Lack of Anti-SLAPP Legislation Prevents Environmental Justice in Alabama by Gonzalo E. Rodriguez

Lack of Anti-SLAPP Legislation Prevents Environmental Justice in Alabama

by Gonzalo E. Rodriguez

 

On December 22, 2008, the Kingston Fossil Plant–a coal-burning power plant operated by the Tennessee Valley Authority–became the site of what experts coined “the largest environmental disaster of its kind.”[1] The containment dike of a waste landfill collapsed, releasing 5.4 million cubic yards of coal ash–a coal-burning byproduct containing carcinogenic toxics such as mercury, cadmium, and arsenic, which can pollute both water and air.[2] Nearby towns were forced to evacuate, the delivery of electricity and gas was disrupted, and 300 acres of the Watts Bar Reservoir were covered with toxic sludge.[3]

 

In 2010, the Environmental Protection Agency, tasked with overseeing the coal ash cleanup efforts, identified the Arrowhead Landfill as the ideal disposal site for the toxic sludge.[4] Approximately three million cubic yards of coal ash were to be transported 350 miles from Kingston, TN, a predominantly white town, to Uniontown, AL, a poor and over 91 percent black town in the Black Belt.[5] Concerned for their well-being and with the intent to oppose the decision to turn their town into a toxic dumpsite, several Uniontown residents formed Black Belt Citizens Fighting for Health and Justice.[6]

 

On April 6, 2016, Green Group Holdings, LLC, and Howling Coyote, LLC, owners and operators of the Arrowhead Landfill, filed a complaint before the District Court of the Southern District of Alabama against Black Belt Citizens and its members.[7] The complaint sought $30 million in damages for libel and slander, alleging that certain posts published in Black Belt Citizens’ Facebook page were false and defamatory.[8] This lawsuit was filed as a result of Black Belt Citizens’ refusal to enter into a proposed settlement offered by Green Group.[9] The proposed settlement stipulated that Green Group would not bring legal action against the Uniontown residents in exchange for access to their electronic devices and access to the group’s social media pages.[10] The proposed settlement would have also required Black Belt Citizens to disclose information about their membership, release all communication with all other environmental groups, and the withdrawal of a pending Title VI claim filed in connection to the landfill permit application.[11]

 

These types of legal actions have become so commonplace as to earn their own catchy acronym: SLAPPs–Strategic Lawsuits Against Public Participation. The purpose of a SLAPP is simple: to “deny vocal citizens their constitutional right to petition the government.”[12] While many states have passed anti-SLAPP statutes to prevent this sort of coercion, Alabama remains silent.[13] This silence not only jeopardizes the Constitutional speech protections of Uniontown residents, but potentially the very health and well-being of every Alabamian.

 

The Anatomy of a SLAPP

 

SLAPPs are frivolous lawsuits often filed by large organizations with deep pockets in order to silence citizen groups whose political activism threatens the organization’s business interests.[14] Typically, SLAPPs involve legal claims such as libel or slander, conspiracy, or a tort action for economic interference.[15] The ultimate goal of a SLAPP is not to seek judicial remedy, but rather to send a message to activists: “that there is a ‘price’ to pay for speaking out politically.”[16] As George Pring–one of the scholars who coined the term–said, the price paid by SLAPP defendants is “a multimillion-dollar lawsuit and the expenses, lost resources, and emotional stress such litigation brings.”[17] This price is not only paid by the immediate defendants to a SLAPP but also by the public at large, as the looming threat of legal action is intended to have a chilling-effect on public participation.[18]

 

Block and Counter: Anti-SLAPP and SLAPPback Statutes

 

A majority of states have enacted statutes aimed at protecting private individuals and citizen groups from SLAPPs. Recognizing that the inherent danger of SLAPPs lays in their ability to force defendants into costly litigation, Anti-SLAPP statutes allow defendants to file a special motion to strike the complaint.[19] Once the defendant files the special motion to strike, all discovery is suspended–absent a showing of good cause by the plaintiff–until the court rules on the motion.[20] Further, most Anti-SLAPP statutes provide for the recovery of attorney fees and costs to a prevailing SLAPP defendant.[21]

 

California, often regarded as having the strongest Anti-SLAPP protections, also provides defendants with a proverbial sword. Intended to deter SLAPP plaintiffs from bringing such actions in the future, a prevailing SLAPP defendant may file a SLAPPback action for punitive damages.[22] SLAPPback awards have been anything but nominal. In the case of a hospital worker who was SLAPPed for criticizing the incinerator operations of an infectious-waste disposal company, the jury awarded punitive damages of $86.5 million.[23]

 

Insufficient Measures: The Alabama Litigation Accountability Act (“ALAA”)

 

In 1987, the Alabama legislature passed the ALAA, empowering courts to award attorney’s fees and costs against an attorney or party who brings an action “without substantial justification.”[24] The ALAA, however, fails to protect private individuals and citizen groups from SLAPPs for several reasons. First, a SLAPP defendant may not receive ALAA relief until the lawsuit is adjudicated.[25] This leaves SLAPP defendants who do not possess sufficient resources to mount a legal defense no option but to hope for benevolent pro-bono counsel to save the day. Second, an award under the ALAA depends on an affirmative finding by the court that the plaintiff’s claim was asserted “without substantial justification.”[26] This requirement focuses on the plaintiff’s motive, instead on protecting the SLAPP defendant’s First Amendment rights.[27] Lastly, the mere threat of attorneys’ fees may ultimately be a reasonable business cost for the SLAPP plaintiff to bear in exchange for discouraging future public participation.

 

Environmental Injustice: Maintaining the Status Quo

 

In Uniontown, a town with barely 2,500 residents and a median income per capita of $8,000,[28] a $30M lawsuit stands as a reminder of the State’s failure to protect the rights of the most vulnerable. Residents of frontline communities such as Uniontown may not have the financial wherewithal nor the political power to influence the State legislature. Our legal and regulatory framework provides these individuals certain avenues through which they may demand their right to breathe clean air, drink water free of deadly contaminants, and raise their children in a safe environment. Yet, without protection from SLAPPs, the voices of frontline communities are silenced. Anti-SLAPP protections stand for the proposition that private individuals and citizen groups should be protected from harassment and intimidation when voicing their concerns in regards to matters of public interest. These protections are particularly crucial to frontline, low-income communities of color, who are often the unwilling hosts of toxic waste dumps and “bear the most severe consequences of environmental degradation and pollution.”[29]

 

“We are tired of being taken advantage of in this community. The living around here can’t rest because of the toxic material from the coal ash leaking into creeks and contaminating the environment, and the deceased can’t rest because of the desecration of their resting place.”[30] Even though Green Group claims this statement to be false and defamatory,[31] the everyday impacts that the coal ash landfill has had on Uniontown residents are undeniable. As Esther Calhoun, a life-long resident of Uniontown and defendant in the lawsuit said: “It used to be that living in the country you could sit on the front porch, hang your clothes out to dry, [and] barbecue. All that has changed since the landfill.”[32]

[1] Shaila Dewan, Tennessee Ash Flood Larger Than Initial Estimate, N.Y. Times (Dec. 26, 2009), http://www.nytimes.com/2008/12/27/us/27sludge.html.

[2] Coal Ash Basics, EPA, https://www.epa.gov/coalash/coal-ash-basics (last visited Oct. 4, 2016).

[3] Sites in Reuse – TVA Kingston Removal Site, EPA, https://semspub.epa.gov/work/04/11015034.pdf (last visited Oct 4, 2016).

[4] Frequently Asked Questions Regarding the Disposal of Coal Ash at the Perry County Arrowhead Landfill – Union Town, Alabama, EPA, https://archive.epa.gov/pesticides/region4/kingston/web/pdf/tvaperrycountyfaq.pdf (last visited Oct. 4, 2016).

[5] Matthew Teague, Opponents of Huge Alabama Landfill Fight Company’s $30m Defamation Suit, The Guardian (June 2, 2016), https://www.theguardian.com/us-news/2016/jun/02/uniontown-alabama-landfill-defamation-suit-green-group.

[6] See Our History, Black Belt Citizens, http://blackbeltcitizens.wixsite.com/blackbeltcitizens/about_us (last visited Oct. 4, 2016).

[7]  Complaint, Green Group Holdings, LLC. v. Schaeffer, No. 1:16-cv-00145 (S.D. Ala. Apr. 6, 2016).

[8] See Id. at 11-14.

[9] Id.

[10] Green Group Holdings v. Schaeffer – Proposed Settlement Previously Offered to Defendants at 3, ACLU, https://www.aclu.org/other/green-group-holdings-v-schaeffer-proposed-settlement-previously-offered-defendants (last visited Oct. 4, 2016).

[11] Id. at 3-4.

[12] Victor J. Cosentino, Strategic Lawsuits Against Public Participation: An Analysis of the Solutions, 27 Cal. W. L. Rev. 399, 400 (1991).

[13] See SLAPP Stick: Fighting Frivolous Lawsuits Against Journalists, The Reporters Comm. for Freedom of the Press 1, 4 (2011), http://www.rcfp.org/rcfp/orders/docs/ANTISLAPP.pdf.

[14] See Consentino, supra note 12 at 402.

[15] Id. at 401.

[16] George W. Pring, SLAPPs: Strategic Lawsuits Against Public Participation, 7 Pace Envtl. L. Rev. 3, 6 (1989).

[17] Id.

[18] Consentino, supra note 12 at 404-05.

[19] The defendant may make a special motion to strike the complaint, unless the court determines that the plaintiff has established a probability that the claim will prevail. Additionally, Anti-SLAPP statutes set time limits for the court to rule on the special motion to strike. See, e.g., LSA-C.C.P. Art. 971(A)(1); Cal. Civ. Proc. Code § 425.16(g); Tex. Civ. Prac. & Rem. Code Ann. §§ 27.003, 005 (referring to the motion as a “motion to dismiss”).

[20] See, e.g., LSA-C.C.P. Art. 971(D); Cal. Civ. Proc. Code § 425.16(b)(1); Tex. Civ. Prac. & Rem. Code Ann. § 27.003(c).

[21] See, e.g., LSA-C.C.P. Art. 971(B); Cal. Civ. Proc. Code § 425.16(c)(1); Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a)(1).

[22] Cal. Civ. Proc. Code § 425.18.

[23] George W. Pring et al., “Strategic Lawsuits Against Public Participation (“SLAPPs”): An Introduction for Bench, Bar, and Bystanders, 12 Bridgeport L. Rev. 937, 955 (1992).

[24] Ala. Code § 12-19-272(a).

[25] See Id. (stating that “the court shall award, as part of its judgment and in addition to any other costs assessed, reasonable attorneys’ fees and costs[.]”) (emphasis added).

[26] Ala. Code § 12-19-272(a).

[27] See Carol Rice Andrews, Motive Restrictions on Court Access: A First Amendment Challenge, 61 Ohio St. L. J. 665,722 (2000).

[28] Matthew Teague, Opponents of Huge Alabama Landfill Fight Company’s $30m Defamation Suit, The Guardian (June 2, 2016), https://www.theguardian.com/us-news/2016/jun/02/uniontown-alabama-landfill-defamation-suit-green-group.

[29] Rachel Massey, Environmental Justice: Income, Race, and Health, Global Dev. and Env’t Inst. – Tufts Univ. page number? http://www.ase.tufts.edu/gdae/education_materials/modules/Environmental_Justice.pdf (last visited: Oct. 5, 2016).

[30] Id. (statement by Benjamin Eaton, defendant in the lawsuit).

[31] Complaint, Green Group Holdings, LLC. v. Schaeffer, No. 1:16-cv-00145 at 8 (S.D. Ala. Apr. 6, 2016).

[32] Teague, supra note 28.

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