Environment

All The Ways Oil Companies Mess With Environmental Groups

After Enbridge tried to seize the assets of a Vancouver-based anti-pipeline organization this week, it’s worth revisiting Big Oil’s legal trick handbook.

by Jackson Weaver
Oct 23 2017, 6:43pm

Photo by Jackie Dives. 

At five to ten last Tuesday morning, Karen Mahon opened the door to her downtown Vancouver office to two sheriffs. They came in with a "writ of seizure and sale" and—before they went to get a truck to put it all into—started taking pictures of absolutely everything in the office.

"To make sure we didn't run out with any of our stuff after they left," Karen explained.

Mahon is the Canadian director of Stand.earth, an environmental "markets campaigning" group that was founded to "stop the logging of rare thousand-year-old forests on the coast of British Columbia" but has since graduated to fighting corporations of all sizes on climate and forest issues. One of those issues was to take on Canada's National Energy Board (NEB) over their approval of Ontario's Line 9 pipeline, suing them for the lack of consultations—owned by fossil fuel delivery company Enbridge—back in 2014. They ended up losing that case (Stand.earth was named Forest Ethics at the time), and, in what Mahon called a legal technicality, were ordered to pay Enbridge's legal fees.

"That was 2014. Since then, even the Trudeau government has said that the NEB was wrong, and that they were willfully excluding the public from these decisions of huge public impact," Mahon told VICE. In her opinion, Enbridge issuing the writ to seize their assets now—three years after that ruling and six months after a Trudeau-sponsored panel found that the NEB "has fundamentally lost the confidence of many Canadians" and recommended replacing it—is just part of a trend of corporations using the courts to shut down environmental and public interest groups.

Though Enbridge backtracked almost immediately, cancelling the seizure in a pair of tweets three hours later, these sorts of dirty legal tactics still go on constantly, and are eerily similar to what's called a SLAPP—strategic lawsuit against public participation. A lawsuit is a SLAPP when big companies leverage their huge reserves of cash to essentially wage wars of financial attrition against individuals and NGOs. A corporation with hundreds of millions of dollars at its disposal can afford to hire lawyers and mount a lawsuit they know they won't win, but the people they target often can't. Meanwhile, when you're staring down the barrel of a $300 million dollar lawsuit, even if it is ridiculous or unbelievable, it can be difficult to keep fighting.

These types of lawsuits can come in a number of different forms, so we asked a couple of lawyers (and a doctor!) to walk us through them.

Documents presented on behalf of Enbridge to seize the assets of Stand.earth.

They can say you're spreading lies about them

Eugene Kung of West Coast Environmental Law started his outline of SLAPP suits with "the classic libel or defamation style"—perhaps the simplest, most widely used, and well-known way for big industry to shut down dissenters or public opposition.

"They're used as a tactic by large oil companies and infrastructure companies to really go after and intimidate people who are legitimately expressing their views and their concerns about various projects," he told VICE. A defamation suit is a SLAPP suit when the goal is to shut up dissenters with the threat of legal action, instead of legitimately protecting oneself from slander and lies, but since motivations aren't always one hundred percent obvious, a group with teams of lawyers can sneak these suits into the courts without actually expecting to win, in order to financially cripple their targets. (Some jurisdictions have anti-SLAPP legislation but BC is not one of them.)

"It's really this disturbing trend of these big corporations using their disproportionate amount of resources to silence dissent and opposition, and intimidate," Kung said, but, of course, that's not the only way you can litigate away opposition.

They can say you're messing up their business

Lynne Quarmby is a doctor, professor, chair of the department of molecular biology and biochemistry at Simon Fraser University, and very nearly a convicted criminal for her involvement in the Burnaby Mountain protest against Kinder Morgan back in 2014. As one of the organizers of the protest, Dr. Quarmby had gathered a group of people to protest the expansion of an oil sands pipeline to run through the mountain, as well as test whether they could run a tunnel underneath it. The NEB, a frequent player in these cases, ruled that the city of Burnaby couldn't do anything to stop them, despite the huge public outcry, so Quarmby's group occupied the site and, in her words, kept Kinder Morgan from being able to do their work.

While up there, Kinder Morgan filed an injunction to stop protesters from entering the area, which brought a line of police to form a barricade blocking their entry. In response, Quarmby made a decision; she was going to get arrested.

In a speech she made immediately before calmly turning around to illegally cross the barricade and be put in handcuffs, Quarmby said:

"At the end of the day when you're dealing with unjust law and abusive power, the last resource we have is civil disobedience. It's done in full respect of the rule of law. But it's also done with serious responsibility with being a citizen in this country."

Which is a pretty rousing speech and fairly badass thing to say before being arrested—which she then, unsurprisingly, was. It's what happened in the civil courts, though that did take her off-guard, because Kinder Morgan wasn't OK with just the arrest. She, along with four of the other more prominent people protesting alongside her, were sued by Kinder Morgan for millions of dollars.

She went on to describe what it was like to risk losing her house, her retirement savings, and her livelihood over the case ("I would say 'terrifying' is a good word") before it was ultimately dropped by Kinder Morgan as they faced huge public pressure. Kinder Morgan alleged that Quarmby's group had trespassed while protesting, and cost them millions of dollars in delays which they were trying to recoup through the suit.

Quarmby countered that the land was a public park, and the lawsuit was nothing but an intimidation tactic. In support of that interpretation is the fact that, as three of the defendants prepared to go to trial over the lawsuit—Dr. Quarmby and one other accepted a discontinuance offered to all five—Kinder Morgan dropped all charges. Alan Dutton, one of the three that was prepared to go to court, said in an interview with the Canadian Civil Liberties Association that the reason they did this was because they never intended to go to court in the first place, they just wanted to send a message.

"It could be argued that Kinder Morgan's goal had been achieved, at least in part," he said. "Whether unintended or intended, the effect of the lawsuit against all five protestors was to intimidate, silence, disrupt further protests and to breakup groups through threat of lawsuit and privatizing a matter of public importance within the judicial system."

They can say you're stealing their content

This sort of tactic is seen a lot more often in the tech sphere; the gaming literate among us will remember the infamous Sony v George Hotz lawsuit, where, after Hotz figured out a way to jailbreak the Playstation 3, Sony levied a lawsuit against him, as well as obtained the legal right to confiscate his hard drives for inspection, along with his Paypal, Twitter, and Youtube accounts. In Wired Magazine's report, it was suggested that Sony ended up dropping the case since, if they pursued it in court, all they could gain would be an unspecified monetary award. If they lost, though, the nature of the Digital Millennium Copyright Act (DMCA) under which Hotz was being charged, would receive unwanted publicity. Hotz, who was also famous for jailbreaking phones, couldn't be tried for that, since the DMCA allowed the practice for users to run any app they want on their phones. If the difference in policy when it game to gaming policies came to light, Wired reported, that could "shed light on the inequities of the DMCA and spark calls for change."

For an example a little closer to home for Canadian listeners, earlier this year, documentarian and animal rights activist Gary Charbonneau lodged an appeal over a lower court's finding that he used copyrighted material in his movie critiquing the Vancouver Aquarium. Though they alleged that the damages warranted legal action, Camille Labchuk, animal rights lawyer and executive director of Animal Justice, told VICE that was in no way the case. First off, she and the Animal Justice team defending Charbonneau didn't agree that the animals he filmed in the aquarium were even copyrighted. Secondly, she took issue with the way the Vancouver Aquarium interpreted copyright law, and how they were using it to silence someone that disagreed with them, instead of protecting their intellectual property.

"Even assuming it was copyrighted," Labchuk told VICE, "what is their damage? There's been no damage to them using this material in the ways that they want."

Instead, this seemed to her as just a tool to fight undercover documentaries against factory farms, zoos, aquariums, and the pet trade, and that—if the aquarium won—other organizations would use this precedent to follow their lead. In the end, the Vancouver Aquarium's injunction only caused 15 individual parts be removed from Charbonneau's film instead of quashing the entire production.

However, neither this case, nor Dr. Quarmby's, can be officially designated as SLAPP suits since British Columbia has no anti-SLAPP legislation. Labchuk—and one other lawyer we'll get to—still do believe this constitutes egregious abuse of the law though, for the effect it brings about: the chilling of freedom of speech .

They can say you're an old timey mob

This may be the weirdest, singular, and most brazen form of SLAPP suits, and most difficult to explain. Suffice it to say, just a day before Mahon's office was raided on account of Enbridge, a case put forward by the California logging company Resolute against Stand.earth and Greenpeace was dismissed as fraudulent. The lawsuit was for $300 million dollars, and filed under the RICO act, or Racketeer Influenced and Corrupt Organization act.

Resolute charged Greenpeace with racketeering. You know, that thing Al Capone did.

The judge in the case saw it the same way, and threw out the charge as an attempt to muzzle free speech. Which is really lucky too, because if Greenpeace and Stand.earth had lost that case, they wouldn't have been the only ones to suffer, because of this last tactic.

They can try a bunch of things and see what sticks

SLAPP suits aren't about the suits themselves, they aren't about the charges used, and they aren't about a corporation being awarded their monetary damages. They're not about winning in trial, they're not even about going to trial, Neil Chantler, trial attorney with Chantler & Company, told VICE. They work no matter what you ground them on, because they're not about winning individual cases, they're about discouraging people from acting in a way that necessitates corporations bringing any further cases.

"One widely reported SLAPP suit brought by an oil company, has repercussions throughout the environmental movement, throughout perhaps even wider movements," he told VICE. "That's the real impact. I'm not suggesting a SLAPP suit is brought every day in BC Supreme Court, but the ones that are, have tremendous effect."

Because the purpose of a SLAPP suit is to scare the crap out of you, and make you decide to never, ever speak out against big business or corporations, they can be extremely effective. Seeing these lawsuits for millions of dollars turns people right off from saying anything publicly that could ruin them financially, and Chantler says he has people in his office every day worried about that, about what they can say without having the same experience as Dr. Quarmby, as Gary Charbonneau, as Karen Mahon.

That's the most effective tactic, and the one they're really using all the time.

Follow Jackson Weaver on Twitter.