February 12, 2018
Oil and gas companies are moving beyond simply filing lawsuits against municipalities that pass ordinances banning drilling and other types of industrial activity. In recent months, the energy industry, along with a state attorney general, has started going after the lawyers who are using novel legal arguments to protect small towns and the environment.
Since the dawn of the environmental movement, polluters have faced resistance from local residents and environmental advocates. But as industry encroached deeper into the natural world, a new legal movement emerged to end the centuries-old American legal tradition that defined nature as property.
Most community activism has focused on trying to influence environmental agency decision-making, and then using the courts to challenge the issuance of permits by the agencies. The new legal movement pushes a strategy fundamentally different from that of most environmental organizations. Instead of working through normal legal channels of permitting and suing, the new strategy seeks to enshrine a doctrine recognizing the fundamental right of community self-governance over their own natural resources.
Another component of the movement emphasizes the “rights of nature.” If a corporation can have rights, for instance, then so should rivers and forests. Lawyers use the example of children, who typically don’t have a right to file a lawsuit. However, a guardian who is appointed can file a lawsuit on behalf of the child. Lawyers are making the same argument for nature, seeking judicial recognition of it as a “person,” with rights of its own to exist and flourish. Instilling nature with the right to sue would force humans to take care of the water and trees they need to survive — or face penalties.
A leading practitioner of this new legal thinking is environmental attorney Thomas Linzey, who has spearheaded the introduction of legally enforceable rights for ecosystems and community bills of rights ordinances around the world. Linzey has more than 20 years of experience facing off against some of the largest corporations in the United States — he has seen how far industry will go to protect its profits.
In January, a federal judge ordered Linzey, co-founder of the Community Environmental Legal Defense Fund (CELDF), to pay a portion of the legal fees incurred by a company that had proposed a fracking waste injection well in a small town that Linzey and his team were suing. The judge accused Linzey and one of his colleagues of using a “frivolous” legal argument to defend an ordinance in Grant Township, Pennsylvania, that banned such wells.
He knew it was inevitable that the other side would find new avenues to punish people trying to stand up for their communities. The judge’s sanction against him and a colleague — ordering the pair to pay $52,000 in attorney fees to the company that wants to drill the disposal well — “is about the oil and gas industry not being satisfied with going after the municipalities, but now trying to go after the lawyers,” Linzey told ThinkProgress.
Nearly 200 communities have adopted CELDF-drafted Community Bills of Rights laws that elevate community self-determination — for both human and natural communities — above the power of corporations and other levels of government to override core aspects of local democracy. Based on its different approach to protecting communities, Rolling Stone magazine described CELDF as “a civil-rights group for the environment.”
But the oil and gas industry has a different opinion of the group. Industry advocacy group Energy In Depth contends CELDF’s actions are driven by an interest in shutting down not just fracking, but all corporate activity. “CELDF has been behind numerous failed attempts to ban fracking and other oil and gas activity at the local level by claiming the individual property rights should be trumped by the rights of ‘nature and ecosystems’,” Energy In Depth wrote in a blog post last May.
Despite resistance from industry and government, the new legal movement produced a rare victory in 2016. A case brought by Our Children’s Trust, an Oregon-based nonprofit, was the first to use a theory known as atmospheric trust law, which argues that the federal government, through actions like fossil fuel subsidies, has actively undermined the youth’s right to a livable climate. A federal judge in Oregon ruled in the group’s favor. By failing to curb U.S. greenhouse gas emissions that cause dangerous climate change, the U.S. government is violating citizens’ rights to life, liberty, and property, the judge found.
Unlike the Oregon judge, though, the Pennsylvania court is tipping the scales in favor of the developer of the fracking wastewater well by sanctioning Grant Township’s attorneys for using the community rights argument. “A judge in Oregon ruled that a right to a livable climate is a fundamental constitutional right. We are arguing the right of local communities to self-government is a fundamental constitutional right,” Linzey said.
Back in 2014, with the assistance of CELDF, Grant Township, located about 80 miles northeast of Pittsburgh, passed an ordinance that banned frackwater disposal wells. The township later adopted a municipal charter that stated its residents have a “right to stop that which harms them.” It was this ordinance that Linzey was trying to defend in January.
That same year, a company, Pennsylvania General Energy, fought the town’s ordinance against disposal wells. But the company not only filed a lawsuit against the township. It urged the court to apply sanctions on Linzey and fellow CELDF attorney Elizabeth Dunne for using unique arguments to defend Grant Township’s ordinance.
In a January 5 ruling, Magistrate Judge Susan Baxter of the U.S. District Court for the Western District of Pennsylvania sided with the company and ordered the two attorneys to pay a portion of Pennsylvania General Energy’s legal fees because the judge said they used a “frivolous” argument.
“Judge Baxter sanctions us for that argument. And yet in Oregon, there are people making the argument that the right to a sustainable climate system is a fundamental constitutional right,” Linzey said. “Instead of getting sanctioned, they get awarded because the judge finds that the right to a livable climate is a fundamental constitutional right.”
One of the most famous cases against an attorney fighting environmental contamination occurred in federal court in New York. Human rights lawyer Steven Donziger helped secure a landmark victory in 2011 when an Ecuadorian judge ordered Chevron to pay $9 billion in compensation for environmental contamination in the country. But a federal judge found that multiple court rulings in Ecuador against Chevron were the product of “egregious fraud.”
The judge’s ruling relied on fabricated testimony by a Chevron Witness, according to Donziger, who argued the U.S. Department of Justice should launch a criminal probe into Chevron and the company’s law firm in New York.
In another major attack on an environmental lawyer, Colorado’s attorney general last year ordered a lawyer who had filed a lawsuit to protect the Colorado River to voluntarily withdraw the complaint or face major sanctions. The government’s threat worked: given the scope of possible financial penalties, attorney Jason Flores-Williams reluctantly withdrew the lawsuit in December.
In Colorado, Flores-Williams was hoping to win his own landmark environmental case. He filed a federal lawsuit in September, listing the Colorado River ecosystem as the plaintiff and naming the state of Colorado as the defendant. Using an argument that had worked in other countries, Flores-Williams stated Colorado had violated the river’s right to flourish by polluting and draining it and threatening endangered species. Scientists project that increased temperatures brought on by climate change will cause the river to shrink.
The lawsuit was a first-of-its-kind in the United States. But the argument that nature has legal rights has been used successfully in other countries. In Ecuador, the constitution now declares that nature “has the right to exist, persist, maintain and regenerate its vital cycles.” In New Zealand, officials declared in March that a river used by the Maori tribe of Whanganui in the North Island to be a legal person that can sue if it is harmed.
CELDF assisted with the drafting of the change to Ecuador’s constitution. And the group also served as a legal adviser to Flores-Williams’ lawsuit on behalf of the Colorado River. Upon filing the lawsuit, Flores-Williams knew that powerful corporate interests in Colorado would lobby the state to bring the hammer down on him. “You’re rattling one heck of a cage. Because if this were to open up… all of a sudden corporations are put in check,” Flores-Williams said in a radio interview last year. If nature were to have standing in court by seeking redress for the harms to ecosystems, all of a sudden exploitation of the natural world for profit would not be done with such impunity, he explained.
In November, the Colorado attorney general’s office warned Flores-Williams that he could face sanctions for “knowingly presenting false or unwarranted claims to the court.” Flores-Williams fired back in late November, claiming in a letter to the attorney general that the threat of sanctions was “a legally baseless attempt to harass and intimidate a civil rights attorney in good standing who has dedicated his career to protecting the powerless from the powerful.”
Heading into the legal battle, Flores-Williams predicted industry and state officials would place him in their cross-hairs. “They will come hard. They will seek attorneys fees. They will try to seek sanctions. They’ll try to probably put some focus on yours truly,” he said in the radio interview, referring to his history of taking on powerful interests in government and the private sector. “They tend to be fairly dirty in the way that they work.”
The state alleged Flores-Williams failed to conduct a reasonable inquiry into the law and facts prior to filing his complaint and that he also failed to address “numerous other deficiencies” that the state highlighted in its motion to dismiss. The attorney general’s office warned Flores-Williams that if he chose not to voluntarily withdraw the lawsuit by November 30, he would face sanctions.
In early December, Flores-Williams concluded the state attorney general’s office — run by Attorney General Cynthia Coffman (R) — could destroy him and his law firm with financial penalties and disbarment if he continued to pursue the “rights of nature” lawsuit. He ended up filing a motion in federal court in Denver requesting that his lawsuit on behalf of the Colorado be dismissed.
“A great victory here would have been some rights conferred on the Colorado River, but we’re not there yet. So, that’s a loss. That said, we have introduced this important legal doctrine into the American consciousness, which is a victory,” Flores-Williams said in a statement.
The sanctions movement against environmental attorneys is occurring at the same time that companies are filing seemingly frivolous lawsuits of their own against groups for protesting infrastructure projects. The company behind the Dakota Access Pipeline, for example, filed a complaint last August, accusing protesters of engaging in a criminal network of fraud and misinformation.
“These corporations’ real goal is to shut down activism that defends the environment and challenges their agenda,” Ryan Hartman, editor of Earth First! Journal, said in response to receiving a lawsuit from Energy Transfer Partners, the developer of Dakota Access and several other pipeline projects across the nation.
Linzey worries about whether he will need to shut down his nonprofit law firm if the courts continue to align with industry. “It’s serious business not to pay a court-ordered sanctions award. It means some soul-searching here in deciding how to handle it,” he said.
Despite its own financial concerns, Grant Township, with a population of only 700, is standing behind Linzey and the town’s other lawyers. In a January 12 statement, the township’s board supervisors wrote: “Judge Baxter’s ruling is astonishing, but not surprising. Our township has been sold out and ignored by every level of government to date. We’ve received no relief from state or federal legislators, the courts, and even our own Pennsylvania Department of Environmental Protection has sued us as we’ve tried to protect our environment.”
Last spring, Pennsylvania’s environmental regulators issued a permit for the injection well in Grant Township. At the same time, the state Department of Environmental Protection filed a lawsuit against the town, hoping the court would rule on what takes precedence — state law, or the township’s home rule charters, which explicitly ban injection wells. The department claimed the charter interferes with state oil and gas policies, and thus should be invalidated.
Grant Township has made public statements about the possibility of going bankrupt if it does not back down. “In other words, they are willing to go into bankruptcy in this case because they feel it is so important. It would be the first municipal bankruptcy triggered by an oil and gas corporation attempting to extract damages from a township that doesn’t have the money,” Linzey said.
An increasing number of communities and groups are coming to the realization that the existing tools for fight polluting industries and climate change aren’t working. “That’s painfully obvious. The natural environment is increasingly degraded and the quality of life and local control are almost gone completely,” he said. “Anybody who is paying attention should understand that there should be another system of law that emerges. That system of law is slowly emerging. It’s communities saying, ‘We have more rights than the corporations doing business here.’”
Despite facing sanctions in Pennsylvania, Linzey said he is heartened by efforts in other states to adopt constitutional amendments that would guarantee people in towns the authority to enact local laws to protect the environment, free from state preemption and corporate interference. Organizers in New Hampshire, Colorado, Oregon, Ohio, and Pennsylvania are working to advance such state constitutional amendments.
“That’s a big step because it would, in effect, authorize municipalities to say ‘no’ to things like frack wells, oil and gas extraction, and frack wastewater injection wells,” Linzey said. “The more these cases are heard in court, the more judges review them, the more of a chance there is that this kind of case law is going to be made.”
Thank you to Mark Hand and ThinkProgress for permission to republish this February 5, 2018 landmark article:
The new legal threat to environmental attorneys: Sanctions from judges and attorneys general
Lawyers face major penalties for defending communities and ecosystems.
For ThinkProgess’ original published article by Mark Hand, click here.