Law Opinion

Judges not big on Big Oil's attempts to gag critics

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Krystal Two Bulls has been sued for protesting against the Dakota Access Pipeline (Screenshot via YouTube)

The fossil fuel industry’s sham use of strategic lawsuits to silence environmental advocates while arguing that its climate denial is protected speech is not playing well in U.S. courts, writes Emily Sanders.

In 2018, Krystal Two Bulls received notice that she was being sued for criminal conspiracy.

Two Bulls, who is Oglala Lakota and North Cheyenne, has been organising for environmental justice for much of her life. She was raised on the North Cheyenne Indian Reservation of Lame Deer, Montana — part of a community that had resisted coal developments for nearly 40 years.

In 2016, she helped defeat Arch Coal’s plans to build a massive strip mining operation on the reservation’s border. The project would’ve been one of the largest coal mines in the United States. 

Later that same year, Two Bulls received an urgent call for assistance from land and water protectors at Standing Rock, North Dakota, who were working to oppose the construction of the Dakota Access Pipeline which transports crude oil from North Dakota to Illinois.

When Two Bulls arrived, the conflict between protestors and local police was escalating. Her auntie, Dr Sara Jumping Eagle, had recently been arrested after standing in the path of a bulldozer set to dig up human remains at an ancestral burial site.

Two Bulls spent three-and-a-half months supporting and sustaining the camp – handling basic logistics like providing protestors with food, warm clothing and other necessities – all in the face of violence by state police. She then helped to launch the No DAPL Solidarity Campaign, a global movement to back Indigenous opposition to the pipeline. 

It wasn’t until a year after the camp was shut down that Two Bulls, who came to North Dakota on her own dime and left in debt, found out she was being sued for millions of dollars by pipeline developer, Energy Transfer Partners.

The charges were brought under the Racketeer Influenced and Corrupt Organizations Act (RICO), a law originally designed to prosecute the mafia.

The company claimed that through her “calls to action,” including a statement on Greenpeace’s website asking 'all people from around the world to take action' and 'come stand with us' against the Dakota Access Pipeline, Two Bulls and others had conspired to interfere with Energy Transfer’s business operations and engaged in organised crime. The individuals and groups’ opposition, the company claimed, was defamatory and cost key investments in its pipeline.

In 2017, The Intercept reported on documents leaked from former personnel at international security firm TigerSwan, revealing that Energy Transfer had paid the firm to use military-style surveillance and infiltration tactics to gather information that could be deployed in a RICO lawsuit against the anti-pipeline activists. 

Two Bulls is just one of many victims of the fossil fuel industry’s use of SLAPPs – strategic lawsuits against public participation – to silence and intimidate its critics. A report released last month by legal advocacy nonprofit EarthRights International identified 152 instances of legal and judicial harassment by fossil fuel corporations to suppress dissent in the United States over the past ten years, including 93 SLAPP lawsuits. 

Just last week, a California oil industry trade association paid nearly US$650,000 (AU$1,039,000) in fees to the city of Los Angeles and several environmental advocacy groups the company had targeted in court for years following the city’s implementation of new environmental safety requirements for drilling applicants.

After declaring bankruptcy, the California Independent Petroleum Association (CIPA) was allowed to pay only a fraction of a judgment initially awarded to the city and groups by a trial court that ruled the lawsuit was a SLAPP.

Deputy general counsel at Greenpeace USA, Deepa Padmanabha, said: 

“With the strengthening of our movements, the revelation of how long the fossil fuel industry has been aware of how their practices impact and contribute to climate change, and the rise of legal cases against oil and gas corporations, these companies are becoming more desperate to silence the voices of their critics.”

A wide range of concerned groups, from community organisers to members of Congress, are taking up the fight against SLAPPs.

Last month, the House Oversight Subcommittee on Civil Rights and Civil Liberties held a hearing to expose the fossil fuel industry’s use of SLAPPs and its backing of bills to criminalise protest. The committee’s witnesses, including Padmanabha and others, explained that corporations were using these tactics to suppress activists’ ability to voice dissent freely.

The day after the hearing, Congressman Jamie Raskin, the subcommittee chairman, introduced the SLAPP Protection Act of 2022 — the first federal legislation that would 'establish a procedure to dismiss, punish, and deter strategic lawsuits against public participation...'

Advocates say the bill could create sorely needed protection for individuals and community groups who speak out against fossil fuel infrastructure, and an important safeguard for free speech at large.

According to EarthRights International, the proposed legislation would provide a federal mechanism for SLAPP suits to be quickly identified and dismissed while balancing the rights of plaintiffs and defendants. The bill would also force those bringing SLAPP suits to pay their opponents’ legal fees if the lawsuit is proven to have abusive intent. 

Advocacy organisations are also tackling the issue. EarthRights is a member of the Protect the Protest coalition, an initiative created in response to the rise of SLAPP suits.

Kirk Herbertson, a senior policy advisor at EarthRights International, said: 

“If a corporation can sue a nonprofit organisation out of business for criticising its activities, then that’s extremely dangerous.”

About a year after Energy Transfer filed its lawsuit against Two Bulls and others, a district court judge in North Dakota dismissed the case, denying the RICO claims with prejudice — meaning the company could not refile those claims. 

RICO claims, which can triple the amount of damages sought in a SLAPP suit, can be financially devastating — even for a larger, well-resourced organisation like Greenpeace USA, which was named in the original suit.

While Energy Transfer’s RICO claims against the organisation have been dismissed, the pipeline company filed a second lawsuit in North Dakota state court, which is scheduled for trial in June 2023. In its current case, which also names Two Bulls as a defendant, Energy Transfer argues that Greenpeace USA conspired with others to defame, trespass and interfere with business relationships, among many other charges. 

Energy Transfer did not respond to a request for comment.

Fighting these lawsuits not only takes vast amounts of money, but also time and energy. Padmanabha said that since mid-2016, her career has been almost entirely dedicated to advocating against corporate lawfare – corporations’ use of the legal system to attack opponents – preventing her from engaging more in the dire work needed to prevent climate catastrophe. 

Padmanabha said the lawsuits are also intended to intimidate and deter individuals and lesser-resourced, smaller groups from speaking out:

“The next decade is so critical in our fight against climate change. And if we didn’t have to deal with these lawsuits, we would really be putting every penny and every minute we have into fighting the existential threat of climate change.”

Karen Savage was working in Massachusetts as a middle-school math teacher when she got hit with a SLAPP suit. In 2013, she and another environmental activist, Cherri Foytlin, wrote an unpaid article for the Huffington Post about a so-called independent study from scientific consulting firm ChemRisk.

The study had claimed that there was no connection between chemicals released during BP's Deepwater Horizon oil spill and the serious health problems reported by cleanup workers and coastal residents in its aftermath. 

As their reporting revealed, ChemRisk – a company with a long history of working with polluters, including defendant Pacific Gas and Electric Company (PG&E) in the infamous Erin Brockovich case – produced “science” on behalf of BP that the oil major could use to defend itself from liability in court. 

After the article was published, the Huffington Post received an immediate request from the company to retract it, which they forwarded on to Cherri Foytlin. (In a note on her Facebook page, Foytlin told ChemRisk to 'kiss my derriere'.)

Foytlin’s Facebook post, along with many other social media posts from the two writers, appeared in a defamation suit filed against them by ChemRisk in New York state. The company claimed their article contained falsehoods – though, according to Savage, ChemRisk couldn’t explain what those falsehoods were – and that as long as it was kept online, the article would '... continue to do substantial harm to ChemRisk’s reputation'

Said Savage:

“Basically what they wanted to do was shut us up. It was an intimidation tactic.” 

With pro-bono representation, Savage and Foytlin were able to get the suit dismissed in New York. Within two weeks, the company refiled in Massachusetts, where Savage lived. At one point, she said, the company’s lawyers even attempted to serve her in her classroom while she was teaching.

Cardno ChemRisk, the parent company of ChemRisk, did not respond to a request for comment.

The case was eventually dismissed under the state’s anti-SLAPP laws and ChemRisk was forced to pay Savage's and Foytlin’s attorney’s fees. Savage said she believes that ChemRisk never sued them in Louisiana, where Foytlin lived, because of the three states Louisiana’s anti-SLAPP laws were the strongest and the suit would’ve been dismissed faster and with greater consequences for the company. 

That tactic of searching for the most favourable court – called forum shopping – is something Raskin’s anti-SLAPP statute would address by creating a standard applicable across the United States.

At present, 32 states and the District of Columbia have anti-SLAPP laws, yet they have varying degrees of efficacy. And while the fate of a federal bill could depend on the outcome of midterm elections, most state anti-SLAPP laws have passed with bipartisan support.

Savage – who has since become a journalist and has written for DeSmog about being arrested by pipeline security while reporting – said she hopes Raskin’s bill would help put an end to this tactic.

Savage said:

“If you know the truth, and you’ve got factual backup, and someone comes at you, you can’t back down on that. The whole reason they’re coming at you is because they also know that you have the truth.”

While the fossil fuel industry works to stamp out the speech of environmental advocates, on the one hand, it is now arguing that its climate denial is protected speech, on the other.

At the same time that Raskin held his hearing into the fossil fuel industry’s assault on the First Amendment, the House Natural Resources Oversight and Investigations Subcommittee held a separate hearing to examine how public relations firms market climate disinformation and delay action on behalf of Big Oil.

In that hearing, chaired by Congresswoman Katie Porter, Republicans and their witness argued that the committee was attacking corporations’ right to free speech. 

Amy Westervelt recently wrote:

'Taken together, the two [hearings] are a perfect illustration of the industry’s First Amendment strategy: expand free speech for corporations, curb it for citizens.' 

The fossil fuel industry, she explained, has been developing the argument that its public statements on climate policy are protected speech since the late 1960s, all while working to expand the right of corporations to buy influence over politics behind the scenes.

In a paradoxical twist, fossil fuel companies are even attempting to wield existing anti-SLAPP laws to shield themselves from legal accountability.

After a Massachusetts court ruled that Attorney-General Maura Healey’s climate fraud lawsuit against ExxonMobil (Exxon) could proceed in state court, the oil giant told the state’s Supreme Court that the case was actually a conspiracy to silence Exxon’s views on climate policy in violation of the state’s anti-SLAPP statute. But so far, the idea that Exxon's fraud is protected free speech has not gone over well with judges. 

Herbertson of EarthRights International said:

“We have seen that the industry is trying to build up this argument around a conspiracy against them and it’s coming up in things like anti-SLAPP motions in courts. But they have continued to fail in that effort so far.”

Raskin’s newly proposed federal legislation, he said, is clearly and explicitly designed to be used by real people and organisations that have been victims of SLAPP suits, and will be harder for corporations to use in their own defence.

But if you ask Padmanabha of Greenpeace, the industry’s tactics are on thin ice.

Said Padmanabha:

“There is this recognition and an increasing awareness that speech should not be bought. And I think that the [Oversight Civil Rights and Civil Liberties] hearing and the bill that followed it are really just emblematic examples of how these attempts to control the narrative are crumbling.”

Emily Sanders is editorial lead at the Center for Climate Integrity and is based in New York City. This piece was originally co-published by DeSmog and ExxonKnews, a project of the Center for Climate Integrity, under the title 'How Fossil Fuel Corporations Are Trying to Sue Their Critics Into Silence'.

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