Originally published by Kansas Reflector on March 20, 2021:
TOPEKA — A Kansas bill creating new crimes for damage of critical public or private infrastructure prompted inquiries into the need for more stringent protection of these sites and possible restriction of free speech.
The measure would create four criminal acts ranging from misdemeanor trespassing of infrastructure facilities to felony offenses for criminal damage, aggravated trespassing and aggravated criminal damage to infrastructure. Designated facilities include oil refineries, power plants and above- and below-ground pipelines.
Senate Bill 172 places these offenses under the umbrella of the state’s Racketeer Influenced and Corrupt Organizations, or RICO, statute. Created in 1970 by the federal government, RICO extends criminal penalties for actions as part of an ongoing criminal organization.
Opposition to the measure expressed dismay with the legislation for fear it would muzzle protests based on conjecture and concern it would not address any real issue in Kansas. Some questioned the decision to add these crimes under RICO. Supporters of the bill, however, argued current criminal statute does not address the security needs of these facilities.
“Currently, Kansas has criminal laws against tampering with pipelines, but many other forms of critical infrastructure are not afforded the same necessary protection,” said Gavin Kreidler, a lobbyist for the American Fuel and Petrochemical Manufacturers. “We believe increasing the criminal penalties on individuals who knowingly trespass or damage a critical infrastructure facility is vitally important to maintaining our everyday lifestyle, our Kansas economic output, and in some cases the defense of our state and nation.”
The bill received Senate support largely along party lines in passing by a vote of 29-9. Similar measures have been introduced in dozens of states across the country, stemming from the Dakota Access Pipeline protests at Standing Rock Reservation.
In 2016, thousands of people gathered to protest the construction of the pipeline, projected to run from western North Dakota to southern Illinois, crossing under a part of Lake Oahe near Standing Rock. The construction was viewed as a threat to the region’s water supply and sites of cultural importance.
That context had several who testified in opposition to the bill wary of the bill’s intentions and critical of the result it would have. Rep. Ponka-We Victors, D-Wichita, called the legislation a “knee-jerk” reaction directed at Native Americans.
“This is a step backward by creating fear in people to exercise their freedom of speech and right to protest on various issues,” Victors said. “Throughout my years in office, I have learned that we may not agree on everything, but I do respect everyone’s rights and opinions on various issues.”
Victors encourage the House Judiciary Committee to reject the legislation as there is no such anti-pipeline movement in Kansas.
Proponents stated attacks on Indigenous Peoples’ rights was not the intent of the bill.
“The intent was to have a proactive and coordinated effort to support and strengthen the Nation’s diverse and complex critical infrastructure, including assets, networks and systems that are vital to public confidence, the Nation’s safety, prosperity and well-being,” said Michael Gillaspie, director of governmental relations for ONEOK, a natural gas company.
Rep. John Carmichael, D-Wichita, asked proponents of any examples in Kansas that would warrant the need for such steep crimes. No concrete examples were provided, with supporters expressing knowledge of incidents that many of these infrastructure sites wanted to keep under wraps for security reasons.
Rep. Marty Long, R-Ulysses, echoed those accounts from personal experience in his district, but Carmichael was not keen on passing legislation based on secondhand accounts.
“I’m always very suspicious of testimony presented at a committee hearing that’s based upon rumor,” Carmichael said. “I’m not going to take the word of unidentified second-hand informants in making public policy in Kansas.”
Zack Pistora, a lobbyist for the Kansas Sierra Club, was most concerned with the broad scope of trespassing in the bill. He said this language would invite an unintended consequence and penalties for accidental infractions.
“While we all can agree that intentional damage to critical infrastructure should be penalized appropriately, this bill could interfere with peaceful, legal events or cause overly aggressive criminal penalties for accidental or petty trespassers or vandalism,” Pistora said. “Since current law has prevented and addresses these crimes, there is no need for SB 172.”
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