The Pipeline and Hazardous Materials Safety Administration (“PHMSA”), a regulatory agency under the Transportation Department, released a recommendation this month to Congress that increases penalties for certain pipeline protest activities. Specifically, the PHMSA called on legislators to expand an existing law that imposes fines and up to 20 years’ prison time for damaging and destroying pipelines in operation. The PHMSA suggests that Congress widen the law to add vandalism, tampering, impeding, disrupting, or inhibiting pipeline operation or construction, to the list of punishable offenses.

Like so many contemporary issues, reaction to the PHMSA’s proposal has revealed political divides. At least in the immediate short term, the legislation will most likely fail in the Democratic controlled House. However, the issue is more complex. As pipeline construction impacts more landowners, the groups that have a stake in such proposals as the PHMSA’s have become numerous.

The International Center for Not-For-Profit Law, for example, a nonprofit organization concerned with the free speech implications of protest suppressive legislation, has First Amendment related concerns with the PHMSA’s recommendation. Specifically, they are worried about what they perceive as a dangerous combination of vague legal provisions combined with extraordinarily harsh penalties. The fear is that such vague legal language could allow substantially suppressive government action to occur against overly broad categories of individuals. An additional concern is that the punishments themselves are too severe.

Environmental advocates were also less than enthusiastic in their response to the PHMSA’s proposal, as protest actions of various kind have a long history in environmental activism. American Indian tribes, recently affected by the Dakota Access pipeline, also expressed discontent with the proposal.

The PHMSA has asserted that its goal is to deter protestors from causing serious harm by disincentivizing highly destructive activities. They are concerned with specific protestor action such as valve tampering, and other pipeline compromising protest actions. The PHMSA further stated that the recommendations were not intended to infringe on First Amendment rights and expressed a willingness to work with Congress to ensure these rights are protected.

Perhaps predictably, industry groups, such as the American Gas Association and the American Petroleum Institute were supportive of the PHMSA’s overall set of recommendations and expressed approval with the general intent of the proposals. The Interstate Natural Gas Association did not comment directly on the guidelines but have expressed general support of legislation that would strengthen the legal protections of pipeline assets. They cited the dangers that tampering and vandalization of pipelines could manifest and argued that interference with pipeline operations resulting in a breach could have environmental drawdowns.

The law on pipeline safety lapses on September 30th this year, which provides an opportunity for the PHMSA’s proposals to be incorporated into the reauthorization process. Though Congress has not made substantial steps in deciding what changes reauthorization may entail, legal language similar to the kind used in the PHMSA’s proposals has actually cropped up in various state laws. As of this time of writing, Texas has a bill criminalizing pipeline protests and interference, HB 3557, awaiting the governor’s signature.

Landowners should be cautious of this legislative trend. Though nothing concrete either at the Texas State or Federal level has become fully formed, there does seem to be a general trend of tightening up anti-pipeline protest penalties against the protestors. The concern for landowners is that they too may face exposure to penalties under these new laws, even if the pipeline is on their property.

Written by Christopher Chan with Justin Hodge and Kyle Baum