Michael Foster, 53, is a mild-mannered mental health counselor and father of two from Seattle, with short-cropped silver hair and soft features.
But in a North Dakota court last October, prosecutors painted Foster as a ruthless killer and agent of chaos. The prosecution team compared him to the 9/11 hijackers who killed 2,996 people in the worst terror attack in history, and warned that he envisioned an anarchic future under Islamic religious law. Prosecutors even put him in a league with Ted Kaczynski, the so-called Unabomber whose 17-year bombing spree left three dead and injured 23.
Foster hadn’t killed anyone. He didn’t even injure anyone when, on Oct. 11, 2016, he put on a white hard hat and neon-yellow safety vest, grabbed some bolt cutters, and clipped the chain locking a fenced section of the Keystone Pipeline in Walhalla, North Dakota. Once inside the fence, Foster cranked a giant wheel-like valve until it closed, temporarily stopping the flow of tar sands oil.
“In order to preserve life as we know it, and civilization, and give us a fair chance and our kids a fair chance, I’m taking action as a citizen,” Foster told another activist, Sam Jessup, who live-streamed the action. “I am duty-bound.”
Foster’s action was part of a protest in solidarity with the indigenous activists fighting to stop construction of the Dakota Access Pipeline, which runs through a sacred water source at the Standing Rock Sioux Reservation on the other side of the state. Foster and Jessup did so in coordination with “valve turners” in four other states, timing their break-ins across the country to temporarily halt 15 percent of U.S. oil consumption.
Then came the legal crackdown.
In October, a judge convicted Foster and Jessup of felonies ― including criminal mischief and conspiracy to commit criminal mischief ― carrying maximum sentences of 11 to 26 years in prison. Earlier this month, the judge sentenced Foster to three years in prison; Jessup received two years of probation. (Other valve turners have faced up to 10 years in prison and $20,000 in fines.)
“They hit the trifecta: 9/11, the Unabomber, and that somehow our action was going to lead to Sharia law,” said Emily Johnston, 51, who is set to stand trial in May for turning a pipeline valve in Minnesota. “The theory being that if everyone just acted on what they believed in, it would be anarchy.”
That theory is now gaining some traction in Washington.
In October, 84 members of Congress, including four Democrats, sent Attorney General Jeff Sessions a letter urging him to find out whether the Department of Justice could prosecute pipeline saboteurs as terrorists. The Justice Department has yet to announce a decision, but said in November that it was “committed to vigorously prosecuting those who damage this critical energy infrastructure in violation of federal law.” Doing so would be a break from the Obama administration’s decision to let states handle such cases, rather than treating them as federal crimes.
The purpose of this law isn’t to wrap everybody up and send them to federal prison. It’s to scare people, to create fear. Will Potter, author of ‘Green Is The New Red’
But policymakers are sharpening their knives on the state level, too. Late last year, the conservative American Legislative Exchange Council drafted model legislation calling for severe punishments for anyone caught trespassing on or tampering with an oil, gas or chemical factory. The Critical Infrastructure Protection Act even includes a clause that any “conspirator” organization would be fined 10 times more than a trespasser, opening the door to crippling penalties for environmental groups.
Lawmakers in Ohio and Iowa are now considering bills based on the proposal. The Iowa bill is backed by Energy Transfer Partners, the company behind the Dakota Access Pipeline. In all, 31 states have considered 58 bills to crack down on protesters since November 2016, according to a database maintained by the International Center for Not-for-Profit Law. Eight have been enacted, and 28 are pending.
At a moment when the Trump administration is waging all-out war on environmentalism, macheting away regulations and gearing up for a massive pipeline construction spree, “eco-terrorism” is re-emerging as a boogeyman in a way it hasn’t since right after 9/11.
There are already laws in place to send environmentalists who tamper with fossil fuel infrastructure to jail, as Foster’s case demonstrates. But if conservative lawmakers get their way, new laws could undermine the environmental movement ― just as scientists say the humans are running out of time to make the changes needed to stave off the worst effects of climate change.
Protesting After The Patriot Act
Targeting environmentalists as domestic security threats goes back nearly two decades. Radical environmental groups experienced their heydays in the 1990s, but became victims of their own success as concerns over pollution and animal cruelty went mainstream.
But even as the influence of these groups waned, a scorched-earth crackdown loomed. President George W. Bush signed the USA Patriot Act in October 2001, just over a month after the 9/11 attacks. The law expanded the government’s view of domestic terror suspects and granted law enforcement sweeping new powers to investigate organizations and individuals, including by seizing assets without any prior hearing or criminal charges.
“It’s about installing fear so they don’t go out and protest in the first place,” said Will Potter, author of the Green Is The New Red, while comparing ALEC’s recent bill to the actions taken after 9/11. “The purpose of this law isn’t to wrap everybody up and send them to federal prison. It’s to scare people, to create fear.”
Potter would know. In 2002, when he was a reporter working on the Chicago Tribune’s metro desk, two FBI agents arrived at his home to question him about an animal rights protest he and his girlfriend had participated in months earlier. Both had been arrested and charged with misdemeanor disorderly conduct after leaving flyers in a neighborhood where an insurance executive whose company covered animal laboratory testing lived. He says FBI agents, armed with new powers under the Patriot Act, threatened to add him to a domestic terror list if he didn’t become an informant on the group with which he protested. The officers threatened him, telling him they could “make your life very difficult for you,” having secured “more authority now to get things done and get down to business” after 9/11, Mother Jones reported in 2011.
Is this about just protecting some businesses? Or is this about this larger idea that the radical left is threatening America? Cas Mudde, Dutch political scientist
In 2005, John Lewis, then the FBI official in charge of domestic terrorism, ranked “eco-terrorism and animal-rights movement” activists ahead of radical Islamic extremists as the nation’s top domestic terror threat.
The agency began investigating Eric McDavid, a self-declared green anarchist, that same year. In a now-infamous case, the FBI recruited a mole to get close to McDavid and coax him into plotting a C4 bomb attack. He was arrested in January 2006, and spent a decade in prison.
Congress also quietly passed the Animal Enterprise Terrorism Act in 2005, a sweeping law that classified many forms of animal rights protest as terrorism. It was used to prosecute Lauren Gazzola, the U.S. coordinator for a campaign against an animal product testing, on six felony charges that included conspiracy to violate an earlier law meant to protect businesses from protestors.
The crackdown was at odds with any realistic threat these environmentalists might have posed. Less than 10 percent of all radical environmental and animal rights actions from 2003 to 2010 even included criminal activity, according to a study published in 2014 in the journal Studies in Conflict & Terrorism. Of those acts, 66 percent were vandalism, less than 15 percent were house visits, and just over 12 percent involved freeing animals from cages. About 4 percent were arsons, and 1.4 percent involved explosives. There were no assassinations.
Cas Mudde, a Dutch political scientist who co-authored the study on criminal activity amongst activists, points out that the attacks on environmentalists came at a time when many political protesters were speaking out against the Iraq War ― meaning environmentalists served as a sort of proxy for other left-leaning protest movements.
This is not unlike what we’re seeing now, Mudde said, noting that overlap between leftist activists and radical environmentalists makes it easy for conservatives to demonize both equally.
For example, Fox News hosts Tucker Carlson and Sean Hannity spent months inveighing against the so-called “antifa” and “alt left” movements, terms they use to refer to certain anti-fascist protester groups that rose up in response to increasingly vocal white nationalists in the U.S. Researchers who study extremists say “alt left” does not describe a real phenomenon.
Mudde said it could be especially telling to see how Republicans frame the laws to criminalize fossil fuel protest.
“Is this about just protecting some businesses?” he said. “Or is this about this larger idea that the radical left is threatening America?”
The surprise election of President Donald Trump in 2016 dashed any hopes that the so-called green scare was a thing of the past. Trump, who dismisses climate change and installed an EPA administrator who shares his ideological antagonism toward science, reversed regulations and announced plans to withdraw from the Paris climate accord.
The conditions primed the rise of a more militant environmental movement ― and for an even more militant crackdown.
In a provocative essay published in September in Foreign Policy, think tank scholar Jamie Bartlett argued that “formal, peaceful political activism — that all-important route to redress — isn’t working” to address pollution and that “the signs of growing radicalism in green circles are already there, if you know where to look.” He noted that hard-line environmental organizations are seeing a membership surge, and that local anti-fracking groups are growing faster than ever before.
In April, the Department of Homeland Security warned of attacks by eco-terrorists who “believe violence is justified” to stop the planned Diamond Pipeline from Oklahoma to Tennessee. But the report admitted that no current intelligence suggested any attack had actually been planned.
The oil and gas industry is fueling fears of impending eco-terrorist attacks. In October, the American Petroleum Institute disclosed that it was “working with the Trump administration on this issue, including the DOJ, the Federal Bureau of Investigation and the Pipeline and Hazardous Materials Safety Administration,” according to the trade publication Natural Gas Intelligence. API indicated that its lobbyists met with the FBI and other agencies to discuss “efforts related to pipeline security,” according to its final-quarter disclosure report from 2017.
The ALEC model bill is perhaps the clearest indication that “eco-terrorism” is back as a boogeyman on the right. When ALEC began shopping the bill around to state legislatures, it included a letter signed by a consortium of fossil fuel corporations and chemical manufacturers urging lawmakers to introduce bills based on the legislation to curtail the “growing and disturbing trend” of environmentalists attacking infrastructure.
The letter, which HuffPost obtained, listed five examples to back up the trend. One was the valve turners case. The others did not actually involve environmentalists. Instead, they were loosely bound by common threads of mental illness or workplace grievance:
Marathon Petroleum Corporation, the only individual company to sign the letter, declined to comment. The Edison Electric Institute, a trade group for utilities, said, “It is important for law enforcement agencies to have the ability to hold individuals and organizations accountable for any attempts to damage or sabotage critical infrastructure.”
In a bizarre response, a spokesman for the Energy Policy Network denied that the a coal-industry advocate signed the letter. He did not respond when sent screenshots and asked to comment on why the group’s name appeared in the signature of the letter.
The American Fuel & Petrochemical Manufacturers, a trade group, did not respond to questions about the examples listed in the letter, but defended its support for the ALEC legislation.
“Our highest priority is the welfare of our employees, surrounding communities and the environment, and sabotage against critical infrastructure can put this safety at risk,” Chet Thompson, the association’s president and chief executive, told HuffPost by email. “While AFPM defends peaceful protest, violence is never justified and cannot be condoned.”
The American Chemistry Council and the American Gas Association ― trade associations for chemical manufacturers and gas-burning utilities ― did not respond to requests for comment. ALEC did not reply to an email requesting an interview.
While industry groups quietly work to lay sharper legal snares for environmentalists, people like Johnston, the woman who turned a pipeline valve in Minnesota, are fighting to reshape the narrative over fossil fuel sabotage in court.
In October, a district court judge in Minnesota ruled that Johnston and her two co-defendants would be allowed to argue that the “necessity” of confronting climate change justified temporarily shutting down the pipeline. Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University, called the defense “extremely unusual,” according to InsideClimate News. But, if successful, it could set a legal precedent used in the past by political activists on issues including the Vietnam War, nuclear weapons and abortion.
Either way, Johnston said she is prepared to make an example of herself.
“I’m not afraid to go to jail,” she said. “I’m afraid of climate change.”
The full letter ALEC attached to its bill:
A Look Back At Standing Rock
A Look Back At Standing Rock