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Oil and Gas Update

West Virginia Enhances Penalties for Trespass and Damages to Critical Infrastructure

April 1, 2020

By: Robert G. McLusky

The West Virginia Legislature has adopted a West Virginia Critical Infrastructure Protection Act. See W. Va. Code §61-10-34 (copy available at https://legiscan.com/WV/text/HB4615/2020). The new Act establishes three categories of criminal actions concerning “critical infrastructure”.

  1. Trespass: It is a misdemeanor to “willfully and knowingly … enter[] property containing a critical infrastructure facility” without the owner’s permission. The penalties are a fine of $250-1,000 and jail of 30 days to 1 year.  Further, if the “intent of the trespasser is to willfully damage, destroy, vandalize, deface, tamper with equipment, or impede or inhibit operations of the critical infrastructure facility” then s/he is also guilty of a misdemeanor and subject to a fine of $100-1,000 and up to 1 year in jail. W.Va. Code §61-10-34 (c)(1)
  2. Willful damage to equipment at a critical infrastructure facility: It is a felony to “willfully damage[], destroy, vandalize, deface or tamper with equipment in a critical infrastructure facility causing damage in excess of $2,500” and is subject to a fine of $1,000-5,000 and 1-5 years in state prison. W.Va. Code §61-10-(c)(2)
  3. Conspiracy to Trespass or Damage: It is a misdemeanor to conspire to violate the terms of §61-10-34(c)(1) where the trespass actually occurs. The penalty is a fine of $2,500-10,000. No jail time is provided. It is a felony to conspire to willfully damage equipment where damage in excess of $2,500 actually occurs. Violators are subject to fines of $5,000-20,000. No jail time is provided.

Likewise, the Act provides that “any person arrested or convicted” under the Act may be held civilly liable for property damages.  

“Critical infrastructure facility” is defined to include a long list of facilities that include natural gas distribution and processing facilities, dams, and water intakes, but the criminal provisions apply only if the facility is “completely enclosed” by fencing or other barriers, or if clearly marked with signs reasonably likely to inform intruders that entry is forbidden without site authorization.
The Act does NOT apply to otherwise lawful picketing, pamphleting, union organizing, “monitoring or attentive[sic] to compliance with public or worker safety laws or wage and hour requirements,” or other exercises of the right to free speech and assembly.  The WV Environmental Council and others have urged the Governor to veto the bill. See https://wvecouncil.org/action-needed-tell-governor-justice-to-veto-hb4615/


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