U.S. Current Trend: Environmental Nonprofits Facing Lawfare Tactics
Environmental groups are known for their fight against climate change, but the battle over their activism has moved indoors to legislatures and courtrooms. Corporations and lawmakers are deploying new types of “lawfare” to weaponize the law to undermine environmental organizations and their message. These tactics should be concerning for all nonprofits engaged in advocacy on politically contested topics.
NEW TACTICS TO WEAPONIZE THE LAW AND UNDERMINE ACTIVISM
Consider, for example, so-called critical infrastructure bills. These bills might sound technical and innocuous, but they are used to target demonstrations against oil and gas pipelines across the country. They have been enacted in eight states since 2017 and have been proposed in 10 more. These bills not only impose severe criminal penalties for protesters who trespass on or impede the construction of broadly defined “critical infrastructure,” but they also often create liability for nonprofits that organize or support protesters.
For example, under Indiana’s law, an organization found to have “conspired” in an activist’s trespass is subject to a fine of up to $100,000. A similar fine awaits a nonprofit “conspiring” with an individual to impede the construction of a pipeline under a new North Dakota law.
South Dakota has perhaps the most draconian such anti-protest law. Enacted in March 2019, Gov. Kristi Noem claimed the state’s “riot booster” bill allows the government to go after organizations and funders connected to disruptive protests, specifically naming billionaire progressive supporter George Soros. Among other provisions, the law creates extensive civil liability for anyone who “directs, advises, encourages, or solicits” others to participate in a disruptive protest.
This broad language raises the question of whether an organization could be held liable for merely helping advertise a rally where some protesters cause property damage. This would expose the organization to potentially millions of dollars of liability. The ACLU, on behalf of the Sierra Club and other environmental groups, successfully blocked the South Dakota law in September 2019 on the grounds it unconstitutionally chilled speech.
Another tactic used against environmental groups are SLAPPs, or Strategic Lawsuits Against Public Participation. SLAPPs are baseless lawsuits designed to harass or intimidate critics. An example would be a developer bringing a defamation suit against a nonprofit that publicly criticized the corporation, not because the developer believed the lawsuit would succeed, but to deplete the nonprofit’s resources and chill its advocacy.
As a new tactic, corporations are now suing environmental groups under the Racketeer Influence and Corrupt Organizations (RICO) Act, casting advocacy as a form of “racketeering.” RICO suits have allowed companies to claim exceptionally high damages.
For example, in August 2017, Energy Transfer Partners (ETP), a natural gas company behind the Dakota Access Pipeline, used RICO to bring a suit in federal court for $900 million in damages against Greenpeace and Earth First. The ETP complaint claimed that the goal of these groups’ environmental campaign against the Dakota Access pipeline was to trick donors into giving the organizations’ money by creating a flood of publicity. The suit asserted that the environmental groups engaged in acts of “terrorism” and damaged ETP’s business and financial relationships.
A federal judge dismissed the suit this past February. However, just a week later, ETP filed a suit on similar grounds in state court. Greenpeace claims this suit is also designed to tie them up in court and undermine their activism.
If SLAPPs and overreaching critical infrastructure bills were not enough, environmental groups are now facing the possibility of being labeled a “foreign agent.” Beginning in the summer of 2018, the then Republican-led House Natural Resources Committee launched an investigation into whether four prominent environmental nonprofits needed to register under the Foreign Agents Registration Act (FARA). Two organizations, the Natural Resources Defense Council (NRDC) and the World Resources Institute, were accused of needing to register under FARA for having ties with Chinese officials as part of their work and supposedly being more critical of U.S. than Chinese environmental policy. Meanwhile, the Committee claimed that the Center for Biological Diversity and Earth Justice might need to register for coordinating their advocacy campaign against moving the U.S. military base in Okinawa with Japanese civil society and the Okinawa prefecture.
No credible evidence was presented that these groups were actually acting in the U.S. on the behalf of a foreign hand. However, the broad and vague wording of FARA, along with its stigmatizing and burdensome registration requirements, makes it amendable to politicized abuse.
The investigation was dropped when Democrats took control of the House of Representatives in 2019. However, the U.S. Department of Justice is ramping up enforcement of FARA due to concerns regarding foreign influence in U.S. politics. And, some media commentators continue to call for the investigation of environmental groups. As such, the uncertain enforcement environment around FARA has led groups to debate whether they may need to register or change their activities.
These legal tactics should not just concern environmental groups as they can and have been used against a range of nonprofits and activists. In the McCarthy era, the Justice Department used FARA to shut down an antiwar organization and prosecute W.E.B. Du Bois. SLAPPs have been brought against myriad nonprofits and journalists. And a new wave of anti-protest laws that restrict the freedom of assembly target not just environmental groups, but also the Black Lives Matter movement, student protesters, and others.
A more united response by nonprofits is starting to emerge. A broad coalition of organizations, including many humanitarian groups, are pushing Congress to better target FARA to protect legitimate nonprofit activity. A recently-formed coalition, Protect the Protest, has called for national anti-SLAPP legislation. And a broad set of groups are organizing to protect peaceful assembly, including environmental protests.
Lawfare is not limited to environmental groups. It is a malleable strategy, allowing corporations and others to weaponize the law to target nonprofits they dislike. Recognizing this threat, a growing number of nonprofits are coming together to defend nonprofit advocacy during this era of political polarization.
This current trend is modified from an article that was originally published in the Sept-Oct. 2019 edition of Exempt Magazine under the title “Environmental Nonprofits: Laws Now Target the Right to Protest” authored by Nick Robinson, Legal Advisor, ICNL.