September 12, 2022, Washington, D.C.–New research released by EarthRights International today reveals that the fossil fuel industry has targeted more than 150 environmental activists and community leaders with lawsuits and other forms of judicial intimidation over the past ten years. The Fossil Fuel Industry’s Use of SLAPPs and Judicial Harassment in the United States shows that as public concern for the climate crisis grows, fossil fuel companies have used the legal system to threaten the First Amendment rights of those who speak out against its practices. The analysis is the first to quantify the fossil fuel industry’s abuse of strategic lawsuits against public participation (SLAPPs) and offer steps for policymakers, civil society, and the private sector to take to end the use of these and other judicial abuses.
“The fossil fuel industry has responded to growing public concern about climate change by retaliating against those who challenge its practices,” said EarthRights Senior Policy Advisor Kirk Herbertson, the author of the report. “We cannot let the oil, gas, and mining industries weaponize the legal system to silence their critics. We must adopt anti-SLAPP laws to ensure that all Americans can effectively exercise their First Amendment rights.”
The term SLAPP refers to a lawsuit that intends to silence or punish those who use their constitutionally protected rights to speak up about a matter of public concern. SLAPPs and other forms of judicial intimidation are part of a broader global trend of governments and corporations acting to close civic space and silence activists. Those who speak up about environmental, land, and Indigenous rights face higher levels of violence than any other group. In many countries, well-connected business leaders and politicians order attacks and assassinations of their critics with impunity.
Last year, the Native Federation of the Madre de Dios River and its Tributaries (FENAMAD), a partner of EarthRights in Peru, was the target of a SLAPP after it denounced illegal logging in the Amazon. In 2017, Energy Transfer Partners, the company behind the controversial Dakota Access Pipeline, sued nonprofit organizations and individual water protectors, including EarthRights client Krystal Two Bulls, for supporting the Standing Rock protests. The company demanded $900 million in damages under the Racketeer Influenced and Corrupt Organizations Act (RICO). The company’s chief executive admitted the objective of the suit was not to obtain monetary damages but to “send a message” about protests like Standing Rock.
Additionally, fossil fuel companies have lobbied for anti-protest laws that impose stricter penalties on protesters. Some laws have turned minor offenses such as trespassing on private property into felonies if they occur near oil and gas facilities which are defined as “critical infrastructure.” To date, 17 states have passed such measures into law.
SLAPPs can impose devastating consequences on their victims, draining them financially and emotionally and discouraging them from exercising their rights to free speech. Many SLAPP victims choose to end their advocacy rather than endure litigation. They may reach settlement agreements with their attackers, signing away their First Amendment rights.
To uphold the right of Americans to exercise their right to free speech and preserve our democracy, EarthRights recommends that:
- Congress and state legislatures adopt strong anti-SLAPP laws that cover all federal and state courts.
- Civil society and media organizations provide support for at-risk people and organizations before attacks occur.
- Trial lawyers’ associations engage actively in anti-SLAPP legislative efforts to ensure a balanced approach between plaintiffs’ and defendants’ rights.
- Courts and bar associations discipline lawyers who file SLAPP suits.
- Federal judicial conferences and state judicial oversight bodies sanction those who use abusive subpoenas.
- Companies adopt policies of non-retaliation against their critics.
- Federal and state law enforcement agencies stop equating protestors with terrorists.
- The federal government places conditions on the forms of support it grants to the fossil fuel industry.
Contact: Kate Fried