prison. [...] The introduced bill also provided that any "person" (which under Kentucky law could include an organization) may be civilly liable if they "knowingly compensate[] or remunerate[]" another person to commit criminal mischief on a key infrastructure asset. The damages include actual damages to personal or real property “caused by the crime” as well as punitive damages, court costs, and attorney’s fees.

**An amendment removed the language penalizing activity that "impeded" or "inhibited" operations of infrastructure like a pipeline. The enrolled version instead penalizes "tamper[ing] with the operations of a key infrastructure asset... in a manner that renders the operations harmful or dangerous." The amendment also narrowed vicarious civil liability anyone who "knowingly directs or causes a person" to commit the tampering offense.** [emphasis in original]

 

ALEC Legislators:

Sponsor Sen. Jim Gooch is a confirmed ALEC KY legislator, according to ALEC membership lists publised by Documented in August, 2019.

Industry Lobbying:

A recording of the KY House Natural Resources & Energy Committee hearing on January 30, 2020, obtained and published by Documented, includes presentations by:

  • Marathon Petroleum lobbyist Erin Osting
  • Dinsmore & Shohl lobbyist Rusty Cress, on behalf of the Kentucky Manufacturing Association and Kentucky League of Cities.
    • Marathon Petroleum executive Tracie McCall is on the board of the Kentucky Manufacturing Association

2019 KY SB 238

  • Died in Senate after referral to Natural Resources & Energy Committee on March 5, 2019
  • Passed House on February 26, 2019
  • Introduced on February 5, 2019

ICNL Analysis:

Would create new potential criminal and civil penalties for protests around oil or gas pipelines and other infrastructure facilities. The bill expands the definition of “key infrastructure assets" to include “national gas or petroleum pipelines.” Encompassed facilities and properties designated “key infrastructure assets” are not limited to areas that are fenced off or posted by “no entry” signs. Under the bill, a person who “intentionally… vandalizes, defaces… or impedes or inhibits” key infrastructure is guilty of “trespass upon key infrastructure assets in the first degree.” It is unclear whether a protest that “impeded” access to a pipeline by blocking a road, or one that “inhibited” the operation of a pipeline by blocking pipeline construction or repair equipment, would fall under this definition. The offense is categorized as a Class D felony, punishable by up to five years in prison. The bill also provides that an individual convicted of the offense may be civilly liable for “any damages to personal or real property while trespassing.” Finally, the bill provides that a person or “entity” that “compensates or remunerates a person for trespassing” may be held liable for damages, as well.

ALEC Legislators:

Sponsor Sen. Jim Gooch is a confirmed ALEC KY legislator, according to ALEC membership lists publised by Documented in August, 2019.

Oil & Gas Lobbying:

SB 238 was supported by the Consumer Energy Alliance, an oil industry front group representing dozens of oil, gas, coal, and utility companies and trade associations. Examples of Consumer Energy Alliance (CEA) members include the follow companies that have advocated for anti-pipeline-protest bills in other states:

  • American Fuel & Petrochemical Manufacturers (AFPM - see AFPM member companies)
  • American Gas Association (AGA - see AGA member companies)
  • Association of Electric Companies of Texas (see members listed on page for Texas Oil & Gas Infrastructure anti-protest bills)
  • Association of Oil Pipelines (AOPL)
    • Members include BP, Chevron, Colonial Pipeline (co-owned by Koch Industries, Shell, and others), Enbridge, Energy Transfer Partners, ExxonMobil, Flint Hills Resources (Koch Industries), Koch Pipeline Company, Kinder Morgan, Magellan Midstream, Marathon Pipe Line, OneOK, Phillips66, Shell, TransCanada, Valero, and Williams.
  • BP
  • Cabot Oil & Gas
  • CenterPoint Energy
  • Cheniere Energy
  • Chevron
  • Dominion Resources
  • Edison Electric Institute (EEI - see EEI member companies)
  • Energy Transfer Partners
  • EOG Resources
  • ExxonMobil
  • Independent Petroleum Association of America (IPAA)
  • PennEast Pipeline LLC (co-owned by Enbridge)
  • Phillips66
  • Shell
  • Spectra Energy (Enbridge)
  • Williams
  • Xcel Energy

News and References:

Alexander C. Kaufman, States Quietly Pass Laws Criminalizing Fossil Fuel Protests Amid Coronavirus Chaos, HuffPost, March 27, 2020

A review of actions in Kentucky's General Assembly last week, Corbin Times Tribune, March 2, 2020

Press release: Critical infrastructure security bill advances, Kentucky Legislative Research Commission, published in Falmouth Outlook, February 27, 2020

Ryan Van Velzer, Anti-Pipeline Protest Bill Moves To Senate, WKU, February 11, 2020