By Chris White
An eco-terrorist group that frequently instructs activists how to sabotage energy projects is arguing one of the companies behind the Dakota Access Pipeline cannot sue it because the loose-nit group is not an entity.
Attorneys for Energy Transfer Partners (ETP) argued in court Wednesday that Earth First! should be held accountable for eco-terrorism because it’s a legal entity that can be sued — ETP believes it should be able to sue a publication the group uses to distribute source material. Earth First! often publishes pamphlets instructing activists how to avoid legal issues associated with sabotage.
ETP sued Earth First!, Greenpeace, and BankTrack in 2017 for $1 billion, alleging all three groups worked to undermine the $3.8 billion pipeline now channeling oil from North Dakota to Illinois. Various legal groups maintain Earth First! is a social movement or philosophy, like Black Lives Matter or the Occupy movement, and therefore is not subject to a lawsuit.
“It’s an absurd argument that they’ve made. Earth First! never appeared. Earth First! Journal asked to draft an amicus brief. Then they file a motion for sanction because we sued an organization that doesn’t exist because it is a philosophy,” Michael Bowe, an attorney representing ETP, told The Daily Caller News Foundation.
Bowe also gained prominence in 2016 for being a member of a law firm representing President Donald Trump. He has also been at the center of many of ETP’s biggest legal fights to preserve the company’s ability to construct the so-called DAPL pipeline, which received heavy condemnation from activists during the Obama-era. Activists believed the project risked poisoning a nearby water supply.
“They made a motion — they say it’s a philosophy. They are an association that operates under a banner. the law is pretty clear,” he added. “That’s how you operate so you can be sued. the reason why they are focused on that is because the suit alleges that they were a conduit for funds to the Red Warriors.”
One of Earth First!’s representatives made similar arguments during an event in Washington, D.C., in January. “Earth First! is not actually a group … It is a philosophy, a movement, so you can’t sue an idea,” Rachel Meeropol, the chief counsel for Earth First! Journal, said during a Greenpeace meeting on Jan. 30. The group rose to prominence in the Southwestern U.S. during the late 1970s specifically to instigate direct action against companies like ExxonMobil and Shell.
An analysis of her group’s tax filings appears to refute her argument. Earth First! has filed seven years’ worth of tax documents, and has a registered Employer Identification Number, according to Florida’s Department of State website, which would appear to make it susceptible to lawsuits. Earth First! has never responded to TheDCNF’s repeated requests for comment about the validity of the group’s claims.
ETP, along with logging company Resolute Forest Products, have accused Greenpeace and Earth First! of lying to activists about various projects to generate money for operating expenses. They also encourage activists to use direct actions against projects that can hurt communities and cost American jobs, according to ETP and others.
Greenpeace admitted in legal filings its campaign to vilify a Canada-based logging company was based on “hyperbole” and “non-verifiable statements of subjective opinion” that weren’t meant to be taken literally. The group, which began targeting Resolute in 2012, admitted to using heated rhetoric that was not factual to avoid being held liable for damages in its legal battles.
Greenpeace called Resolute officials “forest destroyers” who were causing a “caribou death spiral and extinction” in its campaign to get the company to bend to environmentalist demands. Greenpeace even had a webpage listing its case against Resolute, and what it wants the company to do, which includes suspending logging operations.
Earth First! and Greenpeace, for their part, argue ETP and Resolute are using an underhanded legal technique called Strategic Litigation Against Public Participation (SLAPP) to stifle their activist network’s rights.
Corporations use SLAPP to chill critical speech and advocacy on matters of public interest, Greenpeace and Earth First! argue. They also suggest companies are using Racketeer Influenced and Corrupt Organization Act (RICO) as a type of updated version of SLAPP.
The RICO statute allows litigants to include all people involved in a conspiracy in a lawsuit. If civil society loses its ability to build power through coalitions that could be targets for “criminal conspiracy,” then the companies win and democracy, communities and the planet lose, according to Greenpeace.
Federal Judge Billy Roy Wilson ordered ETP in July to explain why Earth First! should be included in the lawsuit. The order came the day before he dismissed BankTrack as a defendant, ruling that encouraging banks and investment firms to divest from the DAPL was not a RICO violation.
That left Earth First! and Greenpeace as the remaining defendants, though Wilson called the allegations against Greenpeace vague and ordered ETP to file an amended complaint with more details. That document is pending. The energy company maintains that Earth First! is an established group that raises money.
Earth First! Journal is “the agent of Earth First,” attorney Lauren Tabaksblat wrote in court documents Wednesday. “Nevertheless, it self-servingly characterizes itself as a ‘philosophy,’ has deliberately failed to incorporate, and denies its existence to authorities, so as to frustrate legal process and avoid liability for the harm caused by its eco-terrorist activities,” she added.
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