In Louisiana, Stepping onto Oil and Gas Industry Land May Soon Get You 3 Years or More in Prison

The state is one of four to pass bills amidst the pandemic imposing harsh penalties for trespassing on oil pipelines or other “critical infrastructure.”

Jun 10, 2020
 Courtesy of Sharon Lavigne

Sharon Lavigne used to walk on the grounds of a petrochemical complex she has been protesting for two years. But a bill on the Louisiana governor's desk may make trespassing on flood control infrastructure punishable by three to 15 years in prison. Courtesy of Sharon Lavigne

Sharon Lavigne has spent the last two years fighting a petrochemical complex planned near her community, in St. James, Louisiana. Over the last six months, the 68-year-old-retired teacher has walked onto the property to lay flowers on a burial site that may contain the remains of the slaves she's descended from, and recorded live-stream videos from the levee overlooking the land.

But unless Gov. John Bel Edwards, a Democrat, vetoes a bill sitting on his desk this week, those acts could soon be punishable by a mandatory minimum sentence of three years in prison.

The bill, which passed the state Legislature in May, amends existing law that already makes it a felony to trespass on "critical infrastructure," a list expanded two years ago to include oil and gas facilities, amid a fight over an oil pipeline that terminates in St. James. The new bill will expand the list to include flood control infrastructure, and further stiffen the penalties for trespassing to three to 15 years if the parish or state is under an emergency order. Louisiana is under multiple such orders, including one for the storm that just roared across the state, and another declared by Edwards in response to the coronavirus pandemic.

The bill's author, state Rep. Jerome Zeringue, a Republican, said he introduced the legislation at the request of the Association of Levee Boards of Louisiana, "to put more teeth into current legislation."

He said a judge still has the discretion to suspend any sentence issued under the law, and that his intent was for the emergency declarations to be flood related only and not for the pandemic. "I don't have a problem coming back next legislative session" to clarify the language as specific to flooding only, he said.

But civil libertarians and environmental advocates say the bill expands an already vague law that imposes unconstitutional constraints on the rights of residents like Lavigne, who have been fighting petrochemical infrastructure.

"Louisiana has a massive, extensive levee system and a lot of these structures have walkways on them," said Pamela Spees, a senior staff attorney at the Center for Constitutional Rights, who represents Lavigne and others in a constitutional challenge filed last year to the 2018 law.

"Now they're criminalizing protests on these levees," Spees said.

The bill comes as three other states have enacted laws in the midst of the coronavirus pandemic that mirror Louisiana's 2018 legislation, imposing harsh penalties for trespassing on pipeline property. At least four other states have such bills pending, according to Connor Gibson, a researcher with Greenpeace USA, part of a wave of legislation that began with a law enacted in Oklahoma in 2017. The oil and gas industry has been integral to drafting and passing the bills in many states.

Last week, a collection of advocacy organizations and community groups—including one Lavigne started—sent a letter to Edwards urging him to veto the legislation, saying "The bill would have an unacceptable chilling effect on free speech by requiring outrageously harsh new prison sentences for a person's mere presence at a critical infrastructure facility."

The letter also said the bill would particularly harm black residents, whose communities are home to a disproportionate share of Louisiana's petrochemical development and the toxic pollution it produces.

While the bill was introduced in February, legislators passed it after the police killing of George Floyd in Minneapolis, as protests spread across the nation over police violence against African Americans.

A 10-mile stretch of the Mississippi River by Lavigne's house, where the chemical complex is planned, is already home to at least two ammonia plants and four oil terminals and tank farms, and that's just one side of the river. Several more industrial sites are under development.

African American residents represent a majority in this district of the parish, and advocates say that's no coincidence. 

"They choose poor black areas to put their poison in, and that's poisoning, and that's murder," Lavigne said by phone. She said she'd asked Edwards to block the new complex, which is planned by Taiwanese-based Formosa Plastics Group, and the governor said he'd conduct a health study.

"He didn't tell me yes. He didn't tell me no. When he told me he was going to do a health study, I got my answer right there," she said. "That means that plant is coming. That means I'm not thinking about you."

The Sunshine Project is a proposed $9.4 billion petrochemical complex a few miles from Lavigne's house. An analysis by ProPublica found the complex could more than triple the level of cancer-causing chemicals that residents of St. James are exposed to. It also found that the area around the site is already more saturated with those toxins than more than 99 percent of industrialized areas in the country.

Lavigne was involved with a community group when Edwards announced the project in 2018, she said, but no one seemed to think they could do anything to stop the development.

"They were acting like it was a done deal," she said. "So I prayed and asked God what I should do. And he said I should fight. So that's what I did."

She started holding meetings with neighbors in her house and in her garage, and retired from her job teaching special education at the local high school so she could devote herself to the cause. Lavigne came up with a name for her new group—RISE St. James—and organized a march in November 2018. Along the way, the group raised enough questions about another facility planned for the area that the company behind it eventually withdrew its proposal.

Sharon Lavigne (right) started a community group called RISE St. James to resist a $9.4 billion petrochemical complex a few miles from Lavigne's house. Courtesy of Sharon Lavigne

Sharon Lavigne (right) started a community group called RISE St. James to resist a $9.4 billion petrochemical complex a few miles from Lavigne’s house. Courtesy of Sharon Lavigne

Then, late last year, her group learned that Formosa had discovered the burial site on the land beneath the site. Lavigne's family has lived in St. James Parish as far back as she knows, she said, to her grandparents' lifetimes, at least.

"We felt like those were our ancestors in that grave site," she said, adding that she and other RISE members began visiting the site to lay flowers, and to draw attention to their fight against Formosa.

As it happened, a pipeline had been constructed through the land years earlier. Lavigne said she didn't realize she was trespassing by entering the area. But in February, she said, a sheriff's deputy came to her house to tell her Formosa didn't want her on the land, or on the nearby levee. The St. James Parish Sheriff's Office did not respond to requests for comment.

Because of the pipeline's presence, she could face up to five years under the 2018 law for trespassing, even without the new bill awaiting action from Edwards.

"You couldn't have made it up to illustrate it any clearer how absurd this law is," Spees said.

Lavigne didn't even know the new bill had been introduced until late May, when a reporter from HuffPost, which first reported on the bill, told her about it.

"My stomach just turned, it was sick inside," she said. "Just to know what they're doing to us."

As Lavigne spoke by phone Sunday from her kitchen, while cutting corn into a pot to cook with shrimp and smoked sausage, tropical storm Cristobal, the cause of one emergency order, was beginning to sprinkle rain on her home. In the background, the cause of another emergency order, the pandemic, was continuing to spread.

St. James Parish and other parts of "Cancer Alley" have faced high death rates from the coronavirus. One of Lavigne's friends died from the virus, while several others contracted it but recovered.

In April, Lavigne published a Facebook Live video from atop the levee by the Formosa site. In the video, she read aloud from a study by Harvard University's School of Public Health that found people who are exposed to high levels of air pollution are more likely to die after being infected by the coronavirus. She pulled the mask she wore below her mouth to speak, and used a microphone with a long cord connected to the camera to maintain her social distance from the videographer.

Even before the protests of the last few weeks, the pandemic heightened racial justice concerns across the country and in Louisiana. More than half the state's Covid-19 deaths have been among African Americans, while only about a third of state residents are black.

Robert Taylor, who lives 25 miles downriver in St. John the Baptist Parish, where he's been fighting a chemical plant near his home, was outraged when he learned the EPA had suspended environmental laws amid the pandemic.  

"They shut this whole country down, they shut the schools down, they shut the church down. I couldn't get a haircut. But they didn't shut Denka down," he said by phone, referring to the chemical plant. "And the people who are living here next to it, they're dying at the highest rates. And what did the United States government do? They took off all the restraints, they can pollute as much as they want to."

Taylor, who is black, describes his community as a sacrifice zone, with predominantly black residents who are exposed to a chemical, produced by the plant, that the EPA deems "likely to be carcinogenic." 

Denka Corporation did not immediately reply to requests for comment, but on a company website says it has voluntarily reduced emissions from the plant and that "there is no evidence to suggest Denka's operations are harmful to local residents."

Zeringue, the sponsor of the bill, said he had not discussed the legislation with Formosa or anyone from the energy industry. Among those supporting the bill as it moved through the Legislature, though, was the Louisiana Landowners Association, which represents oil and gas producers, among other developers.

Janile Parks, Director of Community and Government Relations for FG LA LLC, a subsidiary of Formosa, said in an email that the company "had nothing to do with the introduction or passage of this legislation."

Anne Rolfes, founding director of the Louisiana Bucket Brigade, an activist group that has fought oil and gas development in the region and worked with Lavigne, Taylor and other residents, pointed back to the 2018 legislation, which was passed during the fight over the oil pipeline, as a reason they believe the new bill is also targeting the activists.

"A couple of years later what do we have? People in St. James Parish are standing up really strongly to protect themselves from Formosa Plastics and what happens? They pass a bill, saying not only can you not go on the site, but you can't go on the levee near the site," said Rolfes, who is white. "And I can tell you that is exactly where the residents have been going."

She added, "All these women are over 60, and this is what these guys do," she said. "Honestly, how scared are they of them?"

In Louisiana and in many other states, people of color have been at the front of campaigns to block fossil fuel infrastructure. The wave of laws stiffening penalties for trespassing on infrastructure started with a bill in Oklahoma proposed in response to the encampment at the Standing Rock Sioux Reservation. Oklahoma at the time was the site of an indigenous-led opposition to a pipeline there.

Cherri Foytlin, who identified herself as of indigenous, Mexican and African American descent, was among those who led the fight against the Bayou Bridge pipeline in Louisiana in 2018. When the law went into effect that year, she was among a group of people arrested under the new authority. She and the others have yet to be charged—prosecutors can file charges years after the arrests—and she said facing felony charges takes a toll.

"It's not fun having them hold them over your head," she said.

She's now moved to New Mexico to get away from some of the hostility she faced for her resistance to the pipeline, which was eventually completed, but she travels back to Louisiana periodically to continue her activism there.

"As they're enacting laws to quote, unquote, protect the infrastructure, what they're doing is they're going to end up over-policing," she said. "And that's my biggest worry, that they are using these sorts of laws not just to go after protests, but to over-police people who are just on the ground expressing their dissatisfaction with being poisoned on the daily."

Lavigne has been careful to stay off the Formosa property since the company told her she was trespassing. Last week, Spees sent a letter on behalf of RISE St. James to Formosa's lawyer, requesting access to the burial site for a ceremony to commemorate Juneteenth, the holiday that celebrates the liberation of slaves after the Civil War. There has yet to be a response.

"I don't want to go to jail," Lavigne said. "I wouldn't do any good in jail."

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