Federal Judge: Environmental group has sued others, therefore it can be sued

Last August, Energy Transfer Partners, the company that built the Dakota Access Pipeline, sued a number of environmental groups, including Greenpeace, BankTrack, and Earth First!, alleging the groups were collectively engaged in racketeering. Here’s a bit of the company’s press release:

This group of co-conspirators (the “Enterprise”) manufactured and disseminated materially false and misleading information about Energy Transfer and the Dakota Access Pipeline (“DAPL”) for the purpose of fraudulently inducing donations, interfering with pipeline construction activities and damaging Energy Transfer’s critical business and financial relationships. The Complaint also alleges that the Enterprise incited, funded, and facilitated crimes and acts of terrorism to further these objectives.

Obviously, public protest is legal and protected in the U.S., but ETP’s lawsuit claimed the protest was a cynical spectacle intended to raise money. It also claimed the illegal action of individuals, such as cutting holes in the pipeline with a blowtorch, were incited by these groups. ETP’s filing said the damage done to the company by this behavior amounted to “no less than hundreds of millions of dollars.”

One of the groups targeted by the suit, Earth First!, is being represented by the Center for Constitutional Rights (CCR), which claims Earth First! is not a legal entity but a movement and therefore cannot be sued. In fact, CCR asked the judge to sanction ETP for bringing the Earth First! Journal, which is supposedly a separate entity, into the lawsuit. Last week a federal judge denied that request and gave the group until this coming Monday to prove it can’t be sued. From the Associated Press.

The Center for Constitutional Rights maintains Earth First is an unstructured social movement or philosophy, similar to Black Lives Matter, and can’t be sued. However, U.S. District Judge Billy Roy Wilson says Earth First has been a listed plaintiff in three federal lawsuits in the 1980s and 1990s, involving a water project in Arizona, a wilderness area in Oregon and a New Mexico canyon important to American Indians.

“If Earth First can sue, it seems to me that it is subject to being sued,” Wilson said in a March 22 order.

Center attorney Pamela Spees did not immediately respond to an Associated Press request for comment Friday…

Spees, who represents the journal, says it and the movement aren’t the same thing. She sought sanctions including attorney fees against ETP for what she asserted was “intentional and reckless disregard of their duties to the court.”

Wilson denied the request. And while he said that he doesn’t think serving the lawsuit on the journal is adequate, “it appears to me, also, that Earth First and/or the journal is dancing around.” He ordered Spees to provide information on who ETP should serve with the lawsuit.

I’m not convinced this lawsuit is going to work out for ETP in the long run, but then I’m not an attorney. But it does seem reasonable to me that a group which engages in legal actions against others shouldn’t be able to duck a lawsuit by claiming it’s some nebulous movement.