For American Corporations, Winning Is Not Enough
In a case filed in late August 2017, Energy Transfer Partners (ETP), the company that built the Dakota Access Pipeline, sued Greenpeace, Earth First!, BankTrack, other environmental groups, and unnamed “co-conspirators,” claiming that all are part of a vast criminal enterprise that incites eco-terrorism and engages in fraud, defamation, and property destruction. Since ETP was permitted to proceed with the pipeline project in early 2017 following an executive action from Donald Trump (though a full environmental review is still pending), one might well wonder why the company would still pursue litigation to silence its opponents.
The answer is clear: even when protests, such as the one led by the Standing Rock Sioux Tribe against the Dakota Access Pipeline, do not achieve their immediate goals, the publicity they engender can help turn the tide of public sentiment against the unfettered corporate exploitation of resources and its devastating environmental consequences. Activism also inspires other acts of resistance, such as the robust divestment campaign that has caused creditors and investors in ETP to reallocate millions of dollars elsewhere. For these reasons, ETP is still worried. And its response has been to adopt a controversial legal strategy—one led by Donald Trump’s “go-to” law firm, Kasowitz—that weaponizes litigation as a way of chilling constitutionally-protected protest.
ETP has adopted a controversial legal strategy—led by Trump’s ‘go-to’ law firm, Kasowitz—that weaponizes litigation as a way of chilling constitutionally-protected protest.
Such suits have been dubbed SLAPPs (Strategic Lawsuits Against Public Participation). They are typically brought by corporate plaintiffs against groups and activists with comparatively meager resources. The suits threaten foundational First Amendment principles by chilling and penalizing vigorous debate on issues of public interest. What is especially pernicious about such suits is that even when plaintiffs do not win in court—and indeed, many have little expectation of prevailing—they still “win” in a much larger sense. Namely, such suits cause activists to hemorrhage their limited resources fighting the litigation, and many are then also hit with increased operating expenses, such as higher costs of obtaining insurance, and dampened donor enthusiasm. Additionally, SLAPPs strike fear in the hearts of other would-be activists, who may not have the stomachs or pocketbooks to risk costly court battles and public smear campaigns, causing some to self-censor. Because the goal is to drain the defendants financially and emotionally, the companies are often not amenable to alternative dispute resolution: cases are far less likely to settle long before trial, as in ordinary litigation, and fees can easily run into the hundreds of thousands of dollars. EarthRights International’s director, Katie Redford, argues that companies are not satisfied with merely evading liability for the human costs and environmental damage they cause. To protect their economic interests, they are “mounting a sophisticated and well-funded campaign to target, sue, surveil, and harass the activists, lawyers, and NGOs that expose their harms,” a trend she calls “The New Corporate Playbook.” The resulting climate for activists is worrisome.
SLAPPs are not new. In fact, twenty-eight U.S. states (though notably not the federal government) and numerous other countries have already passed laws which attempt to prevent SLAPPs, mostly by creating mechanisms for such suits to be quickly dismissed at little cost to the defendant. What is relatively new is the decision by companies to ramp up the potential impact of their cases by bringing charges under the federal racketeering statute called RICO (Racketeer Influenced and Corrupt Organizations Act), a law which facilitates suits against sprawling criminal enterprises. Plus, RICO allows for litigants to claim treble damages when they allege to have been harmed by the actions of an established criminal organization.
The lawsuit against Greenpeace discredits the massive, Indigenous-led movement that coalesced around opposition to the pipeline.
ETP’s lawsuit against Greenpeace is unprecedented in the scale and audacity of its RICO charges. According to ETP’s press statement, the environmental groups “manufactured and disseminated materially false and misleading information about Energy Transfer and the Dakota Access Pipeline for the purpose of fraudulently inducing donations, interfering with pipeline construction activities and damaging Energy Transfer’s critical business and financial relationships.” The lawsuit maligns the organizations, calling them “putative not-for-profits and rogue eco-terrorist groups who employ patterns of criminal activity and campaigns of misinformation to target legitimate companies and industries with fabricated environmental claims and other purported misconduct” that have cost the company at least $300 million.
Michael Gerrard, faculty director of the Sabin Center for Climate Change Law at Columbia University, told Inside Climate News that “the Energy Transfer Partners lawsuit against Greenpeace is perhaps the most aggressive SLAPP-type suit that I’ve ever seen.” Abusing a law intended to target organized crime syndicates such as the Mafia, ETP’s RICO suit claims that the company is the victim of a huge conspiracy and has been sabotaged by a “network” of far-flung activists most of whom, in reality, have little or no connection besides opposing the same pipeline. ETP’s suit paints a sinister looking-glass version of precisely the expansive democratic mobilization and solidarity that has it and other corporations worried.
TigerSwan employed military counterinsurgency tactics to suppress pipeline opposition, referring to protestors as jihadists and the movement as an insurgency.
Greenpeace USA’s general counsel Tom Wetterer fired back at the company’s accusations and broader game plan. In a statement he said, “This has now become a pattern of harassment by corporate bullies, with Trump’s attorneys leading the way.” Wetterer is right to discern a new corporate strategy. Michael Bowe, a partner in the Kasowitz firm heading the litigation, told Bloomberg in August that “when Greenpeace directly attacks a company’s customers, financing, and business, that company has little choice but to legally defend itself.”
Notably, this is the second RICO case filed against Greenpeace by the same law firm. The first was filed in 2016 on behalf of Canadian firm Resolute Forest Products; it impugned Greenpeace’s advocacy against logging in Canada’s boreal forests. In that complaint, plaintiffs argued that “maximizing donations, not saving the environment, is Greenpeace’s true objective.” It further alleged that Greenpeace’s “campaigns are consistently based on sensational misinformation untethered to facts or science, but crafted instead to induce strong emotions and, thereby, donations.” A federal judge dismissed the lawsuit earlier this month, finding that “the defendants’ speech constituted the expression of opinion, or different viewpoints that [are] a vital part of our democracy.” The judge added that “Greenpeace’s publications at issue rely on scientific research or fact” and that “the academy, and not the courthouse, is the appropriate place to resolve scientific disagreements of this kind.” Kasowitz lawyer Bowe vowed to remedy the suit’s deficiencies rather than let the matter drop. As the process grinds on, Greenpeace will continue to expended resources and energy defending against the suit.
It is particularly offensive that ETP’s lawsuit against Greenpeace also aims to discredit the massive, Indigenous-led movement that coalesced around opposition to the pipeline. In focusing on environmental advocacy groups, the suit diminishes the place of Native leaders at the vanguard of the resistance. Indeed, it positions them as rubes, claiming that the predominately white organizations that rallied to their side were in fact taking advantage of them rather than following their lead. Greenpeace’s criminal enterprise, the suit claims, “exploited the impoverished Tribe’s cause for its own end,” and then “cynically planted radical, violent eco-terrorists on the ground amongst the protesters, and directly funded their operations and publicly urged their supporters to do the same.” Tara Houska, attorney and national campaigns director at the indigenous NGO Honor the Earth, told Democracy Now, “it was particularly disparaging and paternalistic that they basically characterized these organizations as misleading the tribe somehow and misleading the indigenous people.”
In a disturbing post-9/11 phenomenon, private security firms operate as a law unto themselves in collaboration with actual law enforcement, both at home and abroad.
Lawsuits are not the only method that corporations are pursuing to chill dissent. ETP hired TigerSwan, a private security contractor that employed military counterinsurgency tactics to suppress pipeline opposition. In TigerSwan internal communications uncovered by the Intercept, the security firm compared protestors to jihadists and the water protector movement to an insurgency. The ensuing coordination between TigerSwan and law enforcement blurred the distinctions between them. This squares with a disturbing post-9/11 phenomenon of private security firms operating as a law unto themselves in collaboration with actual law enforcement, both at home and abroad. And rather than coming to the defense of citizens against such abuses, state legislatures have been in a race to the bottom to propose laws that instead criminalize protest. Some were proposed in response to Black Lives Matters activities and some motivated by environmental and labor activism, highlighting the degree to which legislators are in thrall to corporations. These laws, often reacting to the protests of black and brown people, also set in sharp relief the degree to which some efforts by corporations to protect the economic status quo are wrapped up with white supremacy.
Viewed optimistically, though, corporate aggressiveness toward protestors underscores companies’ fears that they are on the cusp of losing ground to activists’ demands, which have brought so much unwelcome scrutiny to their profit-driven, environmentally damaging business models. As Dallas Goldtooth of the Indigenous Environmental Network told Grist, “They’re scared—we’re affecting their bottom line.” He continued, “The story we’re bringing to the table is infectious, and it’s beautiful.” Given the increasingly urgent stakes, advocates for a more just and sustainable future will not be easily silenced.
Editor’s Note: Lauren Carasik worked with the Water Protectors Legal Collective at Standing Rock.
Lauren Carasik is Clinical Professor of Law and Director of the International Human Rights Clinic at Western New England University School of Law.