A federal court on September 18, 2019, blocked South Dakota's laws suppressing protests of the Keystone XL pipeline. The temporary order came in a lawsuit filed by the ACLU and the ACLU of South Dakota.
The South Dakota Legislature Has Invented a New Legal Term to Target Pipeline Protesters
The government of South Dakota has made it very clear that it does not like people who protest the Keystone XL pipeline. The state’s governor has dismissed them as “out-of-staters who come in to disrupt.” And other officials have similarly leveraged long-debunked and harmful tropes, mischaracterizing those speaking out as “paid protesters.”
In this atmosphere, South Dakota enacted a new law last week, the Riot Boosting Act. The law seeks to suppress protests before they even start and prohibits people from engaging in full-throated advocacy. It does so by creating a new, ambiguous term: “riot boosting.”
If you’re wondering what that means, so is everyone else, including those who want to speak out. And that’s a big problem.
The new law gives the state the authority to sue individuals and organizations for “riot boosting,” but it does not clearly describe what speech or conduct it considers to be “riot boosting.” The law is written so broadly that even a tweet encouraging activists to “Join a protest to stop the pipeline and give it all you’ve got!” could be interpreted as “riot-boosting” should a fight break out at the protest. The law joins two existing state criminal laws that also target such speech, meaning that advocacy could now result in up to 25 years of prison time, fines, or civil penalties — or a combination of all three.
Let’s be very clear: States are within their rights to prohibit incitement of violence — a narrow category of unprotected speech that refers to words intended and likely to cause imminent violence. But these laws go far beyond that by criminalizing impassioned advocacy that lies at the core of our political discourse. They instill a fear among peaceful organizers that their actions or words could be misconstrued by the government as “riot boosting.” As a result, activists are now forced to think twice before even encouraging others to join a protest, let alone train, educate, or advise those who plan to protest. And, because of these laws, they may forgo such speech and association altogether.
That is a clear First Amendment violation — and why we are in court to challenge the laws on behalf of the Sierra Club, NDN Collective, Dakota Rural Action, and the Indigenous Environmental Network.
According to the state’s website, the Riot Boosting Act is a result of Governor Kristi Noem’s discussions with TransCanada — the company that is set to build and operate the Keystone XL pipeline — and other stakeholders. Notably, the state did not meet with Native American tribes or environmental groups.
This comes across loud and clear in the final law, which not only gives the state the authority to sue anti-pipeline groups and activists but also gives third-parties — including TransCanada — the ability to join in. Further, the money seized from protesters through these lawsuits can be used to fund the very thing they are protesting, thereby giving the company an added financial incentive to go after pipeline protesters.
If this attack on protest sounds eerily familiar, that’s because it is.
In just the last two years, we’ve seen a rise in government efforts to stifle protests, particularly those led by Indigenous and environmental activists, often in opposition to pipelines. There have been attempts to equate protesters with domestic terrorists and saboteurs. Law enforcement authorities have partnered with private security companies to surveil activists and control protests. Known FBI informants have infiltrated activist spaces and camps. The federal government has implemented “no-fly zones” to black out media coverage during heightened police crackdowns.
And if Governor Noem’s rhetoric on “shut[ting] down” “out-of-state people” who come into South Dakota to “slow and stop construction” of the pipeline sounds familiar, it should. It echoes government attempts throughout our history to justify anti-protest actions by delegitimizing protesters as “outside agitators.”
In 1964, infamous segregationist George Wallace said racial tensions did not exist in the South “except in a very few isolated instances” caused exclusively by “outside agitators.” He was not alone in attempting to frame the civil rights movement in the South as the work of “outside agitators.” Southern authorities frequently attempted to discount legitimate grievances and protests by Black people as nothing more than an attempt by radical outsiders to sow dissent. They even called Reverend Martin Luther King Jr. an “outside agitator.”
More recently, in 2014, after the unrest in Ferguson, Missouri, the police blamed “outside agitators” for the majority of the unlawful activities. Not only were these claims later debunked in a scathing report by the Department of Justice, they also allowed the police to minimize the harmful impact of their own improper practices that caused the citizens of the city to protest in the first place.
What’s happening in South Dakota is no different. The government has dismissed Native Americans, state farmers and ranchers, and residents of nearby states who opposed the pipeline as outside agitators. But the pipeline, if constructed, would have a substantial impact on all of their lives – including our clients, many of whom are South Dakotans. Moreover, the construction of the Keystone XL pipeline is a national issue, and it deserves a national debate.
Opposition to the construction of the pipeline may agitate Gov. Noem, but the First Amendment guarantees the right to voice that opposition. Those affected by the pipeline’s construction deserve to be heard even if Gov. Noem and TransCanada want them all to shut up.
... and the reason, why DAPL must be fought by all means, is:
(TMU) — A pipeline carrying tar sands oil into the United States from Canada has reportedly leaked an unknown amount of oil across North Dakota. The pipeline’s owner, TC Energy—formerly known as TransCanada—shut down the pipeline as a result of the leak.
“TC Energy immediately began the process to shut down the pipeline, activated its emergency response procedures and dispatched ground technicians to assess the situation,” the company said.
According to State Environmental Quality Chief Dave Glatt, regulators were notified of the crude oil leak near the town of Edinburg in northeastern North Dakota late on Tuesday after detecting a drop in pressure. The oil was reportedly leaked over an area that regulators have estimated to be about 1,500 feet long by 15 feet wide as of Wednesday afternoon.
The Calgary, Alberta-based company is working to contain the spill, the cause of which is currently under investigation. Area roads are closed as the clean-up and investigation continues.
According to Glatt, area drinking water was not affected by the spill though some wetlands were affected.
It is unclear when the leak began and for low long it has been leaking.
At a cost of $5.2 billion, the 590,000-barrel-per-day Keystone pipeline, which began pumping crude oil in 2010, is part of a 2,687-mile system that would include the Keystone XL pipeline, if approved.
Just yesterday, tribal officer Kip Spotted Eagle told a South Dakota state panel that the proposed Keystone XL pipeline should not be allowed to divert water from three rives in South Dakota. The Yankton Sioux Tribe historic preservation officer said the proposed pipeline project could infringe on tribes’ hunting and fishing.
The $8 billion project is seeking permits to use water from the Cheyenne, White, and Bad rivers in South Dakota. The state’s Department of Environment and Natural Resources has recommended the board grant the permits.
By Phil Helsel - NBC - 01. November
More than 9,000 barrels of oil are estimated to have spilled from a leak in the Keystone Pipeline in northeastern North Dakota, the company said. It's the second significant spill in two years in the pipeline that runs from Canada's tar sands region and through seven U.S. states.
Crews shut down the pipeline after the leak was discovered Tuesday night, Karl Rockeman, North Dakota's water quality division director, told the Associated Press. The oil spill affected a wetlands area.
TC Energy, formerly known as TransCanada and which operates the pipeline, said Thursday that an estimated 9,120 barrels of oil, enough to fill half of an Olympic-sized swimming pool, was released in the spill.
Land affected by a Keystone oil pipeline leak near Edinburg, North Dakota. Taylor DeVries / North Dakota Department of Environmental Quality via AP
Using that initial estimate, that amounts to around 383,000 gallons. The company says it won’t know the exact amount until oil recovery has been finished.
The leak occurred near the company's facilities near Edinburg, a community of around 200 people in Walsh County around 60 miles northwest of Grand Forks, TC Energy said. The North Dakota Department of Environmental Quality said the leak was 3 miles northwest of Edinburg.
"Our emergency response team contained the impacted area, and oil has not migrated beyond the immediately affected area,” TC Energy said in an earlier update.
It said that crews remain focused on oil recovery and will then make repairs to the pipeline. Crews are using vacuum trucks and backhoes to recover the oil, it said.
Rockeman told the AP that some wetlands were affected, but not any sources of drinking water.
In November 2017, more than 200,000 gallons of oil — around 4,700 barrels — leaked in South Dakota. The leak occurred in a sparsely populated area of Marshall County, near Amherst in the northeastern part of the state.
The $5.2 billion pipeline is designed to carry crude oil across Saskatchewan and Manitoba, and through North Dakota, South Dakota, Nebraska, Kansas and Missouri on the way to refineries in Patoka, Illinois, and Cushing, Oklahoma, and it can handle 23 million gallons daily.
TC Energy is also seeking to build the Keystone XL pipeline that would begin in Hardisty, Alberta, and go to Steele City, Nebraska.
Because the pipeline would cross an international border, the U.S. State Department is collecting public comments on its revised environmental impact statement for the pipeline, NPR reported Thursday. An Oct. 4 entry in the Federal Register says the public comment period is expected to end on Nov. 18.
The Keystone XL proposal was rejected by the Obama administration in 2015, but approved by the Trump administration in 2017.
TC Energy says the XL pipeline will create jobs during construction as well as other benefits.
It says on its website it wants to start construction in 2020, and that construction will take around two years.
Environmental groups and others have opposed the project. The Sierra Club said in a statement Wednesday that the spill from the Keystone 1 pipeline is one of a dozen spills in its first year of operation.
"We don’t yet know the extent of the damage from this latest tar sands spill, but what we do know is that this is not the first time this pipeline has spilled toxic tar sands, and it won't be the last," Sierra Club Beyond Dirty Fuels associate director Catherine Collentine said.
"We've always said it's not a question of whether a pipeline will spill, but when, and once again TC Energy has made our case for us," Collentine said.
Greenpeace USA tweeted of the spill: "Brought to you by the corporation that wants to build the much larger #KXL pipeline and have it cut right through the Midwest," referring to the Keystone KL.
Sen. Bernie Sanders, I-Vermont, who is running for the Democratic presidential nomination, in a tweet Thursday accused President Donald Trump of ignoring science and putting profits ahead of the environment.
"As president, I will shut down the Keystone Pipeline that should never have been built in the first place," Sanders said.