Thursday 15 November 2018

On February 10, 2016, Waterkeepers Chesapeake Executive Director Betsy Nicholas testified before the Maryland General Assembly's House Judiciary Committee in support of anti-SLAPP legislation. A SLAPP (Strategic Lawsuit Against Public Participation) lawsuit is a specific kind of legal proceeding that is generally filed to intimidate or silence critics, with little intention to be won on the merits.

For whistleblowers or others who might be working in the public interest, such lawsuits come with burdensome legal fees, something that House Bill 263 could possibly remedy. The bill is being sponsored by Delegate Samuel Rosenberg of Baltimore.

In a story for the Daily Record, legal affairs writer Steve Lash said that the bill would remove the requirement that "groups seeking to dismiss such litigation prove they had been filed 'in bad faith' and were 'intended to inhibit' their free-expression rights." 

Joining the Waterkeepers Chesapeake coalition were the American Civil Liberties Union (ACLU), the Maryland-Delaware-D.C. Press Association (MDDA), and the Maryland Coalition Against Sexual Assault (MCASA).

Nicholas said that the bill will enable environmental groups to speak out against polluters without fear of costly, meritless litigation designed only to keep them quiet. 

Below is Nicholas' submitted tesimony to the committee: 

WATERKEEPERS® Chesapeake is a coalition of nineteen independent programs working to make the waters of the Chesapeake and Coastal Bays swimmable and fishable. Waterkeepers Chesapeake amplifies the voices of each Waterkeeper and mobilizes these organizations to fight pollution and champion clean water. The members of Waterkeepers Chesapeake work locally, using grassroots action and advocacy to protect their communities and their waters. They work regionally to share resources and leverage individual organization strengths to expand each Waterkeeper’s capacity for on the water, citizen-based enforcement of environmental laws in the Chesapeake region.

Waterkeepers Chesapeake is pleased to support House Bill 263, which would strengthen the protections of Maryland’s anti-SLAPP law, by clarifying the definition of SLAPP suit and dismissal proceedings. It also includes important fee-shifting provisions that protect defendants who prevail on an anti-SLAPP motion from having to pay often-staggering legal fees, fees that impose a significant burden on defendants who were forced to defend themselves against meritless lawsuits. We feel this legislation respects and maintains the difficult balance of protecting citizens’ free speech while avoiding overly punitive measures so as not to deter the filing of valid lawsuits and ensure every deserving party gets their day in court.

Citizens play an important role in ensuring compliance with the nation's environmental laws. Sixteen of the nation's principal federal environmental laws invite citizens to sue as "private attorneys general" to force compliance, or to force agencies to perform mandatory duties. These citizen suit provisions allow “any person” to bring a civil action for violation of these environmental laws, with the citizen (or citizen group) stepping into the shoes of the government as the enforcing body.  Citizen suit authority reflects "a deliberate choice by Congress to widen citizen access to the courts, as a supplemental and effective assurance that [environmental laws] would be implemented and enforced." Natural Resources Defense Council v.Yain, 510 E2d 692,700 (D.C. Cir.1974).

Some of the most significant environmental clean ups in this nation are credited to citizens and citizens groups who initially brought those actions. From halting power plant toxic emissions, to stopping toxic acid mine draining, to preventing coal ash from polluting our waterways, to requiring cleanup of radioactive waste, and in many cities and counties, requiring upgrading of failing sewer systems that were contaminating waters and threatening public health – all of these actions resulted from citizen suit enforcement.  Citizen suits are a critical complement to government enforcement, yet these actions are time consuming and expensive for the individual or organization to take on.  Additionally, citizens do not enjoy the sovereign immunity that government does, leaving them vulnerable to lawsuits, such as SLAPPs. 

SLAPPs are Strategic Lawsuits Against Public Participation.These damaging suits chill free speech and healthy debate by targeting those who communicate with their government or speak out on issues of public interest. SLAPPs are used to silence and harass critics by forcing them to spend money to defend baseless lawsuits. SLAPP filers don’t go to court to seek justice, rather the SLAPPs are intended to intimidate those who disagree with them or their activities by draining the target’s financial resources. SLAPPs are effective because even a meritless lawsuit can take years and many thousands of dollars to defend. 

Environmental organizations work off of citizen donations and tight budgets.  The burden of the costs of litigation to bring a citizen suit are often too expensive for many to bear and so numerous civil and criminal violations of environmental laws go unchallenged. SLAPP suits add an additional threat to these organizations and individuals who might otherwise bring an action to help enforce environmental laws and protect public health and their communities. 

Several states have anti-SLAPP suit statutes more stringent than the ones currently in Maryland. The laws need to be strengthened in order to protect citizens from intimidation and harassment, when availing themselves of their First Amendment rights. 

We urge you to give a favorable report on HB-263 that is much-needed to spare civic minded citizens the expense and inconvenience of defending frivolous lawsuits that intentionally attack our rights.

On behalf of the James River Association, Southern Environmental Law Center has filed a notice with the Virginia Department of Environmental Quality (DEQ) and Dominion Power that it will appeal the permit issued by DEQ to Dominion last month to allow the discharge of over 350 million gallons of coal ash wastewater from the Bremo Power Station into the James River.

“The James River Association is committed to ensuring that the James River is fully protected from the harmful effects of coal ash. The James River near Bremo Power Station is a biologically healthy and diverse section of the river with important resources that must be protected,” said Bill Street, CEO at James River Association. “We are deeply disappointed that the permit approved by the State Water Control Board fell short of fully protecting the James River when the technology to meet stronger water quality protections is readily available and affordable. We are filing notice of an appeal to ensure that ‘America's Founding River’ receives the same level of protection as any other waters.”

READ MORE JRA’s statement, February 10, 2016

READ MORE SELC’s statement, February 10, 2016

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