The New Corporate Playbook, Or What To Do When Environmentalists Stand In Your Way

I'm referring to the new playbook for American corporations, and their perverse adaptation of the old adage: "The best defense is a good offense." Companies are no longer satisfied with evading their liability for human and environmental harms.
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It's no secret that people who speak out to defend the environment do so at great risk. From Chico Mendes, who was killed in 1988 for defending the Brazilian Amazon, to Ken Saro-Wiwa, executed in 1995 by the Nigerian military junta for leading his Ogoni people in protest against Shell's destruction of Ogoniland, human rights and environmental activists -- or earth rights defenders -- have been targeted for years. The list of those killed for protecting the earth and its people is far too long, and yet recent trends indicate a rise in violent tactics, with at least 156 defenders in 25 countries killed in 2015 alone.

When egregious murders like these occur, as in the March assassination of Goldman Environmental Prize winner Berta Cáceres in Honduras, we react with outrage and we demand accountability; We talk about justice and strategies for holding the perpetrators legally accountable; we lobby our government to impose sanctions; and here in the US, we feel relatively lucky that we can do our work as environmentalists without having to fear for our lives.

But what happens when those very governments, courts, and legal systems that we turn to are turned against us by the very same powerful elites that we aim to hold accountable? In the U.S. the insidious effort to target earth rights defenders has been more subtle, but the goal is the same: silence the environmentalists, and let the profit continue.

I'm referring to the new playbook for American corporations, and their perverse adaptation of the old adage: "The best defense is a good offense." Companies are no longer satisfied with evading their liability for human and environmental harms. Of course, they continue their tried and true tactics of denial, cover ups and fraud, but with the additional goal of silencing their critics, they are counter-attacking, mounting a sophisticated and well-funded campaign to target, sue, surveil, and harass the activists, lawyers, and NGOs that expose their harms. They have powerful allies in Congress and in the media that aid them in their efforts to intimidate, distract and sap the resources of organizations that are already out-resourced in what can only be described as David and Goliath struggles.

As a lawyer and director of an international human rights and environmental NGO, I have direct experience with this new reality, and it is a serious threat to my organization's work and the work of our partners. Here is what we see:

Retaliatory litigation: While retaliatory litigation did not start with Chevron its law firm, Gibson Dunn & Crutcher, they have made it an art form. The decades-long fight of Ecuadorians affected by Chevron's contamination of the Amazon is infamous and tragic. Although Chevron forced the claims to be litigated in Ecuador, they subsequently lost and were ordered to pay $9 billion to affected communities. After more than a decade, Chevron has not paid a cent. Instead, they sued the affected Ecuadorians and their lawyers back in the United States under the federal anti-racketeering law (known as RICO).

The basis for Chevron's RICO suit is flimsy. But that may (and in this case did) not matter when you have an unlimited budget to bury your adversary with. We may yet see justice for the Ecuadorian communities victimized by Chevron, but it is hard to say that Chevron's strategy of suing nearly everyone involved was unsuccessful. It distracted everyone from the real issue of Chevron's egregious destruction of the Amazon, and the threat of litigation has alienated and chilled further accountability efforts. For example, Patton Boggs -- a law firm that had represented the affected Ecuadorian communities -- buckled in response to Chevron's litigation press and abandoned their clients.

Greenpeace has just recently been hit with a similar RICO lawsuit. Taking a play from Chevron's playbook, in May, Resolute Forest Products, a Canadian logging company sued Greenpeace for . . . well . . . free speech. The complaint would almost be funny if it weren't for the chilling impact that such action has. It makes outrageous claims that Greenpeace is liable under RICO because they have publicly called Resolute a "forest destroyer." We would laugh at the company's likening this to mafia-like conspiracy, except as with Chevron, we have seen the damage these baseless lawsuits can cause. At the very least, Greenpeace is going to have to spend resources and time defending themselves instead of the environment. That is a victory for Resolute, whatever the outcome of the lawsuit. And it is a loss for the planet and every one of us who now has to deal with such harassment.

Attacks on funding sources, partners and clients: The scope of corporate retaliation is wide. After filing a RICO suit -- or a similar offensive action -- we see corporations try to put pressure on the supporters, allies and funders of their RICO defendants. It should come as no surprise that Chevron is also leading in these scorched-earth tactics. As part of their Ecuador strategy, Chevron harassed activists, like Amazon Watch, and environmental experts, like the Environmental Law Alliance Worldwide (ELAW), with discovery requests, and sued litigation funders to deprive the affected Ecuadorians and their legal team of the ability to mount a defense. Our lawyers at EarthRights International defended Amazon Watch and other activists, and -- thankfully -- Chevron was rebuffed. But defending against these efforts is a huge drain on our resources and those of our clients. Both ERI and our NGO clients had our hands full for the year it took to defeat Chevron's subpoenas. That, of course, was the point and we now realize that we must be ready for the next legal action, no matter how frivolous.

And, in case you might think otherwise, it is not only Chevron. When Dole was sued by Nicaraguan banana farmers suffering sterility because of pesticides Dole used, they sued a Swedish documentary filmmaker for defamation. The filmmaker, Fredrik Gertten, bravely and successfully fought the defamation lawsuit; but the Los Angeles Film Festival, because of pressure from Dole, pulled the film from competition.

Corporate espionage and surveillance: Almost every major multinational company has some internal "security" department . . . fair enough. But some companies now have the equivalent of private intelligence services that are spying on and harassing activists and defenders. These services are populated with former and even current CIA agents. And they are involved in some scary stuff. In November 2013, Gary Ruskin published a report that everyone should read, which highlights some of the tactics corporations are using against activists in the United States, including: hacking, wiretapping, physical surveillance, under-cover spies, and physical property invasions. It is no small cause for concern that what we know about corporate espionage is clearly only the tip of the iceberg.

Using Congress and the media to do their dirty work: As if the world's most well-heeled companies did not have enough of an advantage, they have also used the media and allies in Congress to silence dissent. The Washington Times, for example, has harassed Amazon Watch (and its funders) with misleading questions about Amazon Watch's efforts to hold Chevron accountable for contamination in Ecuador. And Congress has launched investigations into groups seeking information and accountability from Exxon for their lies about climate change.

As a community, we have recognized the need to work together to stop the abhorrent violence against earth rights defenders. I am married to one of these defenders and so the wife and mother in me watches these trends with a sense of personal urgency. But the lawyer in me knows that we need that same unity to stand up to the retaliatory legal tactics that corporations are undertaking against earth rights defenders in the US. These incidents are not isolated or unconnected. Make no mistake; there is a playbook that is being marketed to companies for "what to do when pesky environmentalists stand in your way." We need to make sure that the organizations and individuals that face any threats -- physical, digital and legal -- have the resources and support they need to fight it. Because silencing earth rights defenders by any means is not an option.

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