SLAPPs: Occurrence & State Responses

Jacob Paul WalikainenSS5300

Professor Barry Solomon12/13/2011

Abstract:

The Strategic Lawsuit Against Public Participation (SLAPP) is a counterclaim

that results from citizen reporting, monitoring, or voicing to a government body,

official, or the electorate on an issue of public interest or concern. SLAPPs

inhibit public participation in environmental assessment. This paper reviews

available literature on SLAPPs, drawing on existing case studies to investigate

how SLAPPs affect environmental monitoring and public participation in

environmental policy. Also, state responses to SLAPP are presented with three

charts on state Anti-SLAPP legislation. Most SLAPPs generate similar results- a

strategic victory for entities rather than a legal one by transforming the dispute.

The influences of SLAPPs on public participation include inhibition, intimidation,

and resource draining impacts. Findings suggest a need for every state and a

federal adoption of Anti-SLAPPs, SLAPP opposing legislation, in order to

support citizen participation in risk assessment and environmental outcomes.

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Introduction

The Strategic Lawsuit Against Public Participation (SLAPP) is a counterclaim or

civil complaint filed against groups or individuals. These counterclaims are carried out

due to the defendants’ communications to a government body, official, or the electorate

on an issue of public interest or concern (Pring & Canan, 1989; Hurley & Shogren, 1997;

Osborn & Thaler, 2008). The defendants of SLAPPs are Non Government Organization

(NGO), and other citizen groups, which are often referred to as the target of a multi-

million dollar federal or state suit. Different state’s statutes define SLAPP in a variety of

ways, yet they generate similar results, a strategic victory for polluting entities rather than

a legal one by transforming the dispute. The SLAPP legal proceedings inhibit citizen

participation to assess environmental risk and to pursue public advocacy. The need for

every state and a federal adoption of Anti-SLAPPs is supported by investigations of

SLAPP case studies, state charts on Anti-SLAPP legislation, and inhibition of citizen

participation in risk dialogues.

The increasing number of SLAPPs, since the environment movement of the

1960s, uses litigation to derail political claims of pollution or proposed development

projects. These litigation methods move the public debate from the political arena to the

judicial arena, which often favors those opposed to efforts of influencing governance

(Canan, 1989). SLAPPs violate the First Amendment’s efforts safeguarding political

speech, and they restrict the public’s and citizen groups’ assessment of environmental

risks.

Citizen risk assessment is not only a public right, it is essential for pollution

monitoring within the Clean Water Act (CWA), Clean Air Act (CAA), and other

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environmental laws (Stetson, 1995). Data from the Clean Air Act shows that states with

Anti-SLAPPs have more government site inspections, impose more penalties, and locate

significantly more pollution violations (Norman, 2010). Public monitoring is vital to

support efforts of governmental pollution control agencies, especially on private lands

and areas with large regional impacts. Local pollution control agencies and

environmental policy makers rely on public reporting.

The majority of states have identified the problems of SLAPPs, and have passed

Anti-SLAPP statutes. Yet no federal Anti-SLAPP legislation has been approved, and

over 20 states lack Anti-SLAPP statutes (www.anti-slapp.org). Federal and additional

state legislation is required for dialogues of risk assessment and for democratic

environmental policy. SLAPPs dissolve trust in the democratic process. A sense of trust

is vital for building a dialogue of environment risk (Bell, 2011). Protection of public

monitoring and involvement is vital for reducing environmental damage and determining

risk to natural resources. The federal government and all states must enact Anti-SLAPP

legislation to provide environmental protection and effective environmental policy. In

this paper, SLAPP occurrences and state responses are examined.

The purpose of this paper is to investigate available literature on SLAPPs, while

using case studies and State Anti-SLAPP statutes to explain their occurrence/evolution

and impacts/consequences on environmental monitoring and public participation. This

investigation encourages Federal and State Anti-SLAPP legislation. The following

section supports this by evidence gathered from a multidisciplinary investigation of

available literature of SLAPP. This section is followed by a section on State Anti-SLAPP

legislation is compared with three developed charts, which reveal the need for additional

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Anti-SLAPPs. In the next section, SLAPP case studies of environmental disputes,

divided into sub-sections by publication year of the only book published entirely about

SLAPPs (Pring & Canan, 1996). Finally, the paper concludes by reaffirming the

necessity and urgency of public participation and risk dialogues.

Literature Review

An interdisciplinary investigation into SLAPPs and their environmental and social

consequences reveal a lack of attention and concern by academic scholars. The majority

of literature is written in law review journals. For example, Shannon Hartzler (2007) in

the Valparaiso University Law Review discusses one of most publicized SLAPPs, when

Oprah Winfrey won a SLAPP from Texas cattlemen for discussing beef and mad cow

disease on her show. Malena Barilai (2004) writes in QUILL Magazine that land

developers, business groups, and others with deep pockets and government connections

file the majority of SLAPPs. In the 2005 American Bar Association Journal, Margaret

Graham Tebo indicates Ohio has no Anti-SLAPP law. Marnie Stetson (1995) in the New

York University Law Review describes New York’s Anti-SLAPP, whereas London Wright-

Pegs (2009) analyzes California’s Anti-SLAPP statute. Also discussing California’s Anti-

SLAPP statute, Jerome Braun (2003) in the McGeorge Law Review mentions that while it

can be improved, was effective after 11 years.

Impacts of SLAPPs are discussed across multiple disciplines, yet direct

implications and comprehensive investigations are mostly unpublished. The exception is

a few websites and the co-principal investigators of the Political Litigation Project (PLP),

sponsored by the National Science Foundation. These co-directors of the PLP at the

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University of Denver are Dr. Penelope Canan and Dr. George W. Pring, who authored the

book on SLAPPs in 1996, SLAPPs: Getting Sued For Speaking Out. An addition, Dr.

Pring (1989) has published extensive SLAPP articles as a Professor of Law, and Dr.

Canan (1989) has published numerous articles in periodicals including Law & Society

Review (Canan & Pring, 1985), Sociological Perspective, Social Problems (Canan &

Pring, 1988), and Sociological Inquiry. These academic scholars coined the term SLAPP

and convey unique sociological and law perspectives. Their individual and collaborate

contributions for nearly three decades define the subject.

Important current information on SLAPPs and Anti-SLAPPs is provided by the

website of the Public Participation Project (PPP), www.anti-slapp.org. This PPP website

discusses state Anti-SLAPP statutes, and state judicial decisions setting Anti-SLAPP

precedent. The PPP director and Harvard Law graduate, Mark Goldowitz, founded the

California Anti-SLAPP Project, in reaction to SLAPPs against him and his clients (Brown

& Goldowitz, 2010). Another valuable website, http://law.wustl.edu/, provides the stalled

federal Anti-SLAPP legislation, The Citizen Participation in Government and Society Act

of 2009, along with John Glassman’s 2002 chart containing in-depth information on state

Anti-SLAPPs. The www.anti-slapp.org website describes anti-SLAPP efforts in all the

states with a color coded map. Goldowitz also presents general SLAPP information filed

against individuals and groups protecting the environment, non-profit organizational

targets, and academic targets, among others.

Mark Goldowitz co-authored with Samantha Brown in the same issue of the

Review of European Community & International Environmental Law as Catherine

Norman. In this issue, Catherine Norman discusses direct and indirect effects of SLAPPs

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and Anti-SLAPPs, along with data of impacts on the CWA and CAA (2010). Catherine

Norman is an economic professor and shares this discipline with Terrence Hurley and

Jason Shogren. Hurley and Shogren (1997) wrote “Environmental Conflicts and the

SLAPP” in the Journal of Environmental Economics and Management, and showed with

environmental conflict models that SLAPP restrictions do not increase dispute efficiency.

Policy decisions and social organization does not depend on efficiency alone,

rather they usually determine the best course of action with all parties’ viewpoints. A few

sociologists have published on SLAPP in law review journals, indicating the need to

maximize opinions and information. Penelope Canan (1989) writes an article in the Pace

Environmental Law Review discussing the SLAPP’s inhibition of informed political

change without all citizens’ viewpoints. Also published in a law review are University of

Florida sociology professors, who investigated the community Bucket Brigade’s

effectiveness in monitoring and reducing local industrial polluters (Overdevest & Mayer,

2008). Bucket Brigades are citizen and community groups monitoring and reporting

industrial pollution with air quality measuring devices within buckets. Overdevest and

Mayer (2008) indicate these low tech civil-society regulators need encouragement

strategies for gathering pollution risk information.

In addition to efforts at holding existing polluters accountable, social scientists

have investigated proposed industrial sites. Not In My Back Yard (NIMBY) incinerator

site proposal disputes in Pennsylvania show that citizens were unwilling to express

opinions as individuals, because they feared personal retribution by SLAPPs (Walsh,

et.al, 1993). Even though citizen groups and Non-Government Organizations (NGO) are

targets of SLAPPs, individuals targeted may experience larger consequences including

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alienation, expensive legal fees, reporting inhibition. Michael Bell (2011) discusses

SLAPPs inhibition of individual’s assessment of environmental risk and creating a

dialogue of risk rationality.

The environmental sociologist, Michael Carolan (2007), describes rethinking

assessment and mitigation of environmental threats with increased public involvement

and a precautionary approach. Citizens develop trust in government with involvement. A

sense of trust is essential to build a dialogic rationality of risk (Carolan & Bell, 2003).

For environmental policy to succeed, a dialogue must develop without inhibited opinion

or science to assess environmental risks. Michael Bell (2011) discusses SLAPPs

inhibition of individual’s determination of environmental risk and creating a dialogue of

risk rationality. Developing dialogues of risk is essential to protect a society and the

environment.

Dialogues of risk are diverted and distracted by SLAPPs’ transformation of a

dispute. William Freudenburg (2005) describes a second diversion form of privilege as

the diversion of attention or distraction that is rarely questioned. This second diversion

represents SLAPP results. He also discusses the need for closer attention to the

relationships between powers over discourses. Once a dispute makes it to court, those

privileged with the means for the best lawyers, often win the lawsuit and dispute.

Freudenberg’s diversion resembles Penelope Canan’s transformation of the

dispute by SLAPPs. Through a ten year period, Canan & Pring (1996) investigated

sociological perspectives of SLAPP case studies. This studying and reporting of SLAPP

case studies indicated drastic consequences to social organization, which is represented

by this list of actions initiating SLAPPs: writing, testifying, complaining, recommending,

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reporting, demonstrating, filing, lobbying, campaigning, rating, and collecting.

Besides sociologists, environmental scientists have investigated the Bucket

Brigades. A new strategy of public participation in environmental regulation, Bucket

Brigades create public policy dialogues and effective community environmental policing

(O’Rourke & Macey, 2003). SLAPPs’ target can be either citizens monitoring air

pollution with buckets, or those monitoring with the most expense equipment. Scientist

and academic scholars can suffer a heavy toll from SLAPPs. Defamation lawsuits

against scientist rarely have merit, yet they may result in a loss of research time, money,

job, emotional stability, and livelihood (Kuehn, 2004). Besides intimidation and

inhibition of citizen participation in social organization and environmental policy, results

of SLAPPs are drastic to communities and individuals’ quality of life.

Discussion of SLAPP Occurrence

The environmental movement developed in the 1960s, and flowered in the 1970s

with citizen concern, involvement, and empowerment. Public concern arose from Rachel

Carson’s Silent Spring and environmental disasters like the Santa Barbara oil spill, which

opened the governmental door for risk dialogues. At the time, the government expanded

the role of citizen involvement for self-serving recognition, that government enforcement

resources were insufficient and needed aid (Sax, 1971). Besides opening dialogues for

environmental policy, the passage of major environmental laws, such as the CWA, and

CAA, improved citizen rights to monitor environments and enhance government

regulatory enforcement (Stetson, 1995). The complexity of environmental regulation and

policy require public participation and involvement.

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The legislative foundations of the environmental movement were also fueled by

the courts opening to citizen environmental protection actions. Individuals were

empowered by ‘private Attorney-General’ status to sue for the environment (Norman,

2010). Judicial barriers soon developed to citizen actions with the onslaught of SLAPPs,

which increased in numbers since the 1970s. Ecological Strategic Lawsuit Against

Public Participation (Eco-SLAPP) counteracted the environmental movement by

restricting risk dialogues of wilderness, pollution, animal rights, and sustainable

development (Pring & Canan, 1996). There was a slow process of restricting Eco-

SLAPPs burden on courts and their inhibition on citizen participation in environmental

policy.

Some Anti-SLAPP statutes allow SLAPP defendants to file lawsuits for damages,

known as SLAPPbacks. Anti-SLAPP legislation first appeared in Washington state

during 1989 (Osborn & Thaler, 2008). Opposition to SLAPPs by citizens and NGOs first

developed in the 1980s through the courts, yet Anti-SLAPP statutes did not become a

majority in states until after 2005 (PPP, 2011). Unfortunately SLAPPs’ drastic

consequences of NGO/individual bankruptcy, lack of political power/creditability, and

other negative changes to social organization, have impacted the environmental

movement and reduced risk dialogues and assessment.

Anti-SLAPP Legislation

Many states have drawn from model legislation created by law professors and

other academic scholars, especially George Pring and Penelope Canan (1996). Federal

proposed legislation is based on their proposals, model legislation developed by the

Society for Professional Journalists (SPJ), and the best components of existing state Anti-

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SLAPPs (Brown & Goldowitz, 2010). The proposed federal Anti-SLAPP Legislation,

“The Citizen Participation in Government and Society Act of 2009“, is currently stalled

in U. S. House Subcommittee (www.anti-slapp.org).

The following section of Anti-SLAPP legislation is divided into four subsections:

three charts of states with Anti-SLAPP statutes organized by year, and a section on states

without Anti-SLAPP statutes. These statutes or lack thereof are based from www.anti-

slapp.org and cross referenced with a chart provided by John Glassman (2002) and other

sources. This updated website, anti-slapp.org, defines statements made by target as:

Made as part of an initiative

Referendum or recall effort

Before or submitted to a government body

Concerning an issue under review by that body

To influence government action or result are protected

The following three charts of Anti-SLAPP statutes are divided by statute adoption prior to

1996, from 1996 through 2002, and since 2002. On all of these charts the seven

columns/topics are the same. These state Anti-SLAPP charts enhance understanding and

initiate additional investigations.

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Table 1: State Anti-SLAPP Legislation Adopted Prior To 1996

State Anti-SLAPP Statute (Year)

Proposals/ Amendments

AllowsSLAPPbacks

Statement/ Free Speech Protection

Communication/ Petitioning Protection

Reference Environmental Advocacy/ Law

California CA. Senate Bill 264 (1992)

CIV. PROC. CODE § 425.16-425.18 (2009)

Yes Yes Yes Yes

Delaware DEL. CODE ANN. tit. 10, §§ 8136 – 8138 (1992)

No Yes Yes Yes No

Maine ME. REV. STAT. ANN. tit. 14 § 556 (1995)

No No Yes Yes No

Massachusetts MASS. GEN. LAWS ANN. ch. 231 § 59H (1994)

Proposed SB1618 (2009)

No Yes Yes No

Minnesota MINN. STAT. §§ 554.01 – 554.05 (1994)

No Yes Yes Yes No

Nebraska NEB. REV. STAT. §§25-21,241 – 25-21,246 (1994)

No Yes Yes Yes No

Nevada NEV. REV. STAT. §§ 41.635 – 41.670 (1993)

No Yes Yes Yes No

Oklahoma OKLA. STAT. TIT. 12, § 1443.1 (1994)

No No No Yes No

Rhode Island R.I. GEN. LAWS §§ 9-33-1 – 9-33-4 (1995)

No Yes Yes Yes No

Washington WASH. REV. CODE §§ RCW 4.24.500-520 (1989)

WASH. REV. CODE §§ RCW 4.24.500-525 (2010)

Yes Yes Yes No

Table 2: State Anti-SLAPP Legislation From 1996 Through 2002

State Anti-SLAPP Statute (Year)

Proposals/ Amendments

AllowsSLAPPbacks

Statement/ Free Speech Protection

Communication/ Petitioning Protection

Reference Environmental Advocacy/ Law

Florida FLA. STAT. §§ 768.295 & 720.304 (2000)

No No Yes Yes No

Georgia GA. CODE ANN. § 9-11-11.1 (1996)

GA. CODE ANN. § 9-11-11.1 (2006)

Yes Yes Yes No

Hawaii HAW. REV. STAT. § 634F-1 – 634F-4 (2002)

No Yes Yes Yes No

Indiana IND. CODE § 34-7-7-1 et seq. (1998)

No Yes Yes Yes No

Louisiana LA. CODE CIV. PROC. ANN. art. 971 (1999)

No No Yes Yes No

New Mexico N.M. STAT. §§ 38-2-9.1 – 38-2-9.2 (2001)

N.M. STAT. §§ 38-2-9.1 – 38-2-9.2 (2006)

Yes Yes No No

New York N.Y. C.P.L.R. 70-a & 76-a N.Y.C.P.L.R. 3211 (2002)

N.Y. C.P.L.R. 70-a & 76-a N.Y.C.P.L.R. 3211 (2008)

Yes Yes Yes No

Oregon OR. REV. STAT. §§ 31.150 et seq. (2001)

No Yes Yes Yes No

Pennsylvania 27 PA. CONS. STAT. § 7707 & §§ 8301 – 8303. (2000)

No Yes Yes Yes Yes

Tennessee TENN. CODE ANN. §§ 4-21-1001 -21-1004 (1997)

No No Yes Yes No

Utah UTAH CODE ANN. §§ 78B-6-1401 – 1405 (2001)

No Yes No No No

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Table 3: State Anti-SLAPP Legislation Since 2002

State Anti-SLAPP Statute (Year)

Proposals/ Amendments

AllowsSLAPPbacks

Statement/ Free Speech Protection

Communication/ Petitioning Protection

Reference Environmental Advocacy/ Law

Arkansas ARK. CODE ANN. §§16-63-501 – 16-63-508 (2005)

No Yes Yes Yes No

Illinois 735 ILL. COMP. STAT. 110/1 – 110/99 (2007)

No Yes Yes Yes No

Maryland MD. CODE ANN. CTS. & JUD. PROC. § 5-807 (2004)

No Yes No No No

Missouri MO. REV. STAT. § 537.528 (2004)

No No Yes Yes No

Texas The Citizens Participation Act (HB 2973)(2011)

No Yes Yes Yes No

Vermont 12 V.S.A. § 1041 (2002)

No Yes Yes Yes No

States without Anti-SLAPP law

Arizona, Colorado, Connecticut, Idaho, Iowa, Kansas, Kentucky, Michigan, Mississippi,

Montana, New Hampshire, New Jersey, North Carolina, North Dakota, Ohio, South

Carolina, South Dakota, Virginia, West Virginia, Wisconsin, & Wyoming.

Additional investigation into individual state Anti-SLAPPs may yield additional

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proposals, court decisions, and Eco-SLAPP cases. Court decisions have set SLAPP

precedence in multiple states for over three decades. In 1984, Colorado’s Protect Our

Mountain Environment v. District Court (POME) resulted in a District Court decision

setting effective precedence. POME is still used as precedence in Colorado and this

precedence has been reinforced by additional court rulings. Other states with court

rulings setting SLAPP precedence include Connecticut’s Anti-SLAPP court ruling

establishing precedence and West Virginia’s Supreme Court ruling to protect petitioning

and speech on issues of public interest.

State proposals, amendments, and discussions on SLAPP exist across the country.

Michigan Anti-SLAPP bill (HB 5036) is in subcommittee and resembles the federal bill

introduced by Steve Cohen, “The Citizen Participation in Government and Society Act of

2009.” South Carolina also has proposed Anti-SLAPP legislation (HR 3587). Other

states have legislation that overlaps public participation protection, such as Wisconsin’s

“Whistleblower Protection Act” which shields reporters from revealing their source’s

identity unless it is highly relevant to public interest.

Protection of public participation and advocacy are an essential part of Anti-

SLAPP legislation. Many states have evaluated and amended Anti-SLAPP legislation,

following investigations into their essential components. Pring and Canan (1996)

developed three tests/criteria necessary for Anti-SLAPP law to effectively protect public

participation in government. The first criterion is protection of oral and written

communication, covering all public advocacy and reporting to government. Pring and

Canan’s second test involves protections of forums, including all governmental and

citizen participation in public meetings and other public discourse. Their third criteria for

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Anti-SLAPP legislation are increasing SLAPP cures and prevention. This refers to early

review of SLAPPs by courts and shifting the burden of proof to filer, which discourages

further SLAPP filing.

Aspects of effective Anti-SLAPP legislation are shown by state implementation of

Pring and Canan’s model Anti-SLAPP bill. This four page proposal is located on page

201 in SLAPPs: Getting Sued For Speaking Out (1996). Overlap and additional criteria

of Anti-SLAPP legislation is presented in the developed charts of this paper. A strong

element of effective Anti-SLAPPs is specific reference of environmental law or

environmental advocacy. An important method for Anti-SLAPP to defeat Eco-SLAPPs is

specific connection to earlier precedence of right allocation in environmental laws, such

as CWA and CAA. Reaffirming rights in previous environmental legislation secures

public protection of environmental risk assessment and dialogue.

Ecological/Environmental SLAPP Case Studies

Community social organization is transformed negatively by SLAPPs, and their

results extend across the nation. Determining SLAPPs comprehensive direct and indirect

impacts to society is next to impossible, since the resulting fear and intimidation restricts

responses to surveys and studies. Pring and Canan (1996) have studied hundreds of

SLAPP case studies, and set an important timeline for information by their book

publication. They also find intangible and immeasurable impacts that inhibit

understanding of SLAPPs consequences, since citizen responses and participation are

lacking and inhibited by fear. Yet, apparent lengthy and expensive legal defenses, along

with other negative consequences, are revealed in SLAPP case studies.

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Eco-SLAPP Case Study Results Before 1996

Objections to environmental damaging activities have been repressed throughout

human existence. Just after the United States’ independence from England, citizens were

fined and prosecuted for speaking out against corrupt government officials. Not until 150

years later did SLAPPs reappear from disputes over the Wilderness Act of 1964. The

Sierra Club’s battles over natural resource extraction since the 19th century was the target

of the first officially reported Eco-SLAPP, Sierra Club v. Butz (Pring & Canan, 1996).

This Humboldt Fir counterclaim in 1972 was filed immediately after the Sierra Club’s

federal court challenge to logging a virgin forest of Northwestern California in what

would become the Salmon-Trinity Alps Wilderness. This Humboldt Fir Eco-SLAPP of

$1,750,000 was defeated and set judicial precedence, yet not without extensive expense

and a resulting chill echoed throughout the environmental movement.

The Sierra Club and other environmental activist groups are common targets of

Eco-SLAPPs, with an ultimate goal of establishing fear and to suppress activism

objection. Not all Eco-SLAPPs target environmental activist groups; land trusts and

preservation groups have also been SLAPPed. The Nature Conservancy (TNC), an ultra-

business like group, was the target of a $2,790,000 lawsuit in 1974 by seaweed-farm

developers in the San Juan Islands north of Seattle (Pring & Canan, 1996). This TNC

ecological strategic lawsuit arrived from inventorying potential natural areas and

recommending preservation to the county government. Pring and Canan (1996) mention

the court dismissed the case, then the appeals court affirmed it, yet the Eco-SLAPP of this

simple study dragged on for over fours years resulting in extensive expense, and created a

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shock wave of intimidation throughout land trusts.

Land use and development soon became a major dispute involving SLAPPs.

With the national housing and development boom in the 1980s, an onslaught of SLAPPs

emerged against citizens concerned over sprawl and sustainable development. In

Jefferson County, CO after two years of dispute over a 500 acre development site,

developers Gayno, Inc. filed suit during 1980 for $40,000,000, Protect Our Mountain

Environment v. District Court (POME) (O’Neil, 2011). POME is one of the most well

known case studies, which exemplified SLAPPs’ resource-draining effects and citizen

participation inhibition. This NGO eventually won the SLAPP after four years in court

and the 500 acre site was preserved as open space. Yet POME and environmental

activism became a loser. This costly six year battle with Gayno bankrupted POME, its

leaders dropped out of politics, and local citizens think twice about speaking out as the

saying “Remember POME” has the opposite force of “Remember the Alamo” (Pring &

Canan, 1996).

Eco-SLAPP Case Study Results After 1996

Suppression of public involvement in environmental policy since 1996 has

continued and even increased in some states that lack Anti-SLAPP statutes. SLAPP

disputes in both Michigan and Nebraska settled in 2008 show the different results of

having Anti-SLAPP or not. In 2006, the Ecology Center and two members of the

Michigan Chapter of the American Academy of Pediatrics were SLAPPed for $9,300,000

by Morton Grove Pharmaceuticals over a campaign to restrict use of pharmaceutical

lindane, Morton Grove Pharmaceuticals, Inc. v. The National Pediculosis Association

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(www.anti-slapp.org, 2011). Morton Grove settled the case with no money changing

hands, yet won the political dispute by forcing the Ecology Center to edit their website.

This is a clear example of dispute transformation, which shifts the dispute away from the

environmental damage (Pring, 1989). Without a Michigan Anti-SLAPP statute and

confronted with the power of the pharmaceutical industry, the Ecology Center had little

choice then to suppress its concerns over toxic chemicals (www.anti-slapp.org, 2011).

Many people speaking out and monitoring polluters in Michigan are inhibited by the fear

of SLAPPs, since no Michigan or federal Anti-SLAPP exists.

Another SLAPP settled in 2008 shows the importance of having Anti-SLAPP

legislation. In 2000 two Nebraska farmers were SLAPPed by Furnas County Farms for

written comments filed with state regulators about Furnas’ environmental record, Sand

Livestock Sys. V. Svoboda (www.anti-slapp.org). The two local farmers filed a

counterclaim under the Nebraska Anti-SLAPP. This action leveled the dispute and

stopped a conviction and the defamation fines. Their Anti-SLAPP was won in 2005, with

an award of $900,000 plus legal fees, yet was overturned by the appeals court three years

later. This Anti-SLAPP prevented a SLAPP award, but did cost the local farmers eight

years of legal fees and inhibited dialogues on environmental risk.

In another case study, dialogues and monitoring of environmental risk in Rodeo,

CA initiated unique community activism methods (Bucket Brigades), and eventually

proved the importance of Anti-SLAPP legislation. The California petrochemical facilities

of Tosco-Unocal and Chevron experienced repeated fires, explosions, and chemical

releases throughout the 1990s (O’Rourke & Macey, 2003). Citizens in Rodeo, CA took

action by developing bucket brigades, and hired a lawyer after a significant industrial

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accident. Over a period of two weeks, Unocal exposed the Rodeo, CA community to an

estimated 200 tons of the toxic refinery catalyst Catacarb (Overdevest & Mayer, 2008).

While a civil case was pending, community members were empowered by monitoring

Unocal’s and other polluters’ fence lines with low cost air-quality plastic buckets devices.

The civil case was won with monetary awards for the community. Their effective citizen

involvement holding polluters accountable with buckets was adopted across the U.S. and

eventually around the world.

The strong prospects of Bucket Brigades as a community activism tool

empowered the San Francisco community to engage in risk dialogues. Denny Larson, a

environmental justice activist working with Communities for a Better Environment

(CBE), formalized the Bucket Brigade as an organizing model and developed the Global

Community Monitor (Overdevest & Mayer, 2008). With Bucket Brigades spreading

around the world, industrial polluters became concerned over citizens monitoring and

implementing risk dialogues. Violations of the Clean Air Act caused lawsuits to emerge

from Bucket Brigades’ monitoring and action. In 1999, the CBE was SLAPPed in federal

court by Tosco to deter pollution lawsuits, Tosco v. Communities for Better Environments

(www.anti-slapp.org). This suit was filed in federal court to avoid California’s Anti-

SLAPP law, and was dismissed for lack of subject jurisdiction. This dismissal indicates

the importance of Anti-SLAPP legislation, which fueled citizen participation in

environmental monitoring and risk dialogues.

Conclusion

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An investigation of SLAPPs reveals a need for Anti-SLAPPs to allow citizen

participation and development of risk dialogues. Individual citizens and NGOs are the

targets of an onslaught of SLAPPs, as thousands of SLAPPs are filed each year (Tebo,

2005). Citizen participation in environmental policy, like the Bucket Brigades, is

essential for holding polluters accountable, enhancing community trust, and developing

effective risk dialogues and assessment (Carolan & Bell, 2003). Tosco and other

polluters have reduced emissions because of Bucket Brigades’ increased monitoring and

risk dialogues (O’Rourke & Macey, 2003). Anti-SLAPP legislation discourages the

polluter’s approach of intimidation, and their attempts at transforming the dispute

dialogue.

Social organization relies on citizen trust in the process of policy decisions. For

effective environmental policy, public participation is an essential component of risk

dialogues. A sense of trust in the policy process is the foundation for dialogues of risk

rationality (Bell, 2011). Without public participation holding polluters accountable,

regulation agencies struggle to monitor pollution and enforce environmental laws.

Citizens and NGOs can’t let SLAPPs inhibit voicing concerns to legislatures.

Many legislatures have recognized the value and necessity of citizen enforcement

of environmental laws. Legislatures’ recognition is demonstrated by including citizen-

suit provisions in the Clean Water Act, the Comprehensive Environmental Response,

Compensation, and Liability Act (Superfund), the Solid Waste Disposal Act, and the

Clean Air Act (Stetson, 1995). With large regions to regulate, government agencies rely

on citizen monitoring. SLAPPs deter public involvement that is required in major

environmental statutes.

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SLAPP case studies involving development, pollution, and preservation disputes

show consequences to social organization and environmental policy. SLAPPs countered

the environmental movement and have increased since the 1970. SLAPPs result in

expensive litigation, refocused resources, and intimidation. Additional negative

consequences also include fear and inaction, but are difficult to determine. For dialogues

of risk to influence environmental policy, the federal government and all states should

adopt Anti-SLAPP laws. These Anti-SLAPPs are essential for social and environmental

protection.

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References

Barzilai M. (2004). “Public Taking a ‘SLAPP’ with Filing of Frivolous Suits”. QUILL

Magazine, September, 1.

Braun J. (2002). “California’s Anti-SLAPP Remedy After Eleven Years”. McGeorge

Law Review, 34(4), 731-783.

Bell M. (2011). An Invitation To Environmental Sociology. Sage Publications, Inc.,

Washington DC, 249-252.

Brown S. & Goldowitz M. (2010). “The Public Participation Act: A Comprehensive

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