Are RICO charges part of a new corporate playbook to suppress opposition from environmentalists? TRNN speaks to Greenpeace USA General Counsel Thomas Wetterer
DIMITRI LASCARIS: This is Dimitri Lascaris for the Real News. Energy Transfer Partners, the company behind the Dakota Access Pipeline, has accused Greenpeace, another environmental group of “eco-terrorism”. Energy Transfer Partners has sued the environmental groups for 300 million dollars claiming the group’s resistance to certain projects broke federal racketeering laws. It alleges in particular that Greenpeace is part of a “network of putative not-for-profits and rogue eco-terrorist groups” and that they use “criminal activity and campaigns of misinformation”. During the ‘No to Dakota Access Pipeline’ protest last winter, an alternate Jenny Newfield describes Energy Transfer Partners’ allegations against Greenpeace as jaw-dropping. The Racketeer Influencing Corrupt Organizations Act, or RICO, was enacted in the 1970s to combat the mafia, but this is not the first time that RICO accusations have been leveled against environmental groups. So are RICO charges part of a new playbook for fossil fuel interests to use in order to suppress opposition from environmentalists? Now here to discuss this with us is Thomas Wetterer who is the general council of Greenpeace USA. He joins us today from Washington D.C. Thanks for joining us Tom. TOM WETTERER: Sure. Thank you Dimitri. DIMITRI LASCARIS: Tom, could you tell us in broad strokes, what are the ways in which Energy Transfer Partners through its attorneys that Greenpeace and other environmental organizations have violated RICO? TOM WETTERER: Well that’s interesting you say in broad strokes because that’s exactly what this lawsuit is. And if you would believe what Energy Transfers is saying, and what their attorneys are saying, any type of advocacy work, in this particular case with regard to the Dakota Access Pipeline, but in general saying that constitutionally-protected advocacy work and free speech is … should be criminalized. That’s really what it comes down to. DIMITRI LASCARIS: Tom, one of the more eye-catching allegations that I saw in the complaint relates to drug trafficking. Can you tell us what that allegation is all about? TOM WETTERER: I have absolutely no idea what that’s about except for a lot of the other things that are in the complaint are just ridiculous assertions that are just thrown on paper to try to make one reading it think there is some legitimate criminal behavior that went on here, which is just, you know, not the case. There’s no basis for the racketeering claims or really, quite frankly, any of the other claims that are filed here. DIMITRI LASCARIS: Part of the RICO claim, as I understand it, is that the statements being made by Greenpeace and other environmental organizations were false in material ways. What are some of the allegations in that regard in terms of false statements, and how does Greenpeace respond to those allegations? TOM WETTERER: Well, first we would respond to say they are without merit. There were no false allegations at all. Secondly, this kind of fits the pattern of another RICO lawsuit that was filed against us by the same law firm and in essence, the allegation is that we made false statements, which we didn’t, and that we knowingly made the false statements and the allegation is by doing that we committed fraud. We know of no case that’s out there that’s ever, ever found that a defamation claim could … even if there was, and there wasn’t any here or in the other case … We found no case where that could even be used as a predicate act to file a RICO case as they’re trying to do here and in the other lawsuit. DIMITRI LASCARIS: The other case, I take it, you’re referring to is the case filed by Canadian company Resolute Forest Products against Greenpeace and other environmental organizations. Is that correct? TOM WETTERER: That’s correct. DIMITRI LASCARIS: What is the status of that? Procedurally, what is the status of that RICO claim currently? TOM WETTERER: Well, procedurally it was filed in May of 2016 and now we’re at the point in … and that was filed in Georgia … we got the case moved because it was improperly filed there in Georgia, now it’s in San Francisco and there is a hearing scheduled for October the tenth at two PM in the Federal District Court in San Francisco to hear our motions to dismiss the lawsuit. DIMITRI LASCARIS: The motion to dismiss is predicated purely for purposes of the motion on the allegations being factually correct and I take it the position of Greenpeace is gonna be that even if the factual assertions are correct, as a matter of law the claim fails. Is that essentially what that motion is gonna be about? TOM WETTERER: Essentially what it is … it’s not on the facts. It’s on the matter of law that in that case resolute and the Kasowitz firm did not even properly plead any plausible facts that could be the basis for any legal claims. We also have filed an anti-SLAPP motion under the California Anti-Slap statute. DIMITRI LASCARIS: Can you explain to us what exactly is that statute all about? TOM WETTERER: This statute is designed to protect advocates, like Greenpeace and others, from being sued for exercising Constitutional rights like free speech and doing their public interest advocacy work and it’s designed to protect them from corporations, as in this case, from really using the law as a weapon that it should not be to silence free speech. Since this really is about that other case and this case is about free speech, then that puts an additional burden on the plaintiff that files that type of lawsuit. To show the likelihood of winning it at early stages so that they’re not allowed to drag the defendant through a long and costly litigation, which is really what these cases are designed to do. DIMITRI LASCARIS: If the court determines that either the Energy Transfer Partners case or the Resolute Forest Products case is a SLAPP suit what, if any, are the cost consequences to the plaintiff in that case? TOM WETTERER: If one were to win on an anti-SLAPP statute, then normally … and I know this is the case in California … It does allow for the defendant in that case to seek and collect attorney’s fees. DIMITRI LASCARIS: Right. And the general rule in U.S. litigation is that the parties bear their own cost. So this is a part of the general rule. TOM WETTERER: That’s correct. DIMITRI LASCARIS: Let’s talk about the costs for a moment. What are … can you give us a sense of the cost, both financial and otherwise, of an organization like Greenpeace having to defend a lawsuit that brings such inflammatory allegations against the organization that potentially that would cost hundreds of millions of dollars in damages? TOM WETTERER: Right. Well, it definitely is not cheap when you’re talking about long, drawn-out litigation. I’d rather not get into dollar figures. That will probably come out later, but it certainly is also a time-drain and that’s another reason for these cases. It does take a lot of time to defend these cases, a lot of staff time. It’s not just attorneys but others on staff. It’s really time that we’d rather be spending defending the environment and that’s really what these corporations want. They want to go after critics and they want to tie them up in court and try to distract them from doing our public interest work. They also want to show others from doing the same. The want to send a message to others that, hey, don’t mess with us. Don’t speak out. Don’t exercise your first amendment rights or we’re gonna come after you too and also tie you up in expensive and time-consuming litigation. DIMITRI LASCARIS: Now you mentioned briefly a few moments ago the law firm that brought forward this case on behalf of Energy Transfer Partners and also the Resolute Forest Products case, Kasowitz Benson [inaudible 00:08:58]. What can you tell us about this law firm? TOM WETTERER: Well, maybe I can just briefly start by saying there is an interesting article that just came out today, I believe, in Bloomberg Business Week, and the title of it is “How a Corporate Assault on Greenpeace is Spreading” and actually I think the title may also be better said if it was worded “How a Corporate Assault on Advocacy or Democracy is Spreading”. But, within this … I encourage people to read it … But it does quote Michael Bo, who is one of the lead partners in both cases, the Resolute case and the Energy Transfer Partners lawsuit. And he’s come out and very clearly said that he’s been in touch with other companies thinking of filing their own racketeering suits and he knows others are considering doing this. So, this is very clearly a ploy on behalf of corporate interests and led by Kasowitz, and I don’t think it’s a coincidence that Kasowitz is the go-to law firm of Donald Trump. I’m actually kind of surprised that he did not try to name the Obama administration as part of this criminal enterprise in this lawsuit because they were, within that administration, they clearly saw the issues that we were speaking out on with regard to this pipeline and then with this administration Trump didn’t waste any time in basically telling the Army Corp of Engineers to stand down so this project could proceed. Just like all the other corporate interests that are being pursued by this administration and it really is an attack on democracy and advocacy work. It’s corporations through this government, through Kasowitz, possibly other firms and corporations that’ll come forward but basically saying stay out of our way. We’re going to continue or environmental destruction and don’t even speak out against us. DIMITRI LASCARIS: You know, something that’s often lost in the discussion about these types of lawsuits is there’s an unspoken assumption that organizations … I find often talking to people about this … that organizations like Greenpeace and these large plaintiffs are more or less of a level playing field. Isn’t it fair to say, and I know you don’t want to get into the particulars and understandably so of Greenpeace’s financial capacity, but isn’t it fair to say that assumption is sorely mistaken? And that in fact, even if a corporation like Resolute Forest Products or Energy Transfer Partners loses this litigation and expends potentially millions of dollars in prosecuting it, that is not going to constitute a substantial part of its financial capacity? It might not even be material to the organization, but an organization like Greenpeace if it has to litigate this case for years, and it is ultimately successful, it could still be made to incur cost both financial and otherwise that have a devastating impact on the organization. Do you think that’s a fair characterization of the balance of power in this type of litigation? TOM WETTERER: Absolutely it is. There’s just no comparison in terms of the amount of resources and we really operate in the public interest and we really want to use the limited funds in the scheme of things to really put that toward our environmental work. These corporations have something else in mind to divert us from that. We’re not gonna be diverted. This attempt to try and silence us is not gonna work. It’s really only gonna make us more determined, quite frankly, and they’ve picked the wrong fight and you’ll see in this lawsuit … I think we’ve seen it in Resolute and we’re gonna see it more here too … Where other groups are viewing this as a real attack on advocacy work. Who is next? If corporations like this are allowed to get away with these types of lawsuits there’s no end in sight for what this means for basically exercising your Constitutional rights to speak out when you see wrongs that need to be identified. DIMITRI LASCARIS: We’ve been talking so far about the litigates principally, and we’ve touched upon Kasowitz Benson. In 2013, and it pains me to say this Tom, because like you I am an attorney, but a poll by Pew Research found that the legal profession is regrettably the most despised profession in America. And I admit that this question may be somewhat rhetorical, but do you think that rich lawyers following jaw-dropping RICO complaints against reputable environmental organizations is likely to do anything to enhance the standing of the legal profession in the United States? TOM WETTERER: I don’t see that at all and you asked about Kasowitz and I think that really needs to be looked at. This threat that they’re making on coming after us on behalf of other corporations they’re really trying to use this as a marketing tool and they really want to be the leader in using this tool. And it really is an inappropriate use of the legal system. So I don’t see how it could reflect well at all on the legal system and I encourage people just to look at the history of Kasowitz. They’ve represented Mr. Trump a lot of times over the years on a lot of lawsuits. Check the history on that and see how they’ve been his go-to law firm to really go after people that have ticked him off in one way or another. DIMITRI LASCARIS: Let’s talk about … before we conclude … What’s actually happening at the site of the Dakota Access Pipeline. Is oil currently flowing through the pipeline? And I understand that Native American groups have filed a lawsuit saying the proper assessments were not done by the Army Corp Engineers before the pipeline was built. Is that stopping oil from flowing or is it, in fact, begun? TOM WETTERER: I believe the oil is flowing. I think around June the first or so, it began flowing and it currently is, to my knowledge. Yeah, that litigation is still going on and the Native American groups are still standing up and speaking out for this attack on their cultural rights and their water rights and just really detrimental effect, threat to their way of life. So they’re still fighting it. But the oil continues to flow. I think also, if I may add, it’s interesting also to note that that litigation is going on about the permitting process and what the Native Americans, the valid claims that they have about the threats that this project poses for them. And then you have this Energy Transfer lawsuit that really isn’t so much about the issues themselves. It really is an attack on the messengers and advocacy groups and even the Native American groups there have been saying about this project. So again, they don’t want to just argue the merits of this project because really, quite frankly, it’s just a bad deal. But it is an attack on the messengers. So it really needs to be stopped. DIMITRI LASCARIS: And lastly, before we conclude, what is the next major step procedurally in the Energy Transfer Partners case? Obviously the complaint has been served. Has an answer been filed or are any preliminary motions pending? What can we expect to happen in the near term? TOM WETTERER: Well, we have not been officially served with it yet. So at this point the next step would be when we get service, we are going to respond in kind and we’ll leave it at that for now. DIMITRI LASCARIS: Okay. Well this is a story we at the Real News are keen to follow so we hope that you’ll keep the surprise of major developments and that we can have you back on the show to talk about the progress of this highly controversial litigation. TOM WETTERER: I would love to do that. Thanks for having me. DIMITRI LASCARIS: Thank you for joining us today, Tom. This is Dimitri Lascaris for the Real News.