Climate activist's fight against 'terrorism' sentence could impact the future of protests

Jessica Reznicek is serving eight years for damaging the Dakota Access Pipeline.

April 28, 2022, 5:11 AM

In the fall of 2016, under the cover of darkness, Jessica Reznicek had a singular focus: to halt the construction of the Dakota Access Pipeline. At valve sites across America's heartland, she snuck through security fences, set fire to equipment, and used chemicals to burn holes in the pipeline itself.

To Reznicek, a veteran climate activist, the damage was justified: a nonviolent act of civil disobedience in pursuit of saving the planet. The Justice Department saw it differently. After Reznicek publicly acknowledged her crimes and entered a guilty plea, federal prosecutors subsequently persuaded a judge to apply a sentencing increase known as the "terrorism enhancement" against her, putting her behind bars for eight years.

The enhancement was applied "even though no person was ever hurt, no person was intended to be hurt, she wasn't charged with terrorism, and she didn't plead guilty to terrorism," said Bill Quigley, Reznicek's attorney and a professor emeritus at the Loyola University New Orleans Law School. "The terrorism enhancement doubled her amount of time in prison, which is troubling."

Next month, when a panel of 8th Circuit Court of Appeals judges hears Reznicek's appeal, the terrorism enhancement will take center stage. Her case has emerged as a potential watershed moment in the eco-extremism movement, galvanizing free-speech advocates and renewing calls for reform. And the outcome could reverberate down through future American protest movements.

Most frequently used against violent extremists or those with ties to foreign terrorist organizations, the terrorism enhancement is praised by national security officials and prosecutors as an effective tool of deterrence -- a stiff penalty meant to discourage others from engaging in similar behavior. But critics say the use of the enhancement against Reznicek reflects a broader push from the powerful oil industry to level harsh penalties against activists who target energy infrastructure.

At a time when domestic violent extremism is on the rise, experts say Reznicek's appeal presents a fresh opportunity to reexamine how terrorism cases are prosecuted -- and who deserves to be labeled a terrorist.

Iowa homecoming

Long before Reznicek committed herself to a life of environmental activism, the Iowa native felt a deep connection to nature. In an interview with ABC News' Iowa affiliate, WOI, shortly after her sentencing, Reznicek described a childhood spent swimming in a local river, which she called her sanctuary.

"I've carried that love with me all my life," she said. "And I've also witnessed that desecration and the pollution that has occurred during my lifetime."

She described a spiritual calling that eventually led her to fight the construction of the Dakota Access Pipeline, an oil conduit that would eventually run more than 1,000 miles from North Dakota to Illinois. Beginning in April 2016, thousands of Native American and environmental activists gathered to protest the project. Over time, Reznicek's actions grew increasingly dangerous.

"I entered the valve sites multiple times in multiple locations on multiple days," Reznicek told WOI. "Each time, there was a process of preparation for that, knowing full well what the legal consequences were."

PHOTO: In this Aug. 30, 2016, file photo, activist Jessica Reznicek talks with Lee County Sheriff's Deputy Steve Sproul while conducting a personal occupation and protesting the Bakken pipeline, at a pipeline construction site, near Keokuk, Iowa.
In this Aug. 30, 2016, file photo, activist Jessica Reznicek talks with Lee County Sheriff's Deputy Steve Sproul while conducting a personal occupation and protesting the Bakken pipeline, at a pipeline construction site, along the Mississippi River Road near Keokuk, Iowa.
John Lovretta/The Hawk Eye via AP, FILE

In public and in court, Reznicek admitted to her actions -- which included setting fire to multiple construction vehicles -- and encouraged others to follow suit. She never hurt another person and said she never targeted human life. But her actions led to a delay in the pipeline's construction and more than $3 million in damages.

"Everybody's afraid of these environmental groups and fear that it might look bad if you fight back with these people," said Kelcy Warren, CEO OF Energy Transfer Partners, the company building the Dakota Access Pipeline, during a cable news appearance in August 2017. "But what they did to us is wrong, and they are going to pay for it."

In February 2021, prosecutors secured a guilty plea from Reznicek on one felony count of conspiracy to damage an energy facility. Reznicek said she was prepared to serve time in prison, but she and her legal team expected "somewhere in the neighborhood of three or four years," according to Quigley.

Reznicek's aggressive brand of protest proved legally perilous: in June 2021, a federal judge handed her a hefty prison sentence and a damning new label: domestic terrorist.

Section 3A 1.4: The terrorism enhancement

In the wake of the 1995 Oklahoma City bombing, Congress enacted tougher penalties to intentionally deter acts of "intimidation or coercion" aimed at the government or civilian population. In the 1990s and early 2000s, multiple individuals associated with groups like the Earth Liberation Front faced terrorism-related sentences in connection with a string of arsons, including one that burned down a planned ski resort in Vail, Colorado.

"When an individual or group of individuals use an explosive device or an incendiary device, engage in acts of targeted violence, they have crossed the line," said John Cohen, an ABC News contributor and former senior official in the Department of Homeland Security, describing the intention of the harsher penalties.

"They should expect -- regardless of how noble their cause -- that they will be investigated, arrested, prosecuted, and, if convicted, incarcerated as terrorists," Cohen said.

But critics complain that the law is too broad and too inconsistently applied. Terrorism sentences have historically been used against defendants with ties to ISIS or al-Qaida, or to violent domestic extremists like Cesar Sayoc, who was convicted in 2018 for mailing pipe bombs to members of Congress.

Notably, prosecutors did not seek terrorism enhancements in several other high-profile cases. Neither Dylann Roof, who pled guilty to massacring nine people at a Charleston bible study, nor James Fields, who was convicted of killing a Charlottesville demonstrator with his car, were sentenced with the terrorism enhancement.

"While [prosecutors] try to be consistent, they'll try to be fair, obviously, there's going to be different jurisdictions, different groups," DOJ federal prosecutor Joe Moreno told ABC News. "And ultimately, you're never going to get a system where it's uniformly applied everywhere."

PHOTO: In this Sept. 4, 2016, file photo, Native Americans ride with raised fists to a sacred burial ground that was disturbed by bulldozers building the Dakota Access Pipeline (DAPL), near Cannon Ball, N.D.
In this Sept. 4, 2016, file photo, Native Americans ride with raised fists to a sacred burial ground that was disturbed by bulldozers building the Dakota Access Pipeline (DAPL), near the encampment where hundreds of people have gathered to join the Standing Rock Sioux Tribe's protest of the oil pipeline slated to cross the nearby Missouri River, near Cannon Ball, N.D.
Robyn Beck/AFP via Getty Images, FILE

More recently, of the 140 defendants sentenced to date in connection with the Jan. 6 attack on the U.S. Capitol, none have faced terrorism charges or sentences.

"In the court of common sense, individuals who went into the Capitol to engage in destructive behavior for the purposes of impeding congressional action and certifying the vote are, by its very definition, engaged in terrorism," Cohen said. "Unfortunately, under our current legal environment, it may not meet the elements of a terrorism offense."

Civil rights groups say prosecutors and judges have increasingly branded eco-saboteurs as terrorists, even as some resist applying that label in other more violent cases.

"I believe 100% that this is an overreach of power," said Sen. Ed Markey, D-Mass. "And it is absolutely imperative that we put guidelines in place."

Spotlight on Big Oil

Markey and other climate supporters say the oil and gas industry has spent years trying to silence opposition, lobbying state and federal lawmakers to enact tougher rules for protesters and increasing penalties for trespassing, damage and destruction at critical infrastructure sites.

"What the oil and gas industry wants is for these protesters to be charged as eco-terrorists, so that they are sentenced to longer time in prison as a deterrent against legitimate civil disobedience," Markey said. "And that's wrong."

Senator Ed Markey speaks during a Senate Commerce, Science and Transportation Committee hearing in Washington, D.C., on April 27, 2022.
Bloomberg via Getty Images

In the last five years, 17 states have adopted so-called critical infrastructure protection laws that do just that -- and 40 additional anti-protest bills are pending across the country, including a federal one.

"These laws introduced extraordinary penalties," said Elly Page, a senior legal adviser at the International Center for Not-for-Profit Law. "Protesters who even momentarily cross onto property that contains a pipeline ... can now face multiple years in prison."

"They're discouraging people from turning out and have making their voices heard about what's really the crisis of our time -- the climate crisis," Page said.

In 2017, 80 Republican and four Democratic members of Congress -- who over the course of their careers received a combined $36 million in campaign contributions from the oil and gas industry -- pressed the Justice Department to treat all eco-saboteurs as domestic terrorists.

The Department of Homeland Security later grouped some environmental activists -- the so-called pipeline "valve turners" -- with mass killers and white supremacists in a description of domestic threats, according to internal documents obtained through a Freedom of Information Act request by the nonprofit group Property of the People.

Meanwhile, Reznicek is in her first year behind bars as she prepares for her upcoming appeal of her sentence's terrorism enhancement. The Justice Department has argued that Reznicek's full sentence should remain in place, and that the evidence shows her conduct was targeting the government.

Supporters hope that a favorable outcome could set a new precedent for how activists are treated under the law. Quigley said that Reznicek's case will be watched closely by those involved in other American protest movements.

"Nuclear, civil rights, Black Lives Matter and others ... see this as a really hyper criminalization of consequences for people who protest," he said.

Moreno agreed that there's a lot on the line beyond Reznicek's prison term.

"It's going to be a difficult uphill battle for her" to get the sentencing enhancement removed, Moreno said. "But if she is able to make that distinction, it would be a very significant one in how these cases are approached."

This story is part of "Climate & Democracy," a series from the global journalism collaboration Covering Climate Now.