FOIA/SLAPP

crypto/perverse: offensive tool

Arizona election denial group leader uses QAnon-affiliated channel to urge viewers to flood election officials with spurious records requests

Inundating election officials with records requests is a tactic increasingly popular in the election denial movement

PUBLISHED 01/11/24

An Arizona county Republican Party official who also leads an election denial organization in the state used a recent appearance on a QAnon-affiliated Rumble channel to encourage viewers to inundate election administration officials with public records requests — a tactic increasingly popular in the election denial movement.

During a January 8 appearance on The Tina Peters Show, Shelby Busch, a vice chair of the Maricopa County Republican Committee and co-founder of the election denial organization We the People AZ Alliance, told viewers to “be demanding” of election officials.

“Ask questions and start requesting records,” advised Busch, whose organization is primarily funded by fellow election denier and QAnon-connected figure Patrick Byrne. “Remind them that this is the people’s election.”

Badlands Media’s The Tina Peters Show and its eponymous host, Tina Peters, have ample ties to the QAnon movement and election denialism. Peters is a former Mesa County, Colorado, clerk who was indicted in 2022 by a grand jury for allegedly facilitating a security breach of her county’s election infrastructure. Peters has associated with a number of QAnon figures and has invoked QAnon terminology on her show. The Badlands Media Rumble channel was founded by QAnon influencers and largely dedicates its programming to covering QAnon and its related conspiracy theories.

During the interview, Peters and Busch rehashed supposed instances of election fraud in Arizona during the 2020 presidential election. At one point, Peters asked Busch to “tell people what they can do in their Maricopa … to make change” regarding elections.

In response, Busch, who also appeared on Peters’ show last April, told viewers to “learn how to do” public records requests to election administration officials regarding possible election fraud. Flooding election officials with such requests has become an increasingly common tactic used by the election denial movement.

Busch also offered to help Peters’ viewers put together their own records requests. She provided viewers with her email address and said, “If you don’t know how to do them, email me … or reach out to us through our website.”

“I will be happy to send you a template and walk you through it,” she added.

Peters also promoted Busch’s We the People AZ Alliance email address in an on-screen graphic during the show and urged viewers to contact Busch for help with their records requests.

Video

CitationFrom the January 8, 2024, edition of Badlands Media's The Tina Peters Show, streamed on Rumble

TINA PETERS (HOST): OK, so Shelby, tell the people — so you mentioned about your volunteers and the people that are working so hard. Tell people what they can do in their Maricopa, what they can do in their counties to make change.

SHELBY BUSCH (CO-FOUNDER OF WE THE PEOPLE AZ ALLIANCE): Absolutely. So number one, public records requests. Learn how to do them. And if you don’t know how to do them, email me at … or reach out to us through our website, and I will be happy to send you a template and walk you through it. Start asking questions. Be demanding of these election officials. Ask questions and start requesting records. Remind them that this is the people’s election. So that’s a first and foremost — you should really, really just start holding your government accountable. And if you don’t know how or what to do, get with somebody who does and learn. So it’s number one.

Number two, get involved with grassroots organizations in your community that are working on stuff like this and see where you can serve. Our voter rolls in every state are a mess. So it’s a great place to start, is learning how to look at voter rolls, knocking on neighbors’ doors, and just making sure that we have legitimate voters in our own neighborhoods. So that’s a really — another thing that you can do. It’s really easy.

But if none of that works for you, if you don’t have time for public records requests or to learn a new challenge, or you’re not comfortable knocking on doors, or maybe you can’t get out of the house, you can pray, because this is a spiritual battle beyond all, and you can show up on Election Day and cast your ballot, and you can stand up for election workers and election officials like Tina, who are putting everything on the line to expose this to the world. Support people who are trying to do the right thing, stand by their side, and encourage them. But most importantly, start developing relationships in your own community with your legislators and your elected officials. Because this is all we have is our voice. And make sure that you know how to use it.

PETERS: Yes. Thank you so much. And I put in the ticker at the bottom of the screen, “learn how to do public record requests at … .” You can — you can email Shelby, and she will send you or give you information how you can do that.

I think that’s so good. I — you know, I’ve had people on too, Shelby, about doing grand jury, you know, just — people have to get involved. They need to learn how to do pro se filings. You don’t always need to have an attorney. You can learn how to pro se, and the judge actually gives you more leniency if you’re not an attorney in how to do that. So I believe everybody can stand up. Everybody can do something. I always say there’s more of us than there are of them. They can’t get us all.

Busch’s use of Peters’ show marks yet another connection between the election denial and QAnon movements, with the former repeatedly using the latter for their efforts.

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ref 1

https://www.greenpeace.org/international/story/16448/chevrons-slapp-suit-against-ecuadorians-corporate-intimidation/

many lnx

Chevron’s SLAPP suit against Ecuadorians: corporate intimidation

by Rex Weyler 11 May 2018|

These days, when powerful corporations get caught breaking the law, polluting the Earth, violating human rights, or all of those crimes simultaneously, they don’t pay the fine and make amends, like normal citizens. They attack.

Corporate lawyers spend millions to assault victims withSLAPPs (Strategic Lawsuit Against Public Participation).The most recent SLAPP strategy in the US, popularized by attack-dog New York law firm Gibson Dunn, employs US “racketeering” (RICO) laws against environmental groups, victims of pollution, and their lawyers.

The purpose of a SLAPP lawsuit is not necessarily to win in court, but rather to intimidate, harass, demonize, and bankrupt the weaker opponent. “The powerful use their abundance of resources to enact revenge,” explains the American Civil Liberties Union. Many jurisdictions now ban SLAPP suits, but corporations still shop around for lax jurisdictions and sympathetic judges.

In 2013, for example, when Greenpeace Canada exposed Resolute Forest Products’ destructive logging in Québec, Resolute filed a retaliatory $7-million lawsuit against Greenpeace Canada and two staff members in Ontario, which did not yet have anti-SLAPP laws. Later, Resolute used US courts to attack Greenpeace USA and Greenpeace International under the Racketeer Influenced and Corrupt Organizations (RICO) Act, created in 1970 to prosecute organized crime syndicates. “This lawsuit,” said Greenpeace US director Annie Leonard, “is an attempt to silence, vilify, and criminalize activism.” As with most of these intimidation lawsuits, the RICO case in the US was thrown out of court, but Resolute promptly filed an amended suit.

In perhaps the most vindictive SLAPP in history, Chevron — one of the world’s largest corporations, with over $260-billion in assets — found a sympathetic New York judge to accept a RICO lawsuit against the victims of its vast oil pollution in Ecuador’s Amazon basin.

Legal thuggery

Chevron’s Amazon troubles began in 2000 when it purchased Texaco, inheriting liability for the company’s oil field pollution in Ecuador, known as theAmazon Chernobyl.Texaco/Chevron had dumped some 16 billion gallons of toxic wastewater into rivers and abandoned over 900 carcinogenic waste pits. The Indigenous rainforest inhabitants claim they were left with destroyed land, polluted water, and an epidemic of cancer and birth defects.

[pix Abandoned toxic oil dump, Ecuador. Courtesy of Amazon WatchAbandoned toxic oil dump, Ecuador. Courtesy of Amazon Watch © Amazon Watch]

In 1993, the victims sued for damages in the US. Chevron fought for nine years to shift the case to Ecuador, where they may have expected to influence the courts. Chevron fully accepted jurisdiction in Ecuador, where the case began in 2003. Six years later, in light of overwhelming scientific evidence, Chevron realized that they would likely lose. In 2009 the oil company hired the notorious “rescue squad” law firm of Gibson Dunn, found a corporate-friendly Judge, Lewis A. Kaplan in New York, and began a series of SLAPP attacks on the victims, on their lawyers, and on the Ecuadorian judicial system. Over the next five years, Kaplan allowed virtually any Chevron motion, denied defendant motions, mocked the victims and their lawyers, and allowed a RICO racketeering case against two Ecuadoreans — Secoya Indigenous leader Javier Piaguaje and farmer Hugo Camacho — and their American lawyer, Steven Donziger.

Meanwhile, in Ecuador, the Indigenous and peasant villagers won a $9.5 billion compensation judgment, confirmed by appellate courts and by Ecuador’s Supreme Court (Court of Cessation). In response, Chevron sold its assets in Ecuador, fled the country, refused to pay, and threatened the victims with a “lifetime of litigation.”

The company has since retained over 60 law firms, 2,000 lawyers, paralegals, six public relations firms, squads of private investigators, and at least one bribed witness, who later admitted to lying. Lawyers for the victims estimate Chevron has spent over $2 billion to avoid payment of the court judgement, the largest collection of SLAPP suits in history.

Gibson, Dunn & Crutcher (Gibson Dunn) promotes itself as a corporate “rescue squad” specializing in “shielding clients” from “billions in liability”. They boast of getting George W. Bush installed as US president by stopping a Florida vote recount, and shielding Lehman Brothers from liabilities in the largest bankruptcy filing in U.S. history.

Randy Mastro co-chairs the firm’s litigation department; infamous for a string of court censures for fabricating evidence, lying and other criminal misconduct. In 2015, the High Court of England sanctioned Gibson Dunn for fabricating evidence to frame the political rival of the firm’s client, the President of Djibouti, Africa.

In 2005, a federal court in California sanctioned Gibson Dunn for tampering with a witness, “obstruction, gamesmanship and flagrant disregard” of Court orders.In 2007, the Montana Supreme Court assessed a $9.9 million fine against Gibson Dunn for “blatantly and maliciously trying to intimidate” its adversary, using the judicial system for “legal thuggery”. The following year, a New York federal judge sanctioned the firm for “unacceptable shenanigans”, including hiding documents and outright lies. A California federal judge concluded that the firm’s misconduct is “a product of a culture which permeates” Gibson Dunn.

As Chevron faced losing the pollution case in Ecuador, CEO John Watson and General Counsel R. Hewitt Pate turned to Gibson Dunn’s “rescue squad” for help. The lawyers, led by Mastro, soon revealed their abusive tactics. An Oregon federal judge sanctioned the Gibson Dunn lawyers for using the discovery process — intended to provide information to opposing counsel — to harass a small legal non-profit assisting the Ecuadorian victims. In Ecuador, appellate judges rebuked Chevron’s new lawyers for threatening trial Judge Nicolas Zambrano with criminal charges and prison unless he dismissed the case.

However, the Ecuadorian decision stood, Chevron owed its victims $9.5 billion, and Randy Mastro went to work harassing the victims, their lawyers, and the Ecuadorian justice system before a gleefully encouraging Judge Kaplan in New York.

Judge as prosecutor

Chevron and Gibson Dunn knew precisely whoJudge Kaplanwas, when they launched their series of SLAPP suits through his court.

In 2004, Kaplan allowed the NY Police Department to arrest any “recognizable group” of 50 or more cyclists riding together, as a way of stopping bicycle protests, specifically by the environmental group Critical Mass. Although the First Amendment of the US Constitution protects “freedom of assembly”, Kaplan argued that “traffic flow” held precedent over the right of citizens to assemble in peaceful protest. When Lehman Brothers employees sued Lehmans for failing to protect their pension plan, violating the Employee Retirement Security Act, Kaplan simply dismissed the case.

At The Robing Room, a judicial review forum, one commenter warned, “if you are representing big business interests, Judge Kaplan will find a way to rule in your favor. If you going up against big business interests, you are out of luck.” Others describe Kaplan as “working for business interests” and “part of the old-boy network.”

“We knew that Gibson Dunn and Chevron had selected Judge Kaplan as an ally,” said Steven Donziger, lawyer for the original Ecuadorian plaintiffs, Frente de Defensa de la Amazonía (FDA). “A normal judge’s responsibility is to insure impartiality, decorum, and legal integrity. In the RICO SLAPP suit, Kaplan served more as a member of the prosecution team. He mocked defendants, laughed at defense motions, praised Chevron, granted their every wish, and insulted the entire Ecuadorian justice system.”

Marathon of preliminaries

The highly unusual three year discovery and deposition process, prior to the actual trial, revealed a succession of nightmarish legal irregularities:

No media confidentiality: The SLAPP began in April 2010, when Kaplan forced filmmaker, Joseph Berlinger to turn over 600 hours of outtakes from his acclaimed 2009 documentary, Crude: The Real Price of Oil. Kaplan ridiculed the journalist’s request to protect confidential sources. “If this is your best argument,” jeered Kaplan, “you’re in a lot of trouble.” A media coalition — including The New York Times, NBC, and HBO — filed a First Amendment objection with the court, and Robert Redford, writing in the Huffington Post, called the decision a “shocking” betrayal of US First Amendment rights.

Insulting a foreign Court: Kaplan and Chevron lawyer Mastro used the Berlinger hearings to insult the courts in Ecuador, where Chevron had insisted the trial be held. Mastro called the Ecuador courts “a sham” that would cause “any American to shudder at … what passes for a judicial system.” Kaplan openly laughed when asked to delay until an Ecuadorian court could provide input. “If this were the High Court in London,” Kaplan taunted, “you can be sure I’d wait.” Despite Mastro and Kaplan’s disdain here, the Ecuadorian justice system appears as impartial and honourable as any such system in any modern nation.

Insulting the defendants: Throughout the proceedings and in written memoranda, Kaplan referred to the 30,000 class-action victims in Ecuador as “so-called plaintiffs”, suggesting that their “standing in this matter is debatable to say the least.” He referred to their case in Ecuador as “the game” and “not a bona fide litigation.” When Donziger’s attorney made a routine request for time to review thousands of documents, Kaplan scoffed, “Don’t tell me about how long Mr. Donziger needs. I know the game here.”

No attorney-client confidentiality:Kaplan invoked a minor technicality to claim that Donziger, the victims’ US lawyer, had “waived” all attorney-client privilege, and insisted he turn over to Chevron lawyers 17-years of confidential communications with his clients, including, emails, notes, and his entire hard drive. Defense attorneys called this “the most sweeping forced production of privileged documents in history.”

Monster deposition: Federal rules typically limit individual depositions to one day, possibly two days in extraordinary cases. Once Chevron had all of Donziger’s confidential client files, they forced him, with Kaplan’s approval, to endure an unorthodox 18 days of discovery deposition, during which 20 or more Chevron/Gibson Dunn lawyers pelted him with petty and personal questions. According to Donziger’s RICO case rebuttal, Chevron’s lead PR consultant, revealed in 2009: “Our L-T [long-term] strategy is to demonize Donziger.”

Special Master: Judge Kaplan appointed his former law partner, Max Gitter, as “Special Master” or private judge to rule over the protracted deposition, paid entirely by Chevron. According to the Amazon Defense Coalition, Kaplan approved secret payments to Gitter, totaling “likely well over $1 million.” Like Kaplan, Gitter approved Chevron requests and dismissed defense requests. He revealed his conspiratorial relationship with Mastro and Chevron when he made a ruling based on the contents of a future Chevron document that had not yet been filed with the court. Upon realizing his error, he muttered, “Mr. Mastro, am I correct about that?” Mastro responded, “absolutely correct.”

Judge proposes Chevron strategy: During the discovery hearings, Judge Kaplan exclaimed: “Do the phrases Hobbs Act, extortion, RICO, have any bearing here?” signaling to Chevron lawyers that they should file a racketeering complaint. Shortly thereafter, on February 1, 2011, Chevron filed their RICO complaint against Donziger, Piaguaje, and Camacho, claiming that the 10-year case before three levels of Ecuadorian courts amounted to criminal extortion. Chevron asked for billions of dollars in damages, from Donziger, a sole practitioner, and two impoverished villagers, which required a jury trial. Kaplan accepted the claim and assigned the case to himself.

International powers: After the RICO filing, Judge Kaplan presumed to issue a universal injunction, allegedly prohibiting any court in any nation from enforcing the environmental judgment against Chevron, two days before the Ecuadorian court announced that judgment. In September, 2011, the US Court of Appeals vacated the injunction, chastizing Kaplan for inflicting damage on international comity, the principle among modern nations to show respect for each other’s legal systems.

Implacable hostility: By this time, Donziger and the Ecuadorian victims were almost broke, which Donziger claims, “was the whole point of Mastro’s and Chevron’s strategy.” Nevertheless, renowned defense attorney, John Keker, a former US marine, highly respected for legal integrity, offered to help the beleaguered defendants. “This case has degenerated into a Dickensian farce,” Keker said. “Encouraged by this Court’s implacable hostility toward Donziger, Chevron will file any motion, however meritless, in the hope that the Court will use it to hurt Donziger.”

Fishing expeditions: Chevron served Donziger, Piaguaje, and Camacho, with hundreds of new document requests and over a thousand “requests for admission,” disputed claims that Chevron could argue were “admitted” if the defendants could not respond. The impoverished Ecuadorian peasants kept almost no documents and rarely engaged in written communication. The requests imposed a massive new expense for the defendants. Kaplan also allowed Chevron to serve subpoenas on Amazon Watch, Google, Microsoft, and others, seeking email accounts to track the activities of some 100 lawyers, students, journalists, and academics that supported the Ecuadorian’s cause. “These were fishing expeditions,” Donziger explained, “that violated everyone’s right to privacy.”

Scorched Earth: By May 2013, before the actual trial had even begun, the defendants were thoroughly destitute, and their defense attorneys — Keker and Craig Smyser, who had been deferring payment — could no longer continue. Both attorneys expressed outrage at Kaplan’s refusal to grant common sense measures to streamline the burdensome process. “Through scorched-earth litigation, executed by its army of hundreds of lawyers,” said Keker, “Chevron is using its limitless resources to crush defendants and win this case through might rather than merit.” Smyser, called the lawsuit a “legal blitzkrieg” that Kaplan not only tolerated but “encouraged”.

After four years of gruelling discovery depositions and document demands by Chevron — the exhausted defendants’ best hope for justice rested on the trial jury. A jury would remove some decision-making power from Kaplan, and would hear overwhelming evidence of Chevron pollution and legal misdeeds. However, Kaplan had new surprises in store.

[pix Ecuadorians and P. Bellegarde, court, 2018 © Johanna LunaHugo Camacho, Amazon Defense Coalition (second from left) was one of the villagers named in the US RICO case. Here, he joins Domingo Paes, Achuar; Canadian Assembly of First Nations Grand Chief Perry Bellegarde, Janeth Cuji, Kichwa; and Rafael Pandam, President of the Indigenous Amazonian Parliament of Ecuador, in a Canadian court © Johanna Luna]

The RICO Trial

No jury: On the eve of the trial, Chevron decided, with Kaplan’s approval, to drop their financial damages claim, which meant that Kaplan could drop the jury and decide the outcome himself. “Chevron,” said Donziger, “apparently panicked at the notion of trying to sell their fraud and extortion claims to anyone other than Kaplan.” The defense demanded a jury trial, based on their right to a jury in a RICO case, a long-standing legal principle in cases that carry criminal implications. Kaplan refused. He would decide himself about the defendants’ guilt or innocence.

No pollution talk: Even though Kaplan had presumed the authority to “set aside” an Ecuadorian environmental judgment with a 10-year, 220,000-page evidentiary record of Chevron’s environmental crimes, and to characterize that entire proceeding as an act of “extortion,” the corporate-friendly judge barred the defense from even mentioning anything “related to the existence of pollution in Ecuador.” The pollution, he said, was “not relevant.”

No dirty-tricks talk: Furthermore, Kaplan ruled that the defense could not mention evidence of Chevron’s campaign or Gibson Dunn’s campaign of “dirty tricks” operations, past courtroom crimes, lies, and fabricated evidence. Chevron, of course, was allowed to discuss any alleged history of the defendants, dredged up from four years of ruthless depositions, spies, and private investigators.

Tsunami of paper: On the first day of trial, Chevron placed over 2,500 exhibits into evidence en masse, nearly 10,000 separate assertions, to which the impoverished defense was given less than a week to respond. If they failed, Kaplan could deem the defendants’ objection “waived.”

Anonymous witnesses: Kaplan accepted testimony from Chevron witnesses whose identity they kept hidden from the defense,preventing the normal investigation necessary for effective cross-examination. The defense expressed outrage at this violation of “basic legal principles,” which they said would “be right at home in the Spanish Inquisition.”

Editing the evidence: At this point, the defense caught Randy Mastro presenting edited video, in which he had cut out critical contextual words from Mr. Donziger’s comments. According to trial transcripts, when the defense brought this to the judge’s attention, Kaplan adjourned, did some research, and responded: “About 15 words were edited out … I assume there was no attempt to mislead.”

Chevron’s claim that the entire Ecuadorian judicial process — ten years of court trials and appellate reviews in three levels of courts — had been “fraudulent” rested, however, almost entirely upon one, single witness.

[pix Steven Donziger at oil well © Lisa GibbonsSteven Donziger, lawyer for the Ecuador plaintiffs for 25 years, at oil site in Ecuador’s Amazon © Lisa Gibbons

The Witness]

In American Lawyer magazine, in 2009, David Hechler, describes Gibson Dunn’s “game plan,” to shield clients from liability in foreign pollution cases: “find witnesses” who will accuse the foreign court of “fraud.” In a separate American Lawyer story, Gibson, Dunn lawyer Robert Cooper, explains, “We prepared the witnesses to tell our story.”

In Ecuador, on behalf of Chevron, Gibson Dunn found one such witness, Alberto Guerra, a former Ecuadorian judge who had been removed for misconduct, including accepting bribes. According to Amazon Watch, Chevron lawyer Andres Rivero and Chevron private investigator Yohi Ackerman paid Guerra $48,000 in cash, and agreed to pay him $12,000 a month for at least three years. Chevron lawyers allegedly negotiated and smoothed Guerra’s immigration into the US, paid for his family to move, hired lawyers to get them green cards, and bought them a car, auto insurance, and health insurance.

[ pix Justice Now protest, Ecuador. Photo courtesy of amazonwatch.orgJustice Now protest, Ecuador. Photo courtesy of amazonwatch.org © Amazon Watch]

According to a letter from the defense to the US Department of Justice, Chevron has paid Guerra at least $2 million in cash and benefits, in exchange for false testimony. According to an affidavit by legal ethicist Erwin Chemerinsky— Founding Dean of the University of California at Irvine School of Law and a prominent US legal scholar — these payments to Guerra violated fundamental ethical rules of law.

In New York, over 53 days by Guerra’s admission, Gibson Dunn’s Randy Mastro helped him prepare his testimony about “fraud” in Ecuador. On the stand before judge Kaplan, Guerra claimed that Ecuadorian lawyers promised presiding judge Nicolas Zambrano $500,000 to allow them to write the final judgment, which Guerra claimed they gave to Zambrano on a flash drive. Guerra also claimed that he possessed a draft copy of the fraudulent judgment and that he met with the plaintiffs’ American lawyer Steven Donziger to discuss the alleged “bribe”.

Quickly, however, Guerra’s story fell apart. Immigration records showed that Donziger was not even in Ecuador when Guerra claims the meeting took place. No evidence of a flash drive was ever produced, and Guerra’s computers did not turn up the draft judgment, or even a single email from the plaintiffs’ attorneys. When this came to light, Guerra changed his story, claiming that after “strengthening my memory” he now recalled working on this draft, not at home, but rather had taken an eight-hour bus ride into the jungle, where he claimed he edited the judgment on a laptop handed to him by one of the Ecuadorians’ lawyers.

However, this story crumbled as well when forensic analysis showed that the trial judge had never downloaded the judgement from a flash drive and, rather, had opened and saved his own written judgement document more than 400 times over three months on his own office computer.

Furthermore, after the RICO trial, in a separate arbitration under the US-Ecuador Bilateral Investment Treaty, Guerra admitted under oath that he had lied to Chevron’s lawyers about his involvement in the alleged attempt to influence the Ecuadorian judgement. “I did exaggerate about [some things], yes,” said Guerra under questioning. When a lawyer asked him, “And among the ways you tried to leverage your position was to falsely tell the Chevron representatives that the Plaintiffs had offered you $300,000?” Guerra answered, “Yes, sir. I lied there.”

Nevertheless, Kaplan accepted Guerra’s testimony and rejected defense efforts — Motion to strike testimony and Motion for terminating sanctions — to strike Guerra’s testimony, which the defense claims was fabricated during the 53-day session with Chevron lawyers.

The final twist appeared as Judge Kaplan crafted a judgment. By dropping the money claim, Chevron had avoided a jury but also undermined its own case. A plaintiff must seek either money for damages or an injunction, a court-ordered condition placed on the defendant. The Court of Appeals had already reversed Kaplan’s earlier injunction and could do so again. Without a money claim or injunction, Chevron lacked standing.

Perhaps to avoid this problem, Kaplan based his guilty verdict on a “non-statutory claim for equitable relief” from an allegedly fraudulent judgment.According to Donziger’s rebuttal, the decision lacked “due process,” since the claim had never been presented by Chevron or argued in court, and “relied on vague 18th and 19th century treatises” that “had been effectively repealed and replaced by the statutory framework for enforcement of foreign judgments … during the twentieth century.” Typically, a judge can’t invent a new claim for the plaintiff after a trial has ended.

The Republic of Ecuador filed an Amicus Brief, stating that “Judge Lewis Kaplan reached far beyond the issues presented to unfairly—and unnecessarily—impugn the integrity of the Republic of Ecuador.” They stated that Kaplan’s “unfounded commentary”, against a “sovereign democracy”, was based on “unreliable evidence”. The Ecuadorian court charged that Kaplan relied almost exclusively on one Vladimiro Álvarez Grau, an avowed political opponent of the Ecuadorian government. “Chevron sought out a favorable forum,” the Ecuadorian court wrote. “The District Court [Kaplan], fulfilling Chevron’s wishes, chose to make far-reaching judgments based primarily on the opinions of a single partisan.”

Finally, the Ecuadorian court confirmed that Chevron Corporation remained responsible for the impact of its pollution.“In 2005,” the court wrote, “ChevronTexaco dropped the name ‘Texaco’ and reverted to its original name, Chevron Corporation. There is no indication in the record before us that shortening its name had any effect on ChevronTexaco’s legal obligations. Chevron Corporation therefore remains accountable.”

Furthermore, in a separate discovery hearing, the US Third Circuit court cautioned: “The circumstances supporting [Chevron’s] claim of fraud largely are allegations and allegations are not factual findings.”

This historic SLAPP lawsuit, possibly the most expensive in history, appears to have failed, even after Kaplan’s decision.Foreign courts have ignored Kaplan’s injunction, and Donziger and his clients are making progress in Canadian courts, where the victims are attempting to collect the Ecuadorian judgment by seizing Chevron Canada’s assets, and where they have won three consecutive unanimous appellate court decisions. Donziger and the Ecuadorian villagers have said they would welcome Chevron to claim in Canada that the Ecuadorian judgment was fraudulent. “If they had to bring Guerra to Canada before a neutral judge,” says Donziger, “we believe the company’s entire RICO narrative will collapse.”

SLAPP suits represent a threat to public protest and free speech. They have no place in a democracy.

References and Links

https://www.desmogblog.com/2019/02/14/energy-transfer-racketeering-claims-greenpeace-dakota-access-pipeline-dismissed

A North Dakota federal judge dismissed Energy Transfer’s racketeering lawsuit against Greenpeace and all its co-defendants in a sharply worded ruling issued today, finding that the pipeline builder’s allegations fell “far short of what is necessary to establish a [racketeering] claim.”

In August 2017, Energy Transfer filed a Racketeer Influenced and Corrupt Organization (RICO) Act civil complaint against Greenpeace and other environmental groups who had opposed the company’s Dakota Access pipeline, claiming that the protests had caused $300 million in damages (and requesting three times that amount from the defendants).

Today’s ruling flatly rejected Energy Transfer’s claims.

“Donating to people whose cause you support does not create a RICO enterprise,” District Judge Billy Roy Wilson wrote in a terse 12-page opinion dismissing all state and federal claims in the suit. “Posting articles written by people with similar beliefs does not create a RICO enterprise.”

The company labeled opponents “eco-terrorists” in its 187-page complaint, DeSmog reported at the time; Greenpeace responded that the lawsuit should be considered a Strategic Lawsuit Against Public Participation (a so-called SLAPP suit) and was nothing more than an attempt to deter legitimate organizing work.

Other civil society organizations agreed with Greenpeace’s stance.

“Defendants employed time-honored, lawful means to advance their views, protected by core constitutional rights of free speech and association,” the American Civil Liberties Union (ACLU) wrote in a friend-of-the-court brief objecting to Energy Transfer's (then Energy Transfer Partners, or ETP) claims of racketeering, defamation, and conspiracy. “Under ETP’s theories, ordinary political speech that runs counter to a corporation’s business interests could expose the speaker to enormous, unwarranted liability.”

Judge Wilson ruled today that Energy Transfer’s lawsuit could not go forward, dismissing all of the federal claims with prejudice (so that they cannot be re-filed), writing that “any additional amendments [by the plaintiff] would be futile.” He also dismissed the state claims, though without prejudice.

Energy Transfer said it planned to pursue futher action in state court, given that the federal judge had declined to hear their state law claims. “We are disappointed, but because the judge dismissed the state claims without deciding their merits, we intend to quickly pursue those in the appropriate venue,” Lisa Dillinger, an Energy Transfer spokesperson, said in a Friday email to DeSmog.

The federal judge dismissed Energy Transfer’s allegations of “wire fraud and mail fraud” in a single sentence. “There appear to be problems with both causation and the fact that most (if not all) of the alleged ‘false and sensational’ claims are either subject to debate, matters of opinion, or inconsequential.”

The judge’s Valentines Day 2019 ruling describes the case’s history, observing that claims against two of Greenpeace’s co-defendants were dismissed in July. Plaintiffs then added individual defendants, named in today’s ruling as “Greenpeace’s employee Charles Brown, and alleged protesters Cody Hall, Krystal Two Bulls, Jessica Reznicek and Ruby Montoya.”

“This is a huge victory not just for Greenpeace but for anyone and everyone who has ever stood up against powerful corporate interests,” Greenpeace USA General Counsel Tom Wetterer said in a statement.

“Today’s decision to dismiss Energy Transfer's baseless lawsuit against Greenpeace and others sends a clear message to companies trying to muzzle civil society that corporate overreach will not be tolerated,” he said. “It is also a check on corporate efforts to silence dissent.”

The ruling comes just one month after RICO claims against Greenpeace by Resolute Forest Products –- a case also filed by attorneys from Kasowitz Benson Torres (a law firm used by President Donald Trump) – were similarly dismissed in January.

Greenpeace hailed the federal court decision as showing that, in their words, “[j]ustice has been served.”

“We must and will continue to hold Energy Transfer accountable for its corporate behavior on current risky pipeline projects like Bayou Bridge,” Wetterer said, referring to the Energy Transfer oil pipeline being built in Louisiana, “where the company is continuing to use private security to intimidate protestors and has aggressively used eminent domain laws to secure land.”

spin on slapp, retaliation for local lawsuits:

https://www.desmogblog.com/2018/03/10/exxon-accuses-california-cities-misleading-investors-climate-change

https://www.exposedbycmd.org/2018/09/17/verizon-dumps-alec-denounces-speaker-racist/

armiak

Verizon has decided to quit the American Legislative Exchange Council (ALEC) following a public outcry over the corporate lobby group’s hosting of David Horowitz as a prominent speaker at its annual meeting in New Orleans in August.

The Center for Media and Democracy (CMD)’s exposé of Horowitz’s divisive and bigoted remarks at the ALEC event sparked a coalition of 78 democracy reform, civil rights, and advocacy organizations to send a letter of protest to ALEC’s largest corporate backers, including Verizon, urging them to “make it clear that [they] will not stand for the sort of toxic, inflammatory claims ALEC has embraced” and leave ALEC.

“Our company has no tolerance for racist, white supremacist or sexist comment or ideals,” Verizon spokesperson Richard Young said in a statement to The Intercept, which first broke the story.

ALEC may have tried to prevent Verizon from dropping its membership with a statement posted to its website on September 10 stating that Horowitz “was advised of the program parameters and did not abide the process,” and that “ALEC staff removed the video archive of the livestream and ceased promotion of the speech as the comments were inconsistent with the manner in which speeches are offered at ALEC.”

Verizon, a member and major donor of ALEC for over three decades, must have been unimpressed with the statement. The telecommunications giant was a long-time holder of a seat on ALEC’s Private Enterprise Board. Its exit is the second big loss for ALEC in 2018 after ExxonMobil’s decision to not renew its membership earlier in the year.

State Rep. Chris Taylor, who attended the event and wrote the original article exposing Horowitz’s rhetoric at ALEC, quoted him as saying that, “at the K-12 level, school curricula have been turned over to racist organizations like Black Lives Matter and terrorist organizations like the Muslim Brotherhood.”

Horowitz’s legal team attempted to intimidate CMD into retracting the story with the threat of a defamation lawsuit for describing him as a “hatemonger” and “anti-Islamic.”

Madison attorney Lester Pines sent a response on behalf of Rep. Taylor and CMD standing by the accuracy of Rep. Taylor’s column. “Were your client to bring a suit for defamation against Representative Taylor or CMD, it would be dismissed as frivolous and they would seek attorneys’ fees and expenses,” Pines wrote.

It remains unclear whether other brand-sensitive corporate backers of ALEC serving diverse markets will follow Verizon’s lead. More than 110 corporations and 19 nonprofits have severed their ties with ALEC in recent years over the front group’s backing of controversial “Stand Your Ground” and voter ID laws, and its radical climate denial stance.

6/4/18 news kpfa i can not find

https://www.greenpeace.org/usa/news/federal-court-dismisses-racketeering-case-against-greenpeace/

https://www.alternet.org/news-amp-politics/trumps-history-libel-and-defamation-lawsuits-silence-critics

...

Trump has vowed to seek revenge on BuzzFeed for publishing the Steele Dossier almost a year ago. Now, Trump lawyer Michael Cohen is suing BuzzFeed for defamation.

BuzzFeed stands by its decision to publish the dossier. Katie Rayford, a BuzzFeed spokesperson, told AlterNet: "The dossier is, and continues to be, the subject of active investigations by Congress and intelligence agencies. It was presented to two successive presidents, and has been described in detail by news outlets around the world. Its interest to the public is obvious. This is not the first time Trump's personal lawyer has attacked the free press, and we look forward to defending our First Amendment rights in court."

...

no link

trump loves both suing and threatening lawsuits over any perceived slight, whether it’s an artist who depicted the president nude with a micropenis, or an analyst who (correctly) predicted the Taj Mahal Hotel and Casino would fail. The president has a long history of using bogus claims of libel and defamation to bully opponents and tie them up in court. The American Bar Association has called him a "libel bully," but was afraid to make the claim public because its lawyers feared Trump might sue in retaliation. There’s even a nifty online counter tracking the number of hours since Trump last threatened a journalist or critic. According to the makers of the counter, he’s threatened to sue at least 45 times since the 1980s.

As outrageous as some of Trump’s claims are, being sued for defamation or libel is no laughing matter. It can cost hundreds of thousands of dollars in legal fees, not to mention the opportunity cost of time spent in court, plus the emotional strain and reputation damage that can occur during a complicated lawsuit. For someone as powerful as Trump, who can hand these burdens off to someone else, lawsuits are an easy way to threaten anyone who challenges him.

Here are some of the least credible and most obnoxious lawsuits Trump has followed through on in an effort to silence his opponents.

The Chicago Tribune

Back in 1984, Trump sued Pulitzer Prize-winning architecture critic Paul Gapp for a staggering $500 million after the writer mocked a proposed Trump building in the New York financial district. Gapp called the building plan unrealistic and “one of the silliest things anyone could inflict on New York or any other city”—and Trump was not having it.

The case was tossed out by a particularly sardonic judge, whose full statement is a delight to read. In Gapp’s defense, the building design was totally silly, as you can see below.

Trump biographer Timothy O’Brien

In 2005, Trump sued his own biographer, Timothy O’Brien, for writing in TrumpNation: The Art of Being the Donald that the real estate mogul was worth only $150 to $250 million. Trump insisted he was worth at least $5 billion, and took the case to court. Seriously. A judge ultimately dismissed the case. After he lost, Trump bragged to the Washington Post: "I spent a couple of bucks on legal fees but they spent a whole lot more. I did it to make [O’Brien’s] life miserable, which I’m happy about."

Miss USA contestant Sheena Monnin

In 2012, pageant contestant Sheena Monnin complained on Facebook that the Miss USA contest Trump oversaw was "fraudulent," "trashy" and "rigged.” Trump sued her for $5 million in response and won an arbitration award. Trump attorney Michael Cohen later bragged that he and Trump had “destroyed” Monnin’s life.

The Daily Beast

Trump’s team sued the Daily Beast in 2015 after it published an article about Ivana Trump’s accusations of rape against her ex-husband. On that occasion, attorney Cohen, who headed many of these lawsuits, made it perfectly clear that the suit was intended to punish anyone who smeared Trump’s name.

“I will make sure that you and I meet one day while we’re in the courthouse. And I will take you for every penny you still don’t have. And I will come after your Daily Beast and everybody else that you possibly know,” Cohen told the Daily Beast. “So I’m warning you, tread very f---ing lightly, because what I’m going to do to you is going to be f---ing disgusting. You understand me?”

“You write a story that has Mr. Trump’s name in it, with the word ‘rape,’ and I’m going to mess your life up…for as long as you’re on this frickin’ planet…you’re going to have judgments against you, so much money, you’ll never know how to get out from underneath it,” he said.

Union workers at Trump Hotel Las Vegas

In 2015, Trump sued the Culinary Union and Bartenders Union at his own Las Vegas hotel for printing “misleading” flyers that suggested Trump himself did not stay at Trump Hotel Las Vegas because the rooms weren’t luxurious enough. At the time, employees at the hotel were in the midst of efforts to unionize.

A union spokesperson told the Hollywood Reporter: "This lawsuit is an effort to distract from the unionizing effort...There are over 500 workers who are fighting for justice and respect at the Trump Hotel Las Vegas.”

Univision

Trump's long and well-publicized feud with Univision has resulted in threats of several lawsuits, including one against programming chief Alberto Ciurana for posting an Instagram with Trump’s face spliced next to Dylann Roof’s. So basically, Trump threatened to sue over a meme calling out his blatant racism.

It's no wonder Univision's lawyers called Trump "thin-skinned" in response. Their memorandum to dismiss the suit nails Trump's tactics of intimidation perfectly: "There is a rich irony to Trump’s cry that he is the target of an effort to 'suppress [his] right to free speech,' when it is Trump himself—a candidate for president—who is attempting to invoke the coercive power of the courts to punish a citizen’s speech."

https://www.alternet.org/news-amp-politics/robert-reich-reveals-biggest-threat-american-democracy-youve-never-heard

SLAPP stands for “Strategic Lawsuit Against Public Participation.” It is a lawsuit brought by big corporations intended to censor, intimidate, and silence critics by burdening them with the overwhelming costs of a legal defense until they’re forced to abandon their criticism or opposition. And it may be the biggest threat to the resistance you’ve never heard of.

Here’s an example: Resolute Forest Products, one of Canada’s largest logging and paper companies, has sued, in a U.S. court, environmental groups that have been campaigning to save Canada’s boreal forest.

Resolute based its lawsuit on a U.S. conspiracy and racketeering law (RICO) intended to ensnare mobsters. Resolute alleged that the environmental groups have been illegally conspiring to extort the company’s customers and to defraud their own donors.

The suit wasn’t designed to win in court. It was designed to distract and silence critics. This is punishment for speaking out. Thankfully, a federal court agrees and a judge just dismissed Resolute’s claims. But other corporate bullies are still trying to use this playbook.

Here’s another example: Remember the indigenous led movement at Standing Rock, when hundreds of nations and their allies came together and stood up against the destructive Dakota Access Pipeline?

In August, Energy Transfer Partners, the company behind that pipeline, filed a similar RICO case against Greenpeaceentities and two other defendants over Standing Rock. The suit accuses them of participating in a sprawling criminal conspiracy to disrupt business and defraud donors. The lawsuit even alleges they support eco-terrorism and engage in drug trafficking.

The lawsuit claims Greenpeace cost the company $300 million. Since RICO claims entitle plaintiffs to recover triple damages, the case potentially could cost Greenpeace $900 million. That would be the end of Greenpeace.

But, again, winning isn’t necessarily the goal of SLAPP suits. Just by filing the suits, Energy Transfer Partners and Resolute are trying to drain environmental groups of time, energy, and resources they need, so they can’t continue to fight to protect the environment.

Connect the dots, and consider the chilling effect SLAPP suits are having on any group seeking to protect public health, worker’s rights, and even our democracy.

Who’s behind all of this? Both the lawsuits I just mentioned were filed by Michael Bowe. He is also a member of Donald Trump’s personal legal team. Bowe has publicly stated that he’s in conversations with other corporations considering filing their own SLAPP lawsuits.

If the goal is to silence public-interest groups, the rest of us must speak out. Wealthy corporations must know they can’t SLAPP the public into silence.

https://www.ecowatch.com/trump-greenpeace-dapl-2476132561.html

Trump Attorney Sues Greenpeace Over Dakota Access Pipeline in $300 Million Racketeering Case

By Steve Horn

Energy Transfer Partners, owner of the Dakota Access pipeline, has filed a $300 million Racketeer Influenced and Corrupt Organizations (RICO) lawsuit against Greenpeace and other environmental groups for their activism against the long-contested North Dakota-to-Illinois project.

In its 187-page complaint, Energy Transfer alleges that "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" caused the company to lose

billions of dollars."

In the case, Energy Transfer is represented by lawyers from the firm Kasowitz Benson Torres LLP, one of the namesakes of which is Marc Kasowitz. Kasowitz is a member of the legal team representing President Donald Trump in the ongoing congressional and special counsel investigation of his 2016 presidential campaign's alleged ties and potential collusion with Russian state actors. The press release announcing the filing of the lawsuit details that Kasowitz attorney Michael J. Bowe is leading what the firm describes as an ongoing probe into the environmental groups' "campaign and practices."

Trump Connections

Bowe, according to multiple press accounts, is serving as Kasowitz's deputy in the ongoing Russia investigation. He also represents Resolute Forest Products and co-plaintiffs in its ongoing RICO lawsuit against Greenpeace, Stand.earth and other defendants involved in a corporate social responsibility campaign revolving around Resolute's forest-originated products.

Bowe, furthermore, is an attorney-of-record in a $50 million defamation lawsuit filed against freelance journalist Yashar Ali by suspended Fox News anchor Eric Bolling. Ali published a freelance article commissioned by the HuffPost on August 4 in which multiple sources told Ali that Bolling had sent a litany of unsolicited lewd text messages to Fox News' female employees.

Another attorney of record for the latest Greenpeace lawsuit, Jennifer Recine, formerly represented Trump"against the owners of one of the last large scale real estate development sites in Manhattan" and helped him win "the largest ever attachment in New York City history," according to her biographical sketch on the Kasowitz Benson Torres website. Bowe also lists that detail on his Kasowitz biography.

According to a New York Times article published in June, Marc Kasowitz represented Trump during the Trump Organization's financial travails in Atlantic City, New Jersey, and has served as his attorney in other recent matters. He even considered setting up an office in the White House, though he serves as Trump's personal attorney and not White House legal counsel.

"Kasowitz has been central to Mr. Trump's recent legal battles, helping his client keep divorce records sealed and representing him in the Trump University fraud lawsuit, in which Mr. Trump ultimately agreed to pay $25 million to settle claims from former students that the institution had cheated them out of tuition money," reported The Times. "In the final weeks of the presidential campaign, Mr. Kasowitz threatened to sue The New York Times for libel on Mr. Trump's behalf over a story in which two women accused Mr. Trump of inappropriate touching years earlier."

Energy Transfer Partners CEO Kelcy Warren was a major campaign donor to President Trump, giving him more than $100,000 in campaign contributions.

'Meritless Lawsuit'

In its press release, the legal team for Energy Transfer Partners says that a website "will be established to catalog information and publish progress reports on the case and, when necessary, to set the record straight as the facts warrant."

A similar website has been set up in the Resolute Forest Products case. In a press release, Energy Transfer Partners accuses Greenpeace and other groups of "inducing and directing violent and destructive attacks."

"The alleged Enterprise is comprised of rogue environmental groups and militant individuals who employ a pattern of criminal activity and a campaign of misinformation for purposes of increasing donations and advancing their political or business agendas," Energy Transfer Partners says in its press release about the lawsuit. "In addition to its misinformation campaign, the Enterprise directly and indirectly funded eco-terrorists on the ground in North Dakota. These groups formed their own outlaw camp among peaceful protestors (sic) gathered near Lake Oahe, and exploited the peaceful activities of these groups to further the Enterprise's corrupt agenda by inducing and directing violent and destructive attacks against law enforcement as well as Plaintiffs' property and personnel."

The "eco-terrorist" language mirrors that used by law enforcement and the public relations firms it and Energy Transfer Partners paid during the height of protests at the Standing Rock Sioux Reservation in Cannon Ball, North Dakota. In response to a request for comment from DeSmog, Bowe said that the alleged RICO conspiracy had a global reach.

"The complaint alleges the manufacturing and aggressive worldwide dissemination of a completely phony narrative inconsistent with overwhelming and incontrovertible facts," said Bowe. "We intend to successfully prosecute the case to its conclusion, vindicate this good company, and compensate it for the substantial harm it has suffered."

Greenpeace, though, sees the lawsuit as an act of "bullying" and in the category of "Strategic Lawsuit Against Public Participation," or SLAPP.

"This is the second consecutive year Donald Trump's go-to attorneys at the Kasowitz law firm have filed a meritless lawsuit against Greenpeace," Greenpeace USA General Counsel Tom Wetterer said in a press statement. "They are apparently trying to market themselves as corporate mercenaries willing to abuse the legal system to silence legitimate advocacy work. This has now become a pattern of harassment by corporate bullies, with Trump's attorneys leading the way."

Reposted with permission from our media associate DeSmogBlog.

===

http://www.slate.com/blogs/browbeat/2017/06/22/coal_baron_robert_murray_is_suing_john_oliver_over_his_segment_featuring.html

A Coal Baron Is Suing John Oliver for “Character Assassination” Over Last Week Tonight’s Talking Squirrel Segment

By Marissa Martinelli

On Sunday, John Oliver predicted that his Last Week Tonight segment on the coal industry would probably result in a lawsuit, and voilà: His Last Week Tonight segment on the coal industry has resulted in a lawsuit. Robert Murray, the CEO of Murray Energy, is suing Oliver and others after Oliver used Murray as an example of “the divide that can exist between a coal company’s interests and those of its workers” during Sunday night’s show.

During the segment, which was critical of the coal industry and Donald Trump’s promises to revive it, Oliver explained that Last Week Tonight had contacted Murray Energy for comment—and received the show’s first ever cease-and-desist letter in reply. In response, Oliver doubled down on criticism of Murray and his company, even seizing on a satirical article in the United Mine Workers of America journal, which attributed Murray’s inspiration to a conversation he held with a squirrel—yes, a squirrel. (Murray Energy denies this.) At the very end of the segment, Oliver brought out a giant talking squirrel of his own. “Hey, Bob! Just wanted to say, if you plan on suing, I do not have a billion dollars,” said the aptly named Mr. Nutterbutter. “But I do have a check for three acorns and 18 cents.” The check was then revealed to be made out to “Eat Shit, Bob!”

Murray Energy is now making good on its threat to sue, filing a defamation lawsuit that stresses Murray’s ill health, calling him“a man who needs a lung transplant, a man who does not expect to live to see the end of this case” and claiming that Oliver’s segment has been detrimental to both his business and his physical condition. While the meat of the lawsuit regards Oliver’s claims about the collapse of the Crandall Canyon Mine in 2007—Murray claims it was the result of an earthquake, Oliver says there’s no evidence to support that claim—fans of general absurdity will be thrilled to learn that this legal document also addresses that very important squirrel incident.

Instead, Defendants continued their ruthless character assassination and attack on Plaintiffs’ business reputations by describing Mr. Murray as someone who “looks like a geriatric Dr. Evil” and arranging for a staff member to dress up in a squirrel costume and deliver the message “Eat Shit, Bob!” to Mr. Murray.

If that were not enough, after the live taping, Defendant Oliver exclaimed to the audience that having someone in a squirrel costume tell Mr. Murray to “Eat Shit” was a “dream come true.”

The suit also alleges that Murray Energy’s website was “hacked and inundated with the message incited by Defendants: ‘Eat Shit Bob.’ ”

Murray Energy has a long track record of suing outlets critical of the coal industry. The company is currently suing the New York Times over claims similar to Oliver’s (minus the squirrel part, of course). In addition to naming Oliver, his production company, and Time Warner, Inc., the lawsuit also names a number of fictitious defendants, who are basically participants that the plaintiffs can’t immediately identify. In this case, these could conceivably include the segment’s writers, or even Mr. Nutterbutter himself.

Last Week Tonight ? @LastWeekTonight

Replying to @LastWeekTonight

"Welcome, welcome, welcome to Last Week To-nut, I'm Mr. Nutterbutter. Just time for a quick recap of the week..."

10:39 AM - Jun 19, 2017

177 177 Replies 1,111 1,111 Retweets 5,646 5,646 likes

HBO is standing by the segment, with a representative telling the Daily Beast, which first reported the lawsuit: “While we have not seen the complaint, we have confidence in the staff of Last Week Tonight and do not believe anything in the show this week violated Mr. Murray’s or Murray Energy’s rights.”

https://www.desmogblog.com/2017/04/03/youth-color-lawsuit-los-angeles-drilling-discrimination-oil-industry

After Los Angeles Youth Sued City for Discriminatory Drilling Practices, the Oil Industry Sued Back

By Ashley Braun • Monday, April 3, 2017 - 03:58

Boy playing basketball at Beverly Hills High School next to a covered oil derrick

Los Angeles is a city built on oil, and even today more than a thousand derricks still pump it from the shallow reserves beneath the city. While some oil wells are camouflaged behind colorfully painted towers or bland beige structures resembling office buildings, many of them draw up crude oil in the open, surprisingly close to homes, stores, restaurants, schools, and churches.

“Every time I go to school,” 18-year-old Brandon Molina told DeSmog, “I walk by these oil drilling sites. They’re around my school. So, it’s something that I see every day.”

In LA, the number of residents living less than a mile from an oil well is in the tens of thousands. But how close you live to a drilling site may depend on the color of your skin and socioeconomic status, placing communities of color disproportionately at risk, according to a lawsuit brought by three LA youth groups against the City of LA.

And while the City took steps to address the complaints by amending its drilling application process and ultimately settled with the youth groups in September 2016, both parties are currently facing a counter lawsuit.

This legal battle has been brought by a state-based oil and gas trade group, theCalifornia Independent Petroleum Association (CIPA), which argues that after a judge granted it permission to participate in the youth lawsuit settlement discussions, it was allegedly blocked from doing so.

Molina is a freshman attending community college in the LA neighborhood of Wilmington. He is a youth organizer with one of the groups filing the original lawsuit, Youth for Environmental Justice, a program of the California-focused nonprofitCommunities for a Better Environment.

These youth groups, which also include the South Central Youth Leadership Coalition and youth members of the Center for Biological Diversity, first filed suit against the City of LA in November 2015.

The lawsuit claimed that the City’s pattern of reviewing — and “rubberstamping” — applications to open new oil wells and drill again in old ones was not only in violation of the California Environmental Quality Act (CEQA), which requires environmental impact reviews and public input on projects which could cause environmental harm, it also unfairly put the health of communities of color at risk.

Instead of each application undergoing a case-by-case review of the potential environmental, health, and safety impacts, the City of LA was regularly granting exemptions from these reviews “as rule of law,” according to Gladys Limón, an attorney for Communities for a Better Environment.

And, as outlined in the lawsuit:

“Drilling sites in South Los Angeles and Wilmington — neighborhoods where the vast majority of residents are black and Latino — are on average hundreds of feet closer to schools, playgrounds, and parks than drilling sites in neighborhoods such as West Los Angeles and Wilshire with larger numbers of white residents.”

Limón says that this information surfaced after communities in areas affected by expanded drilling activity started talking to each other and realized “the same sorts of patterns that they were experiencing were true for other communities.” At that point, her organization began digging through city files and investigating whether that might be the case.

“Sure enough, these patterns did emerge,” Limón told DeSmog.

And when the city placed certain conditions on the drilling activities, such as enclosing the derricks in sound-proof structures or using electric drilling rigs instead of more polluting diesel rigs, that’s when Limón says the pattern of discrimination arose. “We believe there were inferior conditions that were required in communities of color,” she said.

Getting to Know the Drill

In Wilmington, near the community where Molina lives, a single drilling company, Warren E&P, opened 540 new oil wells in the last couple decades, and it’s not the only company operating there.

The community is afflicted by one of the highest cancer rates in the southern part of the state. Oil and gas drilling is associated with pollution known to have numerous health impacts, ranging from asthma and headaches to a higher risk of cancer in children. Some of these wells overlook a little league baseball field.

Molina has a personal stake in how oil drilling happens in LA. Not only does it occur in his communities, but he has suffered from asthma since he was six years old, with several attacks severe enough to land him in the hospital. His experience learning about the drilling activities in his communities and being a part of the lawsuit fighting for stricter enforcement of protections surrounding those activities was empowering, a feeling he hopes to transfer to other people of color like him.

“Not many people in our community know about the issue that we are facing,” Molina said. “Honestly, being part of this really did open my eyes to see what is going on in my community, and it made me feel even more motivated to do something for my community.”

City Takes Closer Look at Drilling Applications

On September 19, 2016, the Los Angeles Department of City Planning issued a memorandum amending the oil and gas drilling application process and setting new guidelines for the way it reviews those applications.

The application now includes an environmental assessment form that Limón says should enable the Planning Department to evaluate potential environmental impacts of each project. The City says these moves are meant to bring it into line with state law.

“We're pleased to have worked with the community and Planning Department to advance environmental justice by better protecting the health of our residents near oil facilities,” Los Angeles City Attorney Mike Feuer said in a statement.

These changes include expanded opportunities for public participation, and are an effort “to fully recognize that people living and working in proximity to oil and gas operations have a substantial interest in participating in the review process for these projects,” according to a statement from the City.

Oil Industry Follows (Law)Suit

Sabrina Lockhart, communications director for CIPA, has a different take on the City’s memo. “It’s disappointing that the rules were created without input from the entities that must comply with them,” she told DeSmog.

Lockhart says that the petroleum association believes the City’s new guidelines for drilling applications, issued a week and a half ahead of the City Council vote approving the settlement, were a condition of settling, and that CIPA’s only recourse for not having a say in those guidelines’ development was to sue both the City and youth groups.

“Even though the settlement itself doesn’t name it, right at the same time the settlement was reached, the city announced these new regulations,” said Lockhart. “We are fighting in the courts because we believe that it unilaterally and improperly overrides state law.”

Limón, however, considers the countersuit a retaliatory attempt to silence youth of color and “bully” the City. She also provided DeSmog court documents showing email exchanges between the youth groups’ lawyers and CIPA’s, inviting the petroleum association to discuss its position and potential settlement.

“The oil industry is not used to communities of color standing up against policies and practice that one, give it free rein to pollute communities and two, challenge their profits,” said Limón. “In this case, the youth of color courageously challenged those practices and they prevailed.”

CIPA does not appear to have accepted these offers to discuss settlement, instead pursuing legal actions attempting to access all previous information related to settlement discussions between the City and youth groups.

So far, the courts have not granted CIPA this request and are currently examining whether its suit could be considered retaliatory under state law.

Meanwhile, Molina continues to walk past oil derricks on his way to community college in Wilmington. He described the countersuit by the petroleum association as “just wrong.”

“That is another thing that just opened my eyes to see how the world works,” he said.

SUNDAY, FEBRUARY 28, 2016

Conspiracy theorising Lamar Smith can't hack change

I see that Lamar Smith hasn't been able to find any evidence for his conspiracy theory yet, so he's asked NOAA for more emails. He complained that he "only" got 301 pages of emails. He figured the search terms were "unnecessarily narrow". If you want to get a feel for Lamar's conspiracy theory that climate change is a Presidential hoax, he now wants NOAA to send him all emails containing any of the following words:

Karl

buoy

ship

Night Marine Air Temperature

temperature

climate

change

Paris

U.N.

United Nations

clean power plan

regulations

Environmental Protection Agency (EPA)

President

Obama

White House

Council on Environmental Quality (CEQ)

He gave them seven whole days. In his next request, he'll no doubt separate words white from house, united from nations, clean from power and plan, Council from quality, and maybe boy as well as buoy, etc. He might also widen temperature to temp, which would allow him to get any emails relating to temporary whatever.

I sincerely hope that he gets sent all emails that include stuff like:

"there's been a change to my mobile phone number"

"can you change the staff meeting to 2:00 pm"

"Lamar Smith is spelt with an "i" not a "y". Change all versions of "Smyth" to "Smith""

"please ship the staplers to our Seattle office"

If he does, then he'll probably spend years trying to work out the coded messages in the above.

This could go on forever. Will Lamar Smith call for NOAA's budget to be expanded to cover the cost of his private army of email searchers? As Gavin Schmidt tweeted:

Gavin Schmidt @ClimateOfGavin

More abuse of congressional authority for pointless fishing expeditions:

"All email containing the word 'change'" https://twitter.com/sjvatn/status/703367492027195394 …

3:55 AM - 27 Feb 2016

33 33 Retweets 21 21 likes

Nobody makes them like the Republican Party in the USA. Nutty as a fruit cake.

References

Latest demand letter from Lamar Smith to NOAA

Congressman demands more NOAA e-mails about climate study - article by Scott K Johnson at Ars Technica

http://blog.hotwhopper.com/2016/02/conspiracy-theorising-lamar-smith-cant.html

A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.^[1]

The typical SLAPP plaintiff does not normally expect to win the lawsuit. The plaintiff's goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. In some cases, repeated frivolous litigation against a defendant may raise the cost of directors and officers liability insurance for that party, interfering with an organization's ability to operate.^[2] A SLAPP may also intimidate others from participating in the debate. A SLAPP is often preceded by a legal threat. The difficulty is that plaintiffs do not present themselves to the Court admitting that their intent is to censor, intimidate or silence their critics. Hence, the difficulty in drafting SLAPP legislation, and in applying it, is to craft an approach which affords an early termination to invalid abusive suits, without denying a legitimate day in court to valid good faith claims.

[hide]

Characteristics

SLAPPs take various forms. The most common used to be a civil suit for defamation, which in the English common law tradition was a tort. The common law of libel dates to the early 17th century and (unusual in English law) is reverse onus, meaning, once someone alleges a statement is libelous, the burden was on the defendant to prove that it is not. In England and Wales, the Defamation Act 2013 removed most of the uses of defamation as a SLAPP by requiring the proof of special damage. Various abusive uses of this law including political libel (criticism of the political actions or views of others) have ceased to exist in most places, but persist in some jurisdictions (notably British Columbia and Ontario) where political views can be held as defamatory.

A common feature of SLAPPs is forum shopping, wherein plaintiffs find courts that are more favourable towards the claims to be brought than the court in which the defendant (or sometimes plaintiffs) live.^[3]

Other widely mentioned elements of a SLAPP are the actual effectiveness at silencing critics, the timing of the suit, inclusion of extra or spurious defendants (such as relatives or hosts of legitimate defendants), inclusion of plaintiffs with no real claim (such as corporations that are affiliated with legitimate plaintiffs), making claims that are very difficult to disprove or rely on no written record, ambiguous or deliberately mangled wording that lets plaintiffs make spurious allegations without fear of perjury, refusal to consider any settlement (or none other than cash), characterization of all offers to settle as insincere, extensive and unnecessary demands for discovery, attempts to identify anonymous or pseudonymous critics, appeals on minor points of law, demands for broad rulings when appeal is accepted on such minor points of law, and attempts to run up defendants' costs even if this clearly costs more to the plaintiffs.^[citation ^needed]

Several jurisdictions have passed anti-SLAPP laws, designed to quickly remove cases out of court. In many cases, the plaintiff is also required to pay a penalty for bringing the case, known as a SLAPP-back.

History

The acronym was coined in the 1980s by University of Denver professors Penelope Canan and George W. Pring. ^[4] The term was originally defined as "a lawsuit involving communications made to influence a governmental action or outcome, which resulted in a civil complaint or counterclaim filed against nongovernment individuals or organizations on a substantive issue of some public interest or social significance." The concept's originators later dropped the notion that government contact had to be about a public issue to be protected by the Right to Petition the Government, as provided in the First Amendment. It has since been defined less broadly by some states, and more broadly in one state (California) where it includes suits about speech on any public issue. ^[5]

...

United States

Twenty-eight states, the District of Columbia, and Guam have enacted statutory protections against SLAPPs.^{[25][verification} ^needed] These states are Arizona, Arkansas, California, Delaware, Florida, Georgia, Hawaii,Illinois, Indiana, Louisiana, Maine, Maryland, Massachusetts, Minnesota,^[26] Missouri, Nebraska, Nevada, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas,^[27][28] Utah,Vermont, and Washington. In Colorado and West Virginia, the courts have adopted protections against SLAPPs. These laws vary dramatically in scope and level of protection, and the remaining states lack specific protections.

There is no federal anti-SLAPP law. The extent to which state laws apply in federal courts is unclear, and the Circuit courts have reached different conclusions. The United States Court of Appeals for the Ninth Circuithas allowed California litigants to use their state's special motion in federal district courts located in California, in cases where the court is hearing at least one California state law claim through the doctrine ofsupplemental jurisdiction.^[29] However, the United States Court of Appeals for the First Circuit has held that the Massachusetts anti-SLAPP law, as a mere matter of procedure, does not apply in federal courts.^[30]

It has been argued that the lack of uniform protection against SLAPPs has encouraged forum shopping; proponents of federal legislation have argued that the uncertainty about one's level of protection has likely magnified the chilling effect of SLAPPs.^[31]

In December 2009, Rep. Steve Cohen (D–Tennessee) introduced the Citizen Participation Act in the U.S. House.^[32] This marks the first time the Congress has considered federal anti-SLAPP legislation, though the Congress enacted the SPEECH Act on the closely related issue of libel tourism.^[33] Like many state anti-SLAPP laws, H.R. 4364 would allow the defendant of a SLAPP to have the suit quickly dismissed and to recover fees and costs.

California

California has a unique variant of anti-SLAPP legislation which has led to a significant volume of SLAPP litigation in that state. A search for reported cases on SLAPP litigation in 2009 found 1,386 cases for the State of California alone. The rest of the states combined had about 341, of which Massachusetts accounted for 176, raising the question whether California's SLAPP statute is accomplishing its primary objective of reducing costly litigation.^[34] The U.S. state of California enacted Code of Civil Procedure § 425.16 in 1992, a statute intended to frustrate SLAPPs by providing a quick and inexpensive defense.^[5] It provides for a special motion that a defendant can file at the outset of a lawsuit to strike a complaint when it arises from conduct that falls within the rights of petition or free speech. The statute expressly applies to any writing or speech made in connection with an issue under consideration or review by a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, but there is no requirement that the writing or speech be promulgated directly to the official body. It also applies to speech in a public forum about an issue of public interest and to any other petition or speech conduct about an issue of public interest.

To win an anti-SLAPP motion, the defendant must first show that the lawsuit is based on claims related to constitutionally protected activities, typically First Amendment rights such as free speech, and typically seeks to show that the claim lacks any basis of genuine substance, legal underpinnings, evidence, or prospect of success. If this is demonstrated then the burden shifts to the plaintiff, to affirmatively present evidence demonstrating a reasonable probability of succeeding in their case by showing an actual wrong would exist as recognized by law, if the facts claimed were borne out.

The filing of an anti-SLAPP motion stays all discovery. This feature acts to greatly reduce the cost of litigation to the anti-SLAPP defendant, and can make beating the motion extremely difficult for the plaintiff, because they effectively must prove their case has at least a basis of visible legal merit and is not merely vexatious, prior to discovery.

If the special motion is denied, the order denying the motion is immediately appealable. Defendants prevailing on an anti-SLAPP motion (including any subsequent appeal) are entitled to a mandatory award of reasonable attorney’s fees. After an anti-SLAPP motion has been filed, a plaintiff cannot escape this mandatory fee award by amending its complaint. More than 300 published court opinions have interpreted and applied California's anti-SLAPP law.^[35]

California's Code of Civil Procedure § 425.17 corrects what the Legislature found to be abuse of the anti-SLAPP statute.^[36] Signed into law on September 6, 2003, this statute prohibits anti-SLAPP motions in response to certain public interest lawsuits and class actions, and actions that arise from commercial statements or conduct. Section 425.18, signed into law on October 6, 2005, was enacted to facilitate SLAPP victims in recovering their damages through a SLAPPback (malicious prosecution action) against the SLAPP filers and their attorneys after the underlying SLAPP has been dismissed.^[37]

http://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participation

alec slapp common cause 4/15

The American Legislative Exchange Council (ALEC) [1] has threatened public interest group Common Cause with a lawsuit [2] for pointing out what the public record has made clear: ALEC denies the scientific consensus on climate change [3].

As first reported by The Washington Post [4], ALEC's lawyers Alan Dye and Heidi Abegg wrote a cease-and-desist letter to Common Cause president Miles Rapoport. Dye and Abegg demanded that Common Cause stop calling ALEC a cog in the climate denial machine.

“We demand that you cease making inaccurate statements regarding ALEC, and immediately remove all false or misleading material from the Common Cause, and related, websites within five business days,” they wrote [2]. “Should you not do so, and/or continue to publish any defamatory statements, we will consider any and all necessary legal action to protect ALEC.”

ALEC critics call the organization a “corporate bill mill [5].”

Dye and Abegg also demanded an immediate and public retraction of statements the Common Cause has made about ALEC with regards to climate denial.

ALEC Climate Denial Lawsuit [2]

Further, Dye and Abegg argued that ALEC — contrary to the vast amount of evidence [6] collected by those who research the organization — does not deny climate change.

Common Cause Fires Back

Common Cause, through its legal counsel at the firm Wilmerhale, have hit back and stands by its initial claims.

“Common Cause rejects ALEC's allegations and stands by the fairness and accuracy of its statements and reporting,” wrote Wilmerhale attorney Vinita Ferrera in a March 25 letter [7]. “Common Cause's statements are legitimate assertions of opinion based on the public record and entirely consistent with how ALEC had discussed, characterized, and approached the issue of climate change.”

The organization also said it will not retract its statements, nor will it offer any public corrections, as requested by ALEC.

“Strong-Armed into Silence”

In a press release [8], Common Cause called ALEC's legal maneuvering “meritless.”

“ALEC’s demands and legal threats are an effort to shut down debate about its policies and matters of national importance. They seek to chill our right to advocate for the public interest,” said Rapoport, “We stand by our opinion, will continue to participate in these important national debates and will not be strong-armed into silence.”

As The Washington Post reported, the legal threat by ALEC comes as the group feels the heat after numerous companies have dropped their ALEC memberships [9] due to its climate change stance.

DeSmogBlog, the Center for Media and Democracy, Common Cause and many other organizations have launched the website ALECClimateChangeDenial.org [10], which documents ALEC's long history of climate denial.

Tags:

Common Cause [13]

Vinita Ferrera [14]

Heidi Abegg [15]

Miles Rapoport [16]

Alan Dye [17]

Corporate Bill Mill [18]

ALEC Climate Denial [19]

ALEC Climate Change Denial [20]

Law [21]

Legal [22]

lawsuits [23]

litigation [24]

Cease-and-Desist Letter [25]

Cease-and-Desist [26]

climate skepticism [27]

ALEC [28]

american legislative exchange council [1]

climate change [29]

climate denial [30]

WilmerHale [31]

ALECClimateChangeDenial.org [32]

The Washington Post [33]

Read more: American Legislative Exchange Council Threatens Lawsuit Against Critics Who Point Out ALEC's Climate Denial [34]

Source URL: http://www.desmogblog.com/2015/04/05/alec-climate-denial-lawsuit-against-critics

Links:

[1] http://www.desmogblog.com/directory/vocabulary/6907

[2] http://www.commoncause.org/issues/more-democracy-reforms/alec/alec-cease-and-desist-letter.pdf

[3] http://alecclimatechangedenial.org/

[4] http://www.washingtonpost.com/news/energy-environment/wp/2015/04/05/this-conservative-group-is-tired-of-being-accused-of-climate-denial-and-is-fighting-back/

[5] http://www.sourcewatch.org/index.php/ALEC_Corporations

[6] http://www.commoncause.org/issues/more-democracy-reforms/alec/fact-sheet-on-alec-and-climate-change.pdf

[7] http://www.commoncause.org/issues/more-democracy-reforms/alec/wilmerhale-common-cause-response-to-alec.pdf

[8] http://www.commoncause.org/press/press-releases/alec-tries-to-silence-critics.html

[9] http://www.sourcewatch.org/index.php/Corporations_that_Have_Cut_Ties_to_ALEC

[10] http://alecclimatechangedenial.org/climate-denier-speakers-1

[11] http://www.shutterstock.com/cat.mhtml?lang=en&language=en&ref_site=photo&search_source=search_form&version=llv1&anyorall=all&safesearch=1&use_local_boost=1&search_tracking_id=lGidWAGWV6pezkN_5RU_qQ&searchterm=litigation&show_color_wheel=1&orient=&commercial_ok=&media_type=images&search_cat=&searchtermx=&photographer_name=&people_gender=&people_age=&people_ethnicity=&people_number=&color=&page=1&inline=182158421

[12] http://www.shutterstock.com/gallery-50527p1.html

[13] http://www.desmogblog.com/directory/vocabulary/5710

[14] http://www.desmogblog.com/directory/vocabulary/20234

[15] http://www.desmogblog.com/directory/vocabulary/20232

[16] http://www.desmogblog.com/directory/vocabulary/20233

[17] http://www.desmogblog.com/directory/vocabulary/20229

[18] http://www.desmogblog.com/directory/vocabulary/9753

[19] http://www.desmogblog.com/directory/vocabulary/20230

[20] http://www.desmogblog.com/directory/vocabulary/20231

[21] http://www.desmogblog.com/directory/vocabulary/6404

[22] http://www.desmogblog.com/directory/vocabulary/10100

[23] http://www.desmogblog.com/directory/vocabulary/5790

[24] http://www.desmogblog.com/directory/vocabulary/9000

[25] http://www.desmogblog.com/directory/vocabulary/20225

[26] http://www.desmogblog.com/directory/vocabulary/20226

[27] http://www.desmogblog.com/directory/vocabulary/7453

[28] http://www.desmogblog.com/directory/vocabulary/6853

[29] http://www.desmogblog.com/directory/vocabulary/939

[30] http://www.desmogblog.com/directory/vocabulary/3062

[31] http://www.desmogblog.com/directory/vocabulary/20227

[32] http://www.desmogblog.com/directory/vocabulary/20228

[33] http://www.desmogblog.com/directory/vocabulary/8891

[34] http://www.desmogblog.com/2015/04/05/alec-climate-denial-lawsuit-against-critics

bkgd see 1st amend:

The First Amendment was meant to make one thing indisputably clear: free speech was the basis for a government of the people. Without a free press, as well as the ability to openly gather, debate, protest, and criticize, how would the people be able to judge their government's adherence to the other rights? How could people vote knowledgeably if they didn’t know what was being done in their name by their government? An informed citizenry, Thomas Jefferson stated, was "a vital requisite for our survival as a free people."

That was how it was seen long ago. In Post-Constitutional America, however, the government strives to "control the message," to actively thwart efforts to maintain a citizenry informed about what’s done in its name, a concept that these days seems as quaint as Jefferson's powdered wig. There are far too many examples of the post-9/11 erosion of the First Amendment to list here. Let's just look at a few important ones that tell the tale of what we have lost since 9/11.

(Lack of) Freedom of Information

In 1966, an idea for keeping Americans better informed on the workings of their government was hatched: the Freedom of Information Act (FOIA).Strengthened in 1974, it began with the premise that, except for some obvious categories (like serious national security matters and personal information), the position of the government should be: everything it does is available to the public. Like the Bill of Rights, which made specific the limits of government, FOIA began with a presumption that it was the government’s duty to make information available -- and quickly -- to the people, unless a convincing case could be made otherwise. The default position of the FOIA switch was set to ON.

Three decades later, the FOIA system works far differently. Agencies are generally loath to release documents of any sort and instead put their efforts into creating roadblocks to legitimate requests. Some still require signatures on paper. (The State Department notes, “Requests for personal information cannot be submitted electronically and should be submitted by mail.”) Others demand hyper-detailed information like the precise dates and titles of documents whose dates and titles may be classified and unavailable. The NSA simply denies almost all FOIA requests out of hand, absent a court order.

Most federal agencies now regard the deadline mandated for a response as the time period to send out a “request received” note. They tend to assign only a few staff members to processing requests, leading to near-endless delays. At the State Department, most FOIA work is done on a part-time basis by retirees. The CIA won’t directly release electronic versions of documents. Even when a request is fulfilled, “free” copying is often denied and reproduction costs exaggerated.

In some cases, the requested records have a way of disappearing or are simply removed. The ACLU’s experience when it filed an FOIA-style request with the Sarasota police department on its use of the cell phone surveillance tool Stingraycould be considered typical. The morning the ACLU was to review the files, Federal Marshals arrived and physically took possession of them, claiming they had deputized the local cops and made the files federal property. An ACLU spokesperson noted that, in other cases, federal authorities have invoked the Homeland Security Act to prevent the release of records.

John Young, who runs the web site Cryptome and is a steadfast FOIA requester,stated, “Stonewalling, delay, brush-off, lying are normal. It is a delusion for ordinary requesters and a bitch of a challenge for professionals. Churning has become a way of life for FOIA, costly as hell for little results.”

Sealed Lips and the Whistleblower

http://www.motherjones.com/print/185211

Right-Wing Think Tank FOIAs Climate Scientists

American Tradition Institute seeks the release of emails with journalists to find details that could be used to discredit science.

By Suzanne Goldenberg | Wed Jul. 11, 20126:00 AM EDT

This*story* [1]first appeared on theGuardian [2]website and is reproduced here as part of the*Climate Desk* [3]collaboration.

The ultra-conservative American Tradition Institute [4] has expanded its legal pursuit of climate scientists, using transparency laws to try to flush out potentially damaging emails.

The strategy—used to seek records from prominent scientists such as Michael Mann [5]—is seen by scientists as an excuse to try to dig up embarrassing or damaging communications that could be used to discredit climate science.

Now for the first time the media is being drawn in as well, with ATI seeking the release of scientists' communications with specific journalists. The list of news organisations targeted by the request [6] includes the New York Times, the Associated Press, Frontline, and the Guardian.

Earlier requests focused on exchanges between scientists. "We view this as a new chapter," said Jeff Ruch, a lawyer working with the Climate Science Legal Defence Fund [7]. "Before they were going after interactions between individual scientists. This is basically a spying operation to see who are you talking to, but presumably the idea is the same: to find material that is potential of use in discrediting a scientist."

Christopher Horner, the director of ATI's environmental law center, deployed the new tactic for the first time last week, in a July 5 open records request to two scientists at public universities in Texas.

Horner, who holds posts at the Competitive Enterprise Institute [8] as well as ATI, has led the legal pursuit of climate scientists through open records laws.

He has sought access to communications from Michael Mann, the author of the hockey stick graph, the NASA climate scientists James Hansen and Gavin Schmidt, and this year, Katharine Hayhoe, an atmospheric scientist at Texas Tech University.

Hayhoe turned came to public prominence when Newt Gingrich, the former Republican presidential candidate, decided to cut a chapter she had written for a forthcoming book [9] on the environment. She and Andrew Dessler, a climate scientist at Texas A&M University, were targeted again last week [10] when Horner demanded their universities turn over all of the scientists' email exchanges with specified journalists dating back to November 1, 2009.

Horner also asked the scientists to hand over communications with the Union of Concerned Scientists [11], which has also been involved in defending climate scientists, as well as Richard Ades, who has served as a public relations consultant to scientists. The two universities are complying with the request.

Horner told the *Washington Examiner* [12]—a free newspaper owned by the conservative billionaire Philip Anschulz—that his decision to target contacts between scientists and journalists was prompted by a front-page article in the New York Times on clouds and New York Timeson clouds and climate change [13] contrarians. In email exchanges with the Guardian, he indicated he was looking for evidence that scientists were working with journalists and advocacy groups to undermine climate change dissenters.

Horner wrote he was concerned with "taxpayer servants who also engage in quite a bit of activism and – as famously noted in certain in famous emails, all also subject to freedom of information laws—recruiting of journalists 'to investigate and expose' those they do not like or with whom they disagree."

"You might be surprised to learn that the Texas A&M email production shows the academics actually forwarding their email discussions outside their circle. To New York Times reporters, for example," he wrote.

Scientists and campaign groups describe Horner's records requests as a "fishing expedition," aimed at trying to damage climate science.

Ruch said such motivated use of transparency laws was on the rise—and not only by conservative groups such as ATI. This year alone, his organisation, Public Employees for Environmental Responsibility, had heard from seven other scientists who had been subject to open record requests after appearing as expert witnesses in court cases involving mountaintop coal mining.

Last month, a pair of oceanographers accused BP of infringing on their academic freedom by demanding the release of email related to the Gulf of Mexico oil disaster [14]. Meanwhile, some public universities have begun to fight back against such requests. Penn State University, where Mann now works, is not bound by open records requests. Other public universities are moving in the same direction.

Horner defended his use of transparency laws, arguing the scientists' objections were themselves political. "Our motivations are surely whatever Greenpeace's were when pioneering these requests," he said in an email. "The truth is, they see no problem with using transparency laws this way. They only have problems with people they do not like using them as such."

At the very least, such open records requests are a distraction, said Hayhoe. "These types of requests are disruptive. They require a lot of attention to respond carefully and they take away time spent doing teaching, mentoring, or doing research. For a scientist who is happiest working in a lab or on a computer it is frightening to be accused of things that are completely without basis."

At the other extreme, such records requests represent an escalation of efforts to politicise climate science, said Dessler.

"At some level it's really dirty tricks what these people are doing. They are not using the open records request in any way it is meant to be used," said Dessler. "It's certainly reasonable to get a record of what transpired—how a decision was made, how a contract was awarded, why a university president was fired. But they are not trying to use it to figure out how decisions are being made. What they want to do is to find something embarrassing, something they can use in a political debate."

Source URL: http://www.motherjones.com/environment/2012/07/american-tradition-institute-freedom-information-law-climate-scientists

Links:

[1] http://www.guardian.co.uk/environment/2012/jul/10/american-tradition-institute-climate-science

[2] http://www.guardiannews.com/

[3] http://climatedesk.org/

[4] http://www.atinstitute.org/

[5] http://www.guardian.co.uk/environment/2012/feb/17/michael-mann-climate-war?intcmp=239

[6] http://www.scribd.com/doc/99680945/Ati-Dessler-Txam-Foi-Request-i

[7] http://climatesciencedefensefund.org/

[8] http://cei.org/expert/christopher-c-horner

[9] http://www.guardian.co.uk/environment/2012/jan/06/climate-scientist-newt-gingrich-book-chapter

[10] http://www.scribd.com/doc/99680950/Ati-Dessler-Txam-Foi-Request-II

[11] http://www.ucsusa.org/

[12] http://washingtonexaminer.com/sunday-reflection-the-collusion-of-the-climate-crowd/article/2501500

[13] http://www.motherjones.com/_fcksavedurl=

[14] http://www.guardian.co.uk/business/2012/jun/04/bp-accused-attack-scientific-freedom

A pair of scientists have accused BP of an attack on academic freedom after the oil company successfully subpoenaed thousands of confidential emails related to research on the Gulf of Mexico oil disaster.

The accusation from oceanographers Richard Camilli and Christopher Reddy offered a rare glimpse into the behind-the-scenes legal manoeuvring by BP in the billion-dollar legal proceedings arising from the April 2010 blow-out of its well.

It also heightened fears among scientists of an assault on academic freedoms, following the legal campaign against a number of prominent climate scientists.

In an opinion piece in the Boston Globe, the scientists, from the Woods Hole Oceanographic Institution, said they volunteered in the early days of the spill to deploy robotic technology to help BP and the Coast Guard assess how much oil was gushing from the well.

The two researchers turned over some 50,000 pages of research notes and data to BP. But BP demanded more, and obtained a court subpoena for the handover of more than 3,000 confidential emails. The scientists handed over the emails last week – but with severe misgivings, they wrote.

"Our concern is not simply invasion of privacy, but the erosion of the scientific deliberative process," they wrote. They feared the email exchanges, in which the scientists discuss hitting dead ends or challenging each other on their conclusions, were open to deliberate misinterpretation.

"Incomplete thoughts and half-finished documents attached to emails can be taken out of context and impugned by people who have a motive for discrediting the findings. In addition to obscuring true scientific findings, this situation casts a chill over the scientific process. In future crises, scientists may censor or avoid deliberations, and more importantly, be reluctant to volunteer valuable expertise and technology that emergency responders don't possess."

The struggle over the emails indicates the looming legal significance of any data related to the flow of oil from the stricken well.

A former BP engineer was charged last April with destroying evidence after he deleted text messages discussing the flow of oil from the stricken well.

The justice department indicated at the time that Kurt Mix, the former engineer, was only the first to face criminal charges. The Wall Street Journal reported last week that officials were investigating whether BP executives lied to Congress about the spill during closed door briefings in the early days of the disaster.

A spokesman for BP declined to respond to the scientists on Monday.

Michael Halpern, of the Union of Concerned Scientists, said it was a shoddy way to treat scientists who had volunteered to help the country in a time of crisis.

"The Woods Hole scientists saw a country in need and tried to do the right thing, and in the process got burned by a system that does not protect them. And the potential consequences are profound. Sure, scientists might be less likely to ask tough questions of each other in an environment where every sentence they write could be misrepresented," he wrote. "But they will also begin to think twice about using their knowledge to solve pressing and urgent national problems."

http://www.theguardian.com/business/2012/jun/04/bp-accused-attack-scientific-freedom

===

These "Big 6" pesticide and GMO firms are active on the islands in a big way, making use of the three to four annual growing seasons to develop new GMO seeds more quickly. The development of new GMOs by these pesticide and seed conglomerates goes hand-in-hand with heavy pesticide use in some of the islands' experimental crop fields, new data show.

Kaua'i County -- consisting primarily of the island of Kaua'i, known as Hawai'i's "Garden Isle" and home to Waimea Canyon State Park -- passed alaw in November 2013 that requires disclosure of pesticide use and GMO crops sewn by growers and created buffer zones around schools, parks, medical facilities, and private residences. The law is set to go into effect in August 2014.

Hawai'i County banned GMOs altogether in November 2013, and a Maui County initiative to ban GMOs recentlyobtained enough citizen signatures to be placed on the November 2014 ballot.

Since experiencing these setbacks, the big agricultural firms have retaliated in a big way.

Syngenta, DuPont Pioneer, Agrigenetics (doing business as Dow AgroSciences), and BASF have sued Kaua'i to block its law.

Monsanto, Bayer, Syngenta, DuPont Pioneer, and several associated trade groups spent over $50,000 lobbying the state legislature from January through April 2014, as legislators considered bills to override the county laws, according to data from the Hawaii State Ethics Commission (as reported through June 6, 2014) analyzed by the Center for Media and Democracy/Progressive Inc. (CMD).

Of these, the Hawai'i Crop Improvement Association (whose members include Dow AgroScience, Monsanto, Pioneer Hi-Bred International, Syngenta, and BASF) had the highest expenditures at $10,800; the powerful national trade association the American Chemistry Council (whose members include BASF, Bayer, Dow, and DuPont) and Syngenta each spent $10,000; and Monsanto spent $8,982.

Big Ag Money Moves to the Ballot

===

SIOUX FALLS, S.D. (AP) — A federal judge on Wednesday moved a South Dakota beef processing company's defamation lawsuit against ABC News back to state court.

Beef Products Inc. sued American Broadcasting Companies Inc. and ABC News Inc. for defamation in September over its coverage of a meat product the company calls lean, finely textured beef but that critics dubbed "pink slime." The meat processor claims the network damaged the company by misleading consumers into believing the product is unhealthy and unsafe. BPI is seeking $1.2 billion in damages.

On Wednesday, U.S. District Judge Karen Schreier ordered the case back to the circuit court in Union County.

Erik Connolly, a lawyer for BPI, said the company is looking forward to presenting its case.

"We originally filed the case in state court because that was the proper jurisdiction," Connolly said in an email. "The Court's decision confirms we were correct."

Lawyers for ABC wanted the suit moved to federal district court in South Dakota because it said the parties involved are all from different states. A lawyer for the broadcasting company did not immediately respond to a request for comment.

In order for the federal court to take a case under the concept of diversity jurisdiction, none of the defendants must hold citizenship in the same state where any plaintiff holds citizenship.

After filing a Freedom of Information Act request with the Richmond, Virginia, Police Department for police training documents, Mo Karn received much more than expected in return: homeland security and crowd control guides that show how the police target protests.

The police filed for an emergency court order yesterday to prohibit Karn from publicizing any of the documents, which should never have been released. The cops’ reasoning?“Defendant Mo Karn is a known and admitted anarchist.”

The documents, however, have already been published online. And buried in the training guides are insights into three trends in law enforcement that have been occurring not just in Virginia, but nationally: the demonization of protest, the militarization of police, and turning local cops into “terrorism” officials.

The Demonization of Protest

The Richmond Police Department’s Emergency Operations Planincludes a section on “civil disturbances.” While this sounds innocuous, “civil disturbances” are defined so broadly as to include what the police call “dissident gatherings.”

“The City of Richmond is a target rich environment” for antiwar protesters, the document says. And it warns that police and homeland security have reason to be increasingly concerned:

“Current training and intelligence reveals that protestors are becoming more proficient in the methods of assembly.”

Militarization of Local Police

Such a depiction of “assembly” (a First Amendment right) as a “disturbance” and a threat is all the more troubling when put in the context of the other police department guides. Richmond’s Crowd Management Operating Manual is for the police unit assigned to large protests (no experience required). Among the tools that the crowd management team are issued include riot shields, chemical agents, cut tools, helmets, body armor, cameras, video cameras, batons, gas masks, and a “mass arrest kit.”

Deputizing Local Cops as Counter-terrorism Officials

This militarization of local police is accompanied by another trend in law enforcement since September 11th: deputizing local cops to becoming “homeland security” and counter-terrorism officials. According to the Homeland Security Criminal Intelligence Unit Operating Manual, “The Richmond Police Department is under contract with the FBI to provide assistance through staffing, intelligence and equipment.” And one member of the homeland security unit is assigned to the Joint Terrorism Task Force.

The result? Documents like the Virginia Terrorism Threat Assessment. The 2009 document was created by the Virginia Fusion Center, of which the Richmond Police Department is part. Fusion centers are ostensibly designed to gather terrorism intelligence from multiple police agencies, and make us safer. In practice, they routinely label activists as “terrorists.” Among the “terrorist threats” identified in Virginia were animal rights activists, environmental activists, and anarchists.

According to the threat assessment, “The Virginia Federation of Anarchists has held two conferences in Richmond in November 2007 and January 2008″ and “Anarchist protesters at the International Monetary Fund in Washington, D.C. spilled over into Prince William County.”

Karn, meanwhile, wears her scarlet circle ‘A’ with pride, and has no problem being labeled an anarchist. The FOIA was submitted by the Wingnut Collective, a Richmond anarchist group, as part of their police accountability project.

In his court motion warning that Karn is an “anarchist,” Richmond’s Deputy Assistant Attorney Brian Telfair doesn’t allege the possibility of any violence or property destruction. Instead, he cites a blog post by Karn about acquiring government information through legal requests. The title? “FOIA Rocks!”

My new article is up at Mother Jones: “Meet the Former Punk Rocker Who Can Liberate Your FBI File.”

It’s about Ryan Shapiro, a Ph.D. student at the Massachusetts Institute of Technology who developed a FOIA technique so effective at unburying sensitive documents that the feds are asking the courts to stop him.

Check out thefull article on Mother Jones!

===

NEPA brought ppl into checks and bal 38; post watergate reforms/post earth day revived trad FF dominance of legis; FOIA ups democ/ppl power since we have access to info/sci rfk2

===

really singer; Tue, 2007-12-18 08:54 — Justin Lancaster

Alex, the source is directly from Fred Singer, in his sworn testimony. See: http://home.att.net/~espi/S-F-Singer_Deposition.pdf

This evidence is at the web site "The Cosmos Myth: The Real Truth about the Revelle-Gore Story". See in particular Singer's deposition at page 67 and page 125, where he acknowledges Balling's contribution to the drafting. Singer admits he cannot recall any contributions or feedback from Revelle during any of the drafting, but there were numerous contributions from Balling, Michaels, Lindzen, Ellsaesser and Nordhaus. Previous to this group act, it is documented that Singer, Balling and Michaels had meetings hosted by factions of the energy industry focused on "public relations", which was the cover for an intentional misinformation campaign to sway the views of the public, journalists and the U.S. Government.

===

early use; tobacco: Manage the media. Big Tobacco's advertising dollars muffle criticism in the print media, while its lawyers intimidate broadcasters with lawsuits. In one historic case, ABC killed an outstanding TV documentary. Mother Jones, which was leaked a copy of the tape, prints the edited transcript.

===

http://www.popsci.com/science/article/2012-06/battle-over-climate-change?single-page-view=true

Those crude acts of harassment often come alongside more-sophisticated legal and political attacks. Organizations routinely file nuisance lawsuits and onerous Freedom of Information Act (FOIA) requests to disrupt the work of climate scientists. In 2005, before dragging Mann and other climate researchers into congressional hearings, Texas congressman Joe Barton ordered the scientists to submit voluminous details of working procedures, computer programs and past funding—essentially demanding that they reproduce and defend their entire life’s work. In a move that hearkened back to darker times, Oklahoma senator James Inhofe, the ranking member of the Senate’s Environment and Public Works Committee, released a report in 2010 that named 17 prominent climate scientists, including Mann, who, he argued, may have engaged in “potentially criminal behavior.” Inhofe outlined three laws and four regulations that he said the scientists may have violated, including the Federal False Statements Act—which, the report noted, could be punishable with imprisonment of up to five years.

===

also attacks on activists SLAPP http://www.sourcewatch.org/index.php?title=SLAPP**

http://www.sourcewatch.org/index.php/FOIA

===

chevron sues AG? and shareholders: http://grist.org/news/we-got-a-copy-of-the-subpoena-chevron-sent-a-rebellious-shareholder/**

WI ALEC shift to gmail to duckhttp://www.prwatch.org/node/11771

CMD and Common Cause Prevail in Open Records Lawsuit Against ALEC Legislators in Wisconsin

by PRW Staff — October 30, 2012 - 1:43pm

Topics: Corporations, Democracy, Politics

Projects: ALEC Exposed, Wisconsin Protests

Mountain Injustice

http://www.counterpunch.org/2010/03/02/mountain-injustice/

by TRICIA SHAPIRO

----

kochs fight back vogel

2011

RANCHO MIRAGE, Calif. – Faced with an avalanche of bad publicity after years of funding conservative causes in relative anonymity, the billionaire industrialist Koch brothers, Charles and David, are fighting back.

They’ve hired a team of PR pros with experience working for top Republicans including Sarah Palin and Arnold Schwarzenegger to quietly engage reporters to try to shape their Koch coverage, and commissioned sophisticated polling to monitor any collateral damage to the image of their company, Koch Industries.

At the same time, through their high-priced lawyers, private security detail and influential allies in conservative politics and media, the Kochs have played hard ball with critics and suspected foes.

Young environmental activists who pranked them have been hit with a lawsuit seeking more than $100,000 in damages, and the leak of an internal document describing their political activities resulted in an investigation – complete with document analysis and interviews of suspects – that eventually identified the mole.

===

ATI schnare on academia: http://www.atinstitute.org/ati-counsel-debates-aaup-counsel-on-transparency/**

FOIA

http://en.wikipedia.org/wiki/Freedom_of_Information_Act_%28United_States%29

hist, not abuse

pbs; History: The Freedom of Information Act, enacted in 1966, was the first law that gave Americans the right to access the records of federal agencies. The legislation was the brainchild of California Congressman John Moss. Due to his zeal for making information public, Moss's own FBI file, recently obtained under FOIA, grew to two inches thick. In 1974, after the Watergate scandal the act was amended to force greater agency compliance. In 1991 the General Accounting Office reported over 1.9 million FOIA requests....

Changes: One of the crucial aspects of the Bush administration's stand on the FOIA will be interpretation of the standard on withholding information if there is a "sound legal basis" for doing so. This is an alteration from the previous test, instituted in 1993, which said FOIA applications should be complied with unless "disclosure would be harmful."

Recent FOIA Cases: Among FOIA cases are the following:

Clinton EPA chief Carol Browner ordered to restore files deleted from office computer.

In 2000, the Justice Department was ordered to pay $355,000 in legal fees in a case relating to the FBI crime lab. The department must also place the 53,000 pages in question available on its web site.

In March 2002, the CIA refused to release a 1917 recipe for invisible ink.

A new book by Johns Hopkins Professor Piero Gleijeses discloses new information, retrieved through FOIA, about U.S. involvement in Angola as early as 1975.

The Palm Beach Post lost its three-year bid for information on nuclear testing on a Boca Raton base in the 1950s. The government cited national security as the reason for denial.

---

Earlier this year, the Republican Party of Wisconsin filed a records request seeking materials from University of Wisconsin history professor William Crononafter he criticized Republican Gov. Scott Walker's push for legislation to weaken public-sector unions. Soon after, the Mackinac Center for Public Policy -- a free-market think tank based in Michigan -- submitted Freedom of Information Act requests seeking materials related to the Wisconsin union battle from labor studies faculty at the University of Michigan, Michigan State and Wayne State.

In the Cronon case, the University of Wisconsin's Faculty Senate passed a resolution arguing that open records laws are abused when they become partisan tools. "What was begun as a classic notion of sunshine being the best disinfectant has turned into a law that's used as a weapon to target not government officials and offices but individual public employees," said professor Howard Schweber, one of the political scientists who helped craft the resolution.

In the end, the university released some Cronon emails but withheld others, including exchanges with students protected under the Family Educational Rights and Privacy Act and what it considered private exchanges among scholars. In the Wayne State case, the think tank's action led the university to take down some pages of its Labor Studies Center's website and investigate whether they had violated state campaign finance laws. [!]

"Indeed, just last week a conservative research group in Michigan issued a public records request to the labor studies departments at three public universities in that state. The Mackinac Center for Public Policyis seeking any emails involving the Wisconsin labor turmoil from professors at the University of Michigan, Michigan State and Wayne State University. This request also is being roundly criticized as an attempt to intimidate academics who may be sympathetic to organized labor."

http://www.dailykos.com/story/2011/04/08/964895/-Maddow-on-Michigan-s-Mackinac-Center-McCarthyism-New-Cronon-Info-on-ALEC-FOIA-Tea-Party-Twist

BP goes after scientist emails on oil spill scope

http://thinkprogress.org/climate/2012/06/08/496144/bp-in-deep-water-with-scientific-integrity-advocates/

http://grist.org/natural-gas/for-pennsylvanias-doctors-a-gag-order-on-fracking-chemicals/

For Pennsylvania’s doctors, a gag order on fracking chemicals

By Kate Sheppard

Under a new law, doctors in Pennsylvania can access information about chemicals used in natural gas extraction—but they won’t be able to share it with their patients. A provision buried in a law passed last month is drawing scrutiny from the public health and environmental community, who argue that it will “gag” doctors who want to raise concerns related to oil and gas extraction with the people they treat and the general public.

http://www.prwatch.org/prwissues/1997Q2/slapp.html

This article was first published as "SLAPP Happy: Corporations That Sue to Shut You Up" in PR Watch, Volume 4, No. 3, 2nd Quarter 1997. It original article was authored by John C. Stauber and Sheldon Rampton and is used here with permission. As with all SourceWatch articles, feel free to edit and revise.

Contents[hide]

Corporate censors

The corporate technique of suing people into silence and submission has become so popular that it even carries its own cute nickname in legal circles. Such lawsuits are known in lawyer lingo as "SLAPP suits," an acronym for "strategic lawsuits against public participation." They are, in effect, fines imposed on opponents of those who can afford to use them.

"Thousands of SLAPPs have been filed in the last two decades, tens of thousands of Americans have been SLAPPed, and still more have been muted or silenced by the threat," write law professors George Pring and Penelope Canan in their 1996 book, SLAPPs: Getting Sued for Speaking Out.

In their investigation of the trend, Pring and Canan found that "filers of SLAPPs rarely win in court yet often 'win' in the real world, achieving their political agendas. We found that SLAPP targets who fight back seldom lose in court yet are frequently devastated and depoliticized and discourage others from speaking out--'chilled' in the parlance of First Amendment commentary."

SLAPP suits achieve their objectives by forcing defendants to spend huge amounts of time and money defending themselves in court.

"The longer the litigation can be stretched out . . . the closer the SLAPP filer moves to success," observes New York Supreme Court Judge J. Nicholas Colabella. "Those who lack the financial resources and emotional stamina to play out the 'game' face the difficult choice of defaulting despite meritorious defenses or being brought to their knees to settle. . . . Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined."

"Initially we saw such suits as attacks on traditional 'free speech' and regarded them as just 'intimidation lawsuits,' " Pring and Canan state. "As we studied them further, an even more significant linkage emerged: the defendants had been speaking out in government hearings, to government officials, or about government actions. . . . This was not just free speech under attack. It was that other and older and even more central part of our Constitution: the right to petition government for a redress of grievances, the 'Petition Clause' of the First Amendment."

SLAPP suits threaten the very foundation of citizen involvement and public participation in democracy. "Americans by the thousands are being sued, simply for exercising one of our most cherished rights: the right to communicate our views to our government officials, to 'speak out' on public issue," state Pring and Canan. "Today, you and your friends, neighbors, co-workers, community leaders, and clients can be sued for millions of dollars just for telling the government what you think, want, or believe in. Both individuals and groups are now being routinely sued in multimillion-dollar damage actions for such 'all-American' political activities as circulating a petition, writing a letter to the editor, testifying at a public hearing, reporting violations of law, lobbying for legislation, peaceful demonstrating, or otherwise attempting to influence government action."

SLAPPed Into Submission

Corporate libel lawsuits bring the formidable powers of government and industry together for the purpose of suppressing the views of people with complaints against the system. Ironically, the PR industry is eagerly hyping these lawsuits as populist solutions to the problem of too much government.

Tom Holt, a Washington policy wonk whose life reflects in microcosm the pattern of collusion that unites government and industry interests, epitomizes the contradictions and hypocrisy inherent in this position.

Holt began his career after receiving training at the Morton Blackwell Leadership Institute, a corporate-funded school which teaches conservative college students how to start their own campus newspapers to compete against perceived liberal bias in schools' official newspapers. Following a brief stint with the Richmond, Virginia Times-Dispatch, he became "research director" for the Commonwealth Foundation, helping churn out a study which argued that lawsuits against the tobacco industry did more harm than good, creating a "litigation superhighway where lawyers are the ones who will make the most money."

After serving as a speechwriter for two US secretaries of transportation, Holt went to work as a public-relations staffer for the right-wing Heritage Foundation before signing on at another right-wing Washington think-tank called the Capital Research Center. As a CRC "visiting fellow," he authored a book titled The Rise of the Nanny State: How Consumer Advocates Try to Run Our Lives, which accused the consumer movement of "capitalizing on the public's ignorance of science and the media's eagerness for calamity."

According to Holt, reforms are necessary to make it harder to sue corporations because "the consumer movement has imposed significant costs on industry--costs ultimately passed on to consumers--and has violated individual freedoms in a futile effort to protect us from our own actions and judgment."

In order to restore those freedoms, Holt is now calling for new laws so that corporations can use the nanny state more effectively to sue, chastise and punish their enemies. "Could lawsuits be the cure for junk science?" he asked in a 1995 issue of Priorities, the monthly publication of Elizabeth Whelan's corporate-funded right-wing advocacy group, the American Council on Science and Health.

Power to the Plaintiffs

Holt complained that current libel law "has been a major stumbling block to the progress of a lawsuit brought by the Washington Apple Growers against the National Resources Defense Council, perpetrators of the Alar scare. The growers initially filed suit in Yakima County (WA) Superior Court; but . . . the growers lost their case." (See our related story about the Alar case on page 10.) Fortunately, he added, "agribusiness is now fighting back, shepherding what are known as 'agricultural product disparagement laws' through state legislatures. . . . On the national level, the National Association of State Departments of Agriculture wants similar provisions to be included in the 1995 farm bill."

The drive has been spearheaded by the nonprofit, tax-exempt Animal Industry Foundation (AIF), which calls itself "animal agriculture's collective voice on food animal production, its effect on diet and environment, and its contributions to our quality of life."

AIF's corporate funders include the powerhouse **Burson-Marsteller**and**Hill & Knowlton** PR firms. Its trustees include a who's-who list of meat industry lobby and trade associations: the American Farm Bureau Federation, American Feed Industry Association, American Sheep Industry, American Society of Animal Science, American Veal Association., National Broiler Council, National Cattlemen's Beef Association, National Milk Producers Federation, National Pork Producers Council, National Turkey Federation, Southeastern Poultry & Egg Association and United Egg Producers.

"The model for these statutes was developed by the American Feed Industry Association," boasts an AIF newsletter. "If you'd like a copy of the model state legislation, please contact in writing Steve Kopperud at AFIA." AIF in fact shares the same address, phone and staff as AFIA--the American Feed Industry Association, a "national trade association representing the manufacturers of more than 70 percent of the primary formula livestock and poultry feed sold annually."

In a letter to Consumer Reports, Kopperud has defended the industry's rationale behind food disparagement laws, claiming that they "do not repress free speech, but rather compel a speaker to think twice about opportunistic or false statements and the damage such rhetoric can do. . . . Food disparagement laws, as tools to make more honest our national discussion of food safety, are the ultimate consumer protection."

The AIF speaks more bluntly in literature aimed at farmers: "Animal rights activists . . . threaten the survival of today's farmers and ranchers. . . . It's time to fight back! . . . through advertising, elementary school programs, publications and videos, news media outreach and public opinion research."

Rather than push for legislation at the national level, the food industry has worked quietly state-by-statewhile avoiding a controversial national debate. So far, thirteen state legislatures have approved product disparagement laws--Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Louisiana, Mississippi, North Dakota, Ohio, Oklahoma, South Dakota, and Texas. Other states are considering similar measures.

Profits Before People

Nicknamed in the news media as "banana laws" or "broccoli bills," agricultural product disparagement laws are designed to give even more power to SLAPP suits by rewriting the rules of evidence so that the food industry will have a better chance of winning in court.

The new legislation is designed specifically and expressly for the purpose of protecting industry profits by preventing people from expressing opinions that might discourage consumers from buying particular foods.

"An anti-disparagement law is needed because of incidents such as the Alar scare several years ago," argued the Ohio Farm Bureau in lobbying for the new law. "Apple producers suffered substantial financial losses when people stopped eating apples because of reports that Alar, a pesticide which can lawfully be used on apples, would cause serious heath problems. These reports were later proven to be false, but the damage had been done."

The penalties for food disparagement vary from state to state. In Idaho, defendants can be required to pay a penalty equal to the plaintiff's claimed financial damages.In Texas, the penalty is three times the damages. In Colorado, the legislation included provisions for actual jail time of up to a year.

According to Holt, the new laws place "the onus on the disparaging activist, rather than under liability law, which would place the onus on the grower or manufacturer of the disparaged product."

Shifting the onus means that instead of corporations being forced to prove their critics are wrong, food critics can be judged guilty unless they can prove that what they have said is correct.

"That type of speech, I don't feel needs to be protected," argues Kansas cattle rancher Jim Sartwelle. "It's important to have some sort of backstop in place to penalize people for making unsubstantiated comments."

Truth in the Eye of the Beholder

The problem, of course, is that no one except God can consistently and correctly distinguish between "correct" and "incorrect" views. "Who knows what the hell that is?" asks Tom Newton of the California Newspaper Publishers Association. "Scientists say there is no such thing as reliable scientific fact, that science is based on hypothesis and conclusions, and is ever-changing."

"If I say that hogs kept in confinement are being cruelly treated, am I making a mistake of fact?"asks farmer and Illinois law professor Eric Freyfogle, explaining his opposition to the legislation. "Indeed, I am not. What I'm talking about is a matter of ethics. I may view as unethical behavior that which someone else finds entirely reasonable. But that's the great benefit of a democracy based on free speech--we can air our differences in public, without worrying about the speech-police coming to arrest us."

"Agricultural disparagement statutes represent a legislative attempt to insulate an economic sector from criticism, and, in this respect, they may be strikingly successful in chilling the speech of anyone concerned about the food we eat," observes David Bederman, Associate Professor of Law at Emory University Law School. "The freedom of speech, always precious, becomes ever more so as the agricultural industries use previously untried methods as varied as exotic pesticides, growth hormones, radiation, and genetic engineering on our food supply. Scientists and consumer advocates must be able to express their legitimate concerns. The agricultural disparagement statutes quell just that type of speech. At bottom, any restriction on speech about the quality and safety of our food is dangerous, undemocratic, and unconstitutional."

Even though disparagement laws present a chilling threat to journalists, actual press coverage of new laws has been scant, tending to trivialize the issues with light-hearted commentary about "veggie hate crimes" or humorous wordplay. "Mind how you disparage asparagus or berate broccoli," advised the headline in the Los Angeles Times. "Don't bad-mouth that Brussel sprout. It could cost you," quipped USA Today.

Some US Examples of Corporate Censorship Lawsuits

In Las Vegas, a local doctor was sued over his allegations that a city hospital violated the state's hospital cost containment law.
In Baltimore, members of a local community group faced a $52 million lawsuit after circulating a letter questioning the property-buying practices of a local housing developer.
In West Virginia, an environmental activist faced a $200,000 lawsuit for criticizing a coal mining company'sactivities that were poisoning a local river.
In Pennsylvania, a farmer was sued after testifying to his township supervisors that a low-flying helicopter owned by a local landfill operator caused a stampede that killed several of his cows.
In Washington state, a homeowner found that she couldn't get a mortgage because her real estate company had failed to pay taxes owed on her house. She uncovered hundreds of similar cases, and the company was forced to pay hundreds of thousands of dollars in back taxes. In retaliation, it dragged her through six years of legal harassment before a jury finally found her innocent of slander.
In Rhode Island, a resident of North Kingstown wrote a letter complaining about contamination of the local drinking water from a nearby landfill and spent the next five years defending herself against the landfill owner's attorneys, who charged her with "defamation" and "interference with prospective business contracts."
In South Carolina, an animal rights activist was sued for $4 million after writing a letter to an obscure research journal protesting an Austrian company's plans to use chimpanzees in hepatitis research.
In Missouri, a high school English teacher was hit with a $1 million libel suit after complaining to a weekly newspaper that an incerator burning hospital wastewas a health hazard.
In August 2006 Michigan, the Ecology Center in Ann Arbor, Michigan received a writ from Morton Grove Pharmaceuticals accusing the environment group of "disseminating false, misleading, and libelous statements about the safety profile and effectiveness of Lindane. ...". [1]

Journalist Molly Ivins cites the experience of Consumers Union, publisher of Consumer Reports, which "has already spent $10 million defending itself against a lawsuit filed by Isuzu Motors Ltd. because, eight years earlier, Consumer Reports rated the Isuzu Trooper 'not acceptable' for safety reasons. And the case has not yet reached trial. And that is the real menace of SLAPP suits. It's not that corporations win them, but that they cost critics so much money that the critics are silenced -- and so is everyone else who even thinks about raising some question about a corporate product or practice." [2]

Some International Examples of Corporate Censorship Lawsuits

In August 2005 an application by a New Zealand government-owned coal mining company, Solid Energy, for $NZ379,342 in witness costs and legal expenses against two environmental groups has been dismissed. Forest and Bird and the Buller Conservation Group (BCG) had argued before the Environment Court against approval for a new open-cut coal mine. While the Court approved the project, it dismissed the company's costs claim. Forest and Bird's Regional Conservation Officer, Eugenie Sage, said the company "was trying to punish Forest and Bird and BCG for daring to oppose the mine. This was clearly a strategic law suit against public participation SLAPP." [3]

Books

George Pring and Penelope Canan, SLAPPs: Getting Sued for Speaking Out, Temple University Press, January 1996. ISBN 1-56639-369-8 (Paperback) ISBN 1-56639-368-X (Hardcover).

Websites on SLAPPs

First Amendment Center, The Anti-SLAPP Resource Center (United States)
California Anti-SLAPP project, California Anti-SLAPP Project
Greg Ogle's, The Bush Lawyer's Guide to Avoiding and Surviving Litigation Against Public Participation (Australia)

Other SourceWatch resources

McDonald's, McLibel
Prof. Juan Cole's experience with a threatened SLAPP by MEMRI
SLAPP's in Argentina
SLAPP's in Australia
Gunns 20
Lawfare

External links

John C. Stauber and Sheldon Rampton, "SLAPP Happy: Corporations That Sue to Shut You Up," PR Watch, Volume 4, No. 3, 2nd Quarter 1997.
Molly Ivins, "Free Speech: Going, Going ...: Corporations' efforts to curb free speech through lawsuits are unfortunately succeeding", AlterNet, August 19, 2005.
Curt Guyette, "Of lice and libel: Ann Arbor enviro group sued by drugmaker", Metro Times, August 23, 2006.
William B. Palazzo, "RI SLAPP Statute," blog "RI Supreme Court," undated.

Category: Activism

http://www.sourcewatch.org/index.php?title=SLAPP

Appendix A

SLAPPs: A Statement of the Problem

What is a SLAPP Suit?

The essence of a SLAPP suit is the transformation of a debate over public policy – including such local issues as zoning, environmental preservation, school curriculum, or consumer protection – into a private dispute. A SLAPP suit shifts a political dispute into the courtroom, where the party speaking out on the issue must defend his or her actions. Although SLAPP suits may arise in many different contexts, they share a number of features:

The conduct of the targets that are sued is generally constitutionally protected speech intended to advance a view on an issue of public concern. In most cases, a SLAPP suit is filed in retaliation for public participation in a political dispute. The plaintiff is attempting to intimidate a political opponent and, if possible, prevent further public participation on the issue by the person or organization.

Targets typically are individuals or groups that are advancing social or political interests of some significance and not acting solely for personal profit or commercial advantage.

The filers are individuals or groups who believe their current or future commercial interests may be negatively affected by the targets' actions. Though developers and other commercial entities are the most common SLAPP plaintiffs, they are not the only ones. For example, in Oklahoma, a group supporting tort reform was the subject of a class action libel suit filed by trial lawyers, and in California, county officials filed a $42 million SLAPP against a local citizen because of his opposition to a proposed incinerator project.

The actions tend to be based on one or more of the following torts: defamation (libel or slander); business torts (interference with contract, business relationships or economic advantage, or restraint of trade); misuse of process (abuse of process or malicious prosecution); civil rights violations (due process, takings, or equal protection); or conspiracy to commit one or more of the above acts.

Damages sought are often in the millions of dollars. According to a study by the Denver Political Litigation Project,the average demand was for $9.1 million.See Penelope Canan and George Pring, SLAPPs: Getting Sued for Speaking Out 217 (Philadelphia: Temple University Press, 1996).

Almost all SLAPP suits are eventually dismissed or decided in favor of the defendants. Canan and Pring reported thattargets win dismissals at the very first trial court appearance in about two-thirds of the cases.Id. at 218. By all accounts, the number of SLAPP suits has increased during the past 30 years. Examples of SLAPP suits from around the country reveal the extent of the practice:

— In Rhode Island, a woman filed comments on proposed groundwater rules, raising concerns about possible contamination from a local landfill. The landfill operators sued her for defamation and tortious interference with prospective business contracts, seeking both compensatory and punitive damages.

— In Pennsylvania, a couple wrote letters to their United States Senator, state health officials, and CBS News complaining about conditions at a local nursing home. The state investigated and eventually revoked the nursing home's license. The nursing home then sued the couple, the Senator, and a state health department official.

— In Minnesota, a retired United States Fish and Wildlife Service employee mobilized his neighbors against a proposed condominium development on a small lake. After the rezoning request was rejected, the developer sued him, alleging he had made false statements that damaged the developer's business reputation.

— In Texas, a woman confined to her home by illness spoke out publicly against a nearby landfill. In response, the landfill owners filed a $5 million defamation suit against the woman and her husband.

— In California, a group of small cotton farmers bought newspaper advertising opposing a proposed ballot measure supported by the nation's largest cotton agribusiness. The corporation sued the farmers for libel, requesting $2.5 million in damages.

— In California, a $63 million lawsuit was filed by a developer who claimed that the Beverly Hills League of Women Voters had unlawfully stymied his 10-acre project.

— In Washington, The Nature Conservancy was sued for $2.79 million by seaweed farm developers after it had inventoried potential natural areas in San Juan County, identified lands that should be preserved (including the plaintiffs'), and turned the study over to the county as a recommendation.

http://www.spj.org/antislapp.asp

http://www.countercurrents.org/en-narain101203.htm coke and pepsi in india claim that an NGO has no legit b/c not gov or sci?!

This is a distinct and predictable pattern of corporate response to public concerns. The two cola giants responded to the study on pesticides in their soft drinks in a similar manner. Hours after we, at the Centre for Science and Environment (CSE), released our report, the two companies — PepsiCo and Coca-Cola — convened a press conference to condemn the report and to question the credibility of our testing laboratory.

They followed it up with a public relations blitz. The strategy was simple: denigrate the report, the institution and the individuals who work there. In the process, the findings of the report will also be rubbished.

But what is new, at least for India, is an emerging line of attack to question the “right” of a non-governmental organisation to raise public issues. PepsiCo filed a writ petition in the court, which said that CSE is a “a non-governmental organisation having no legal authority or recognition” and therefore, “the report prepared by a private person does not have any sanctity in law and could not have been binding upon any person, much less the governmental authorities.”

In its writ, Pepsi asked for directions from the court to stop CSE from publishing statements and to withdraw all such materials from circulation and from its website.

This is a tried and tested strategy in the US. Such lawsuits, where the rights of individuals or institutions to bring matters of public interest to the notice of the public are questioned, are common there. Common enough to be given a name: Strategic Lawsuits Against Public Participation, or SLAPP for short.

iowa makes video animal cruelty a crime

ANCHORAGE, Alaska (AP) — Shell Oil Co. has filed a pre-emptive lawsuit against 11 Alaska Native and environmental organizations, asking a federal judge to rule on its spill response plan in the Chukchi (CHUK'-chee) Sea before the organizations sue to challenge it.

Shell Alaska spokesman Curtis Smith says the Houston company is initiating the inevitable court review of the plan.

He says the lawsuit filed Wednesday attempts to avoid legal challenges on the eve of summer drilling operations.

The company filed a second lawsuit in Alaska against Greenpeace only. The measure seeks a restraining order and injunction against organization members seeking to stop them from illegally disrupting Shell operations preceding Arctic drilling.

Greenpeace activists in New Zealand last week boarded a Shell drill ship destined for Alaska water

*AETA puts the general public at risk. Targeting property crimes and other non-violent activity as “terrorism” wastes valuable law enforcement resources. According to *Congressional Quarterly*, the Department of Homeland Security does not list right-wing terrorists on a list of national security threats. Those groups have been responsible for the Oklahoma City bombing, the Olympic Park bombing in Atlanta, violence against doctors, and admittedly creating weapons of mass destruction, but animal rights activists still top the domestic terrorist list.

In 2006, Congress quietly passed the Animal Enterprise Terrorism Act, a sweeping new law that classified many forms of animal rights campaigning as terrorism. Now the law's critics have taken to the courts to try to kill it. In a case filed last week, five activists argue that AETA violates their rights by criminalizing constitutionally protected actions.

AETA, which replaced an earlier, weaker law called the Animal Enterprise Protection Act (AEPA), prohibits anything done "for the purpose of damaging or interfering with the operations of an animal enterprise" or that "causes the loss of any real or personal property." (The earlier version of the law only covered "physical disruption" to operations.) The law also prohibits "economic damage" to an enterprise, which includes loss of profits and pressure put on any investors or other companies that do business with the animal enterprise. Even the definition of "animal enterprise" is so broad that it could be construed as covering any institution that has a cafeteria selling meat or cheese products, argues Rachel Meeropol, an attorney with the Center for Constitutional Rights, which is backing the plaintiffs in the case filed against Attorney General Eric Holder.

"Basically, the law is saying if you cause an animal enterprise to lose profits, then you've committed a terrorist act," Meeropol says. "The whole point of many protests is to cause a business to lose profits, to convince the public that a certain company doesn't deserve to be patronized."

Faced with the possibility of terrorism charges for engaging in many forms of protest, a number of activists have decided to curb their activity.

http://motherjones.com/environment/2011/12/are-animal-rights-activists-terrorists

see also Green is the New Red:An Insider's Account of a Social Movement Under Siege by Will Potter. Animal rights activists are prosecuted as terrorists.

Lawyering up

Posted on April 9, 2011 | 508 Comments

by Judith Curry

Climate scientists, bloggers, and journalists are increasingly providing business for lawyers. What’s going on here?

Here are the current legal issues that I am aware of, any others?

Cucinelli vs Michael Mann

The latest in this saga is described in this article in the Washington Examiner and also this NYT post, where the issue is headed to the Virginia State Supreme Court. The Union of Concerned Scientists has been very active on this.

Early on in this case, I did make a public statement on this, and I have not changed my opinion on this one.

Chris Horner and CEI/ATI vs NASA GISS

Chris Horner began making FOIA requests of NASA GISS in 2007 regarding NASA’s surface temperature record data set, and also about Gavin Schmidt’s blogging activities at realclimate.org. Failure of NASA to supply this information has resulted in the CEI filing a lawsuit against NASA GISS, details can be found in this American Spectator post.

ATI is requesting information regarding James Hansen’s compliance with ethics and disclosure laws. Details of ATI’s FOIA requests can be found on the ATI’s website.

Joe Romm’s take on the realclimate.org angle is here.

UEA vs James Delingpole

Denizen Barry Woods has a current essay at WUWT on this one. The basics are this. UEA made a complaint to the UK Press Complaints Commission regarding James Delingpole, a reporter for the Telegraph:

“In particular, the complainants were concerned that the blog posts described Professor Phil Jones as “disgraced, FOI-breaching, email-deleting, scientific-method abusing”. They explained that Professor Phil Jones had been exonerated of any dishonesty or scientific malpractice by a series of reviews” – Press Complaints Commission

From their ruling:

In relation to the columnist’s description of Professor Jones as “FOI-breaching, email-deleting”, the newspaper had provided extracts from an email from Professor Jones in which he had written “If they ever hear there is a Freedom of Information Act now in the UK, I think I’ll delete the file rather than send to anyone”,and another email in which he had written

“Can you delete any emails you may have had with Keith re AR4?”. – Press Complaints Commission ruling

Barry Woods’ analysis:

How many blog owners or other journalists without the backing of an experienced legal team and the Telegraph would have been able to take this case on?

The threat of, or taking legal action against critics of ‘climate science’ does appear to be on the rise, this is a concern as few bloggers have any means to defend themselves legally. If actions like this are not fought and won, all perhaps it would take is a lawyer’s letter from a complainant with deep pockets (like UEA) for the blog owner to have to make a difficult personal and financial decision. Additionally, these actions may result in a form of self censorship with blogger and journalists not daring to comment.

I was completely unaware that this case was going on until I read about in James Delingpole’s latest blog post and it did make me think what I would have done if a lawyer’s letter found its way to my blog with a threat of legal action. So hopefully now, before ‘climate scientists’ and politicians rush to the courts they will now think more carefully of the potential outcomes. If only because it may backfire on them and that they realise as he won the complaint, others in the media might pay more attention to the reason why he won the complaint.

Michael Mann vs Tim Ball

Michael Mann is suing skeptic Tim Ball for libel, full details at DeSmog Blog. The issue here is Tim Ball suggesting that Mann is somehow guilty of criminal fraud for his part in what has come to be known as “climategate.” The allegedly libelous phrase is this:

Michael Mann, a professor in Penn State’s meteorology department and director of the university’s Earth Systems Science Center, claims that Ball defamed him when he said that Mann “should be in the State Pen, not Penn State,” for his alleged role in the so-called climate gate email tussle.

Mann is seeking punitive damages and wants the article removed from its electronic data base. According to courthousenews, this is not the first time that Ball has been sued by a climate scientist for defamation.

Analysis from Anthony Watts:

Due to the extra attention Dr. Mann has attracted with the lawsuit, the exposure of the phrase is now far and above what it was when originally posted on the Canadian website. I didn’t even know of it until the lawsuit was announced. I’ve had far worse things said about me in this climate debate turned ugly, and the best legal advice I’ve seen given to public figures in the news business is that they generally are not successful when suing for alleged slander/libel, especially for something that is a critical opinion piece with what appears to be a satirical joke line. Criticism and satire in an opinion piece are generally hard to challenge legally in the USA, though it is different in Canada. In Canada, the law is broader. Even so, I don’t think Dr. Mann or his attorney are going to be prepared for the demands of discovery on this one, nor do I think he will prevail in his lawsuit, based on similar failed actions I’ve seen against anchors and reporters in the TV news business when challenged by a public figure.

http://judithcurry.com/2011/04/09/lawyering-up/

FOIA/SLAPP

Arizona election denial group leader uses QAnon-affiliated channel to urge viewers to flood election officials with spurious records requests

Trump Attorney Sues Greenpeace Over Dakota Access Pipeline in $300 Million Racketeering Case

Contents

Characteristics

History

United States

California

Right-Wing Think Tank FOIAs Climate Scientists

Big Ag Money Moves to the Ballot

CMD and Common Cause Prevail in Open Records Lawsuit Against ALEC Legislators in Wisconsin

Mountain Injustice

For Pennsylvania’s doctors, a gag order on fracking chemicals

Corporate censors

SLAPPed Into Submission

Power to the Plaintiffs

Profits Before People

Truth in the Eye of the Beholder

Some US Examples of Corporate Censorship Lawsuits

Some International Examples of Corporate Censorship Lawsuits

Books

Websites on SLAPPs

Other SourceWatch resources

External links

Lawyering up

Attachments