Sen. Mike Thompson, a Republican chairman of the Senate utility committee, said the Legislature should escalate penalties for trespassing on infrastructure facilities that include water, electric and natural gas distribution as well as a range of private businesses infrastructure. (Jan. 11, 2021, photo by Sherman Smith/Kansas Reflector)
TOPEKA — The Kansas Senate endorsed a bill Monday creating new crimes for damage of public or private infrastructure, and justified escalation in the criminal code by pointing to a need to deter radical environmental or justice protests.
Supporters of the measure were confident the four criminal acts ranging from misdemeanor trespassing of infrastructure facilities to felony offenses of aggravated trespassing, criminal damage to infrastructure and aggravated criminal damage to infrastructure would send the proper signal to people to stay clear of facilities essential to serving the public.
The list of designated facilities to be protected includes oil refineries, power plants, rubber manufacturing facilities, water plants, natural gas stations, transmission lines, propane storage facilities, broadband equipment, railroad or trucking facilities, steel plants and dams. It also would apply to above- and below-ground pipelines.
The bill took the unusual step of categorizing these infrastructure offenses under the state’s RICO statute. It resembles the Racketeer Influenced and Corrupt Organizations Act, which was created in 1970 by the federal government as a tool for eradicating organized crime and provides extended criminal penalties and a civil liability for actions considered part of an “ongoing criminal organization.”
“This bill is solid. There is a need for this bill,” said Sen. Mike Thompson, a Shawnee Republican and chairman of the Senate Utilities Committee. “There are proper ways in our society to protest things — peacefully. Part of his is to protect these young people. They may not be the sharpest Crayon in the box. Part of this is protecting people from their own ignorance.”
He said the legislation reflected actions of criminal justice protesters in the Pacific Northwest and of people opposed to the Dakota Access Pipeline, which led to more than 700 arrests and millions of dollars in extra law enforcement expenditures.
Senate Democrats attempted to have Senate Bill 172 referred to the Senate Judiciary Committee to clarify definitions in the legislation and to consider refining the criminal sentence tied to the offenses. The Senate deflected that motion and voted to place the bill on a list of measures ready for final action. If approved, it would be sent to the House.
Sen. Jeff Pittman, a Leavenworth Democrat, said the legislation needed more work because the felony offenses were tied to “the intent to damage, destroy, vandalize, deface or tamper with a critical infrastructure facility or impede or inhibit operations of the facility.” He said protecting infrastructure was a necessity, but a teenager with a spray paint can could be prosecuted under this bill if caught tagging a propane tank or railroad car.
“Here we are introducing four new crimes,” Pittman said. “These are severe penalties. We need to have laws that have teeth, but the penalty should match the crime. It seems as though this is far-reaching and broad. That disturbs me.”
He also said threading the state’s version of the racketeering law into the bill was “a bit ridiculous.”
Sen. Kellie Warren, a Leawood attorney and the GOP chair of the Senate Judiciary Committee, said people trespassing on these properties were unlikely to have based that decision on good intent.
“We need to send a message that you cannot improperly interfere with these facilities,” she said.
Sen. Robert Olson, an Olathe Republican who served more than 20 years on the WaterOne utility board, said the threat of infrastructure damage was real. He said someone could use an air compressor to push a pollutant into water lines and contaminate drinking water for hundreds of people in a neighborhood. He said people could “easily” do damage to these facilities.
However, he said nuclear power plants — Kansas’ only reactor is the Wolf Creek facility at Burlington — had five layers of containment and personnel had authorization to use lethal force against intruders.
“They’ve got sharpshooters to shoot to kill,” Olson said.
The bill was initially introduced at behest of the American Fuel and Petrochemicals Manufacturers and was supported by an array of private and public entities managing substantial infrastructure. Language imposing fines against trespassers who tamper with a pipeline was dropped in favor of the four criminal offenses and the racketeering mechanism capable of triggering financial damages.
Zack Pistora, who represents Kansas Sierra Club, said the organization didn’t advocate lawlessness or committing crimes in pursuit of environmental reform. The bill is unnecessary because crimes of trespassing, property damage and tampering with energy infrastructure such as pipelines exists, he said.
He said there was no “pressing need for increased levels of punishments, as there is no indication or prospect for increased levels of such crimes, especially as it relates to critical infrastructure, in Kansas.” He said use of an aggravated trespassing statute could lead to unintended consequences related to accidental infractions and penalties for legal free speech.
Kimberly Gencur Svaty, a lobbyist for Kansas municipal utilities who testified in support of the bill on behalf of a dozen utilities, said the legislation was necessary because trespass hadn’t been considered a serious offense in most jurisdictions. In many places, she said, there was no distinction between trespassing on a vacant lot and trespassing on a critical infrastructure facility.
“The prosecution of trespass on utility-related property would perhaps make trespass a more high-risk proposition in the eyes of those with ill-intent,” Svaty said.
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