When Critical Stops Meaning Critical: The Expansion of Tennessee’s Critical Infrastructure Statute
The Tennessee legislature has passed a bill that would include farms in the definition of critical infrastructure. But at what cost?
On January 21 2021, state senator Paul Rose introduced SB 285, which expanded Tennessee’s provisions on “critical infrastructure vandalism” by adding “farm” to the definition of “critical infrastructure.” Rose is no stranger to the interests of the agricultural industry. Despite being in office for a mere two years, Rose is already Vice-Chair of the Commerce, Labor, Transportation and Agricultural Subcommittee and a member of the Senate Energy, Agriculture and Natural Resources Committee.
When one thinks of critical infrastructure, a few things come to mind: railroads, power stations, water treatment facilities, etc. The facilities that we collectively need to move goods, survive, and keep us safe. For years, Tennessee’s legislature adhered to this common sense notion. For years, and without issue, critical infrastructure was defined as follows:
- (1) Telephone, telegraph, television, internet, or other telecommunication services;
- (2) Electric, heat, natural gas, or other power or energy services;
- (3) The distribution of crude or refined liquid petroleum products or natural gas, and the pipelines, pumping stations, terminals, and equipment necessary for operation of the facility;
- (4) Water, wastewater, or sewer services; and
- (5) Railroads and other transportation services.
Furthermore, the Tennessee Department of Homeland Security goes on to provide its own clarification of what is meant by “Critical Infrastructure”. In specific, the DOHS defines it as as “any assets that the destruction or exploitation of can:
- Cause adverse health effects or large mass casualties.
- Impair federal departments and agencies.
- Undermine state and local government.
- Damage the private sector’s capability to deliver essential services.
- Negatively affect the economy.
- Undermine the public’s morale and confidence.”
Both existing definitions, through the legislature and the Department of Homeland Security, have no indication that farms should be included in the definition.
But that was all before Big Ag had its say. This is because everyday, in some ways that are less obvious than others, Big Ag quietly tinkers with our collective and fundamental sense of justice. It should be easy to defend the notion that laws should reflect their true intentions rather than reflect the motives of corporate entities concerned exclusively with profit rather than public good. However, this is seldom the case and Big Ag’s influence is powerful if left unchecked by those willing to undertake it’s critical examination.
The change looks as follows:
“Farm” is defined in §43-26-102 as “the land, buildings, and machinery used in the commercial production of farm products and nursery stock.” Under §39-14-411, “critical infrastructure vandalism” includes knowingly “injuring” “interrupting,” or “interfering with” CI, whether the infrastructure is operative or under construction. The offense is a Class E felony, punishable by up to six years in prison and a $3,000 fine.
If you’re wondering what “interfere” means in the context of this law, that is a good question. The definition of “interfere” is left completely out of the statute, dangerously leaving it open to nearly any interpretation. This type of vagueness has been challenged in the past under the theory of “Void for Vagueness.” It is the idea that a law is invalid because it is not sufficiently clear. Laws are usually found to be void for vagueness if the law does not reasonably specify the type of conduct that is punishable. There is a strong argument here that this proposed amendment could meet that definition. There is a lack of notice as to what “interfering with a farm” could be. Would photos, recording, or peacefully protesting on public property where such conduct is permitted cause an interference? What is punishable conduct, particularly conduct punishable by jail, should be defined in advance, and this law fails to do so.
So what does this mean? For those who are seeking to expose issues from illegal animal cruelty to farm worker abuse to food safety violations - - it’s bad news. In the absence of any known threats to the food supply, the motivation behind this amendment is clear: to stop activists from exposing criminal activity in farms by raising the stakes with the threats of a felony charge and a long prison sentence.
Farms are already protected from illegal behavior that could interfere with their functioning and daily operations through general trespass laws and, in the case of rescued animals, theft and larceny laws. There is no exemption contained in the Tennessee’s Trespass statute under Section 39-14-405 that excludes farms. There is no exemption in Tennessee’s Aggravated Trespass statute under Section 31-14-4056 that excludes farms either.
The current Critical Infrastructure Vandalism statute is clearly intended to designate “critical infrastructure” as infrastructure needed for the maintenance of telecommunications and essential services that generate power and movement of people. There is obviously a consensus that these infrastructures must be protected for the safety of those who rely upon them. These are clearly intended to be services that, if attacked, could prevent the free
movement of people or blackout of communication services. Farms, and in particular, large scale agricultural facilities, do not fit into these categories. The proposed statute protects only one thing: Big Ag and its ability to hide the truth from the public.
Passing this amendment has placed Tennessee at risk of a dangerous track record for amending laws to prevent constitutionally protected behaviors under the First Amendment. This is because the definition of “critical infrastructure” under 39-14-411 Critical Infrastructure Vandalism did not always include “gas and oil pipelines”. The change was signed into law just recently in May of 2019. The result is that it created new penalties for protests and demonstrations that "interrupt" or "interfere with" a pipeline or pipeline construction site. In fact, The International Center for Not-For-Profit Law added the bill to their US Protest Law Tracker as a law that “restricts the right to peaceful assembly”. Their methodology in defining a law that meets that criteria is as follows:
“A legal initiative “restricts” peaceful protest rights where it includes provisions that constrain or narrow the means, methods, or venues used by individuals seeking to participate in or facilitate a peaceful protest. In determining whether a provision “restricts” the right to peaceful protest, we consider whether the provision could punish, deter, or limit the scope of peaceful protest activities, taking into account both the text of the initiative and its context.”
Why does Big Ag continue to push for laws such as this one? Why does Big Ag continue to push for Ag Gag laws which heavily penalize those who reveal what truly goes on in these agricultural facilities? Those behind Big Ag know that, when the public is educated about what happens behind the scenes in these “farms,” the public is appalled and citizens demand laws that are designed to engender more humane treatment of animals. Putting aside the question of whether any form of agriculture that subjugates animals could ever be called humane, it is clearly the case that the average citizen - witnessing the crowded conditions in which chickens are kept, the intense confinement of calves for veal and dairy, the horrific confinement of pregnant sows in gestation crates - wants the law to change. Prop Two and Prop Twelve in California, laws that require cage-free hens and larger space for veal calves, were passed when activists revealed the horrific conditions in which these animals were confined. The foie gras bans in California and New York City were the result of actions by activists exposing the horrific cruelty involved in making foie gras. A ballot initiative in Colorado which requires animals to be permitted to live at least 25% of their natural lifespan, is the result of the exposure by activists of the cruel practices at consolidated feeding stations.
Clarity, truth and access to information should prevail over corporate interest. Passing the amendments in SB 285 is a step in the wrong direction. It’s up to us to keep marching forward.
By Yamina Sara Chekroun, Esq.
Yamina is a civil litigation attorney with a special interest in animal rights, consumer education and food safety.