Whatever the origins of the Old English curse, we do seem to be living in interesting times, and challenging ones for those concerned with the preservation of natural resources and the environment. The challenges seem to stem from the intersection of two recent trends: first, the belief—whatever its merits—that environmental regulation, however well intentioned, has gone too far and inhibits necessary economic growth and second, public officials’ apparent attempts to hinder citizen participation in public discussion and decision-making that conflicts with those officials’ policy goals.
Efforts to scale back allegedly excessive environmental regulation since the November 2016 election seem to have involved, so far, at least four prongs: (1) rescinding regulations, (2) cutting the U.S. Environmental Protection Agency’s (EPA’s) budget by as much as 31 percent, (3) failing to fill science posts within the government, and (4) reducing environmental enforcement. Reducing enforcement is frequently cited as likely to result in an increase in citizen suits under various environmental laws. See, e.g., David Friedland, ed., Impacts of the 2016 U.S. Election on Environmental Law, Policy, and Enforcement (Beveridge & Diamond PC, Nov. 16, 2016), www.bdlaw.com/news-1984.html. This avenue for relief could be restricted (either legislatively or through judicial constriction) as part of the larger trend toward increasing intolerance for citizen participation in governmental decision-making. For example, by one count, lawmakers in 20 states have introduced legislation to curb protests.
Another such tactic, SLAPP lawsuits (strategic lawsuits against public participation), has gained much wider notoriety recently, given President Trump’s penchant for using such suits and similar legal tactics. See Susan E. Seager, Donald J. Trump Is a Libel Bully but also a Libel Loser, 32 ABA Communications Lawyer No. 3 (Fall 2016). As the best-known student of SLAPP suits observed:
The apparent goal of SLAPPs is to stop citizens from exercising their political rights or to punish them for having done so. SLAPPs send a clear message: that there is a “price” for speaking out politically. The price is a multimillion-dollar lawsuit and the expenses, lost resources, and emotional stress such litigation brings.
George W. Pring, SLAPPs: Strategic Lawsuits against Public Participation, 7 Pace Envtl. L. Rev. 3, 5–6 (1989).
The inherent abusiveness of SLAPP lawsuits has spawned legislative attempts to limit their availability in at least 33 states, as well as several model statutes and at least two thus far unsuccessful bills at the federal level. See, e.g., Public Participation Project, “State Anti-SLAPP Laws,” www.anti-slapp.org/your-states-free-speech-protection.
State anti-SLAPP legislation seeks to curtail abusive actions by employing one or more of the following remedies: (1) permitting early motions to dismiss an alleged SLAPP lawsuit; (2) requiring expedited resolution of motions to dismiss, along with other remedies, such as a stay of discovery pending a hearing on the motion; (3) requiring SLAPP plaintiffs to demonstrate the merit of complaints; and (4) awarding attorney’s fees or other sanctions for a successful motion to dismiss. See Robert T. Sherwin, Ambiguity in Anti-SLAPP Law and Frivolous Litigation, 40 Colum. J.L. & Arts 431, 437 (2017). The protection afforded by anti-SLAPP statutes varies widely. Tennessee’s statute provides immunity, subject to certain limitations, from civil liability for a person “who in furtherance of such person’s right to free speech or petition . . . communicates information regarding another person . . . to any agency . . . .” Tenn. Code Ann. § 4-21-1003 (2017). California’s broader statute subjects to a special motion to strike a cause of action against a person arising from an “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue,” which includes “any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest . . . .” Cal. Civ. Proc. Code § 425.16(e).
Perhaps a recent example of a citizen suit under the Clean Water Act (CWA) and the SLAPP counterclaim it engendered—between Harpeth Conservancy (f/k/a Harpeth River Watershed Association), a nonprofit in the Nashville area, and the City of Franklin, Tennessee (Franklin)—can help illustrate the challenges posed by this legal tactic and provide commentary on the importance of the rights implicated. See Harpeth River Watershed Ass’n v. City of Franklin, No. 3:14-cv-01743 (M.D. Tenn. 2016).
Harpeth Conservancy’s Citizen Suit Under the CWA
The Harpeth River is among the unique freshwater river systems of the Southeast. These systems contain some of the greatest variety of aquatic life in the world. The 125-mile-long State Scenic Harpeth River and over 1,000 miles of tributaries flow through both rural landscapes and rapidly developing urban and suburban areas of the greater Nashville region, one of the fastest growing regions of the country.
Founded in 1999, Harpeth Conservancy is a 501(c)(3) not-for-profit, science-based conservation organization dedicated to clean water and healthy ecosystems for rivers in Tennessee championed by people who live there.
Franklin is home to the largest single point source on the river, the Franklin sewage treatment plant (STP). Franklin’s own monitoring data show that just downstream from the plant, over the period 2009–2014, the STP contributed 73 percent of the load of total phosphorus in the Harpeth and 50 percent of the river’s load of total nitrogen, when effluent is 15 percent or more of the river’s flow.
The Harpeth River is listed by the state of Tennessee as an impaired (polluted) waterway because it fails to meet the CWA’s water quality standards for fish and aquatic life and recreation during periods of low summer flow. The STP discharge is high in nitrogen and phosphorus, which fuel algal blooms that can cause oxygen levels in the river to drop below state standards. For the section of the Harpeth that is downstream of Franklin’s STP discharge, the CWA’s 303(d) list specifies that “municipal point source discharges” are the “pollution source” for phosphorus and low dissolved oxygen.
Over the years, Harpeth Conservancy attempted to bring to Franklin’s attention issues regarding compliance with its CWA National Pollutant Discharge Elimination System (NPDES) permit for the STP. Franklin rebuffed these attempts, forcing Harpeth Conservancy to send to Franklin a 60-day notice of its intent to sue under the CWA.
Among other reporting and discharge violations detailed in Harpeth Conservancy’s 60-day notice, the Conservancy claimed that Franklin, in some cases over a span of five years, had failed to conduct studies of the river’s water quality as required by its NPDES permit, prevent sewage overflows, develop a Nutrient Management Plan to identify ways to operate the sewer plant to reduce nitrogen and phosphorus loads to the river, and implement a continuous, 24-hour summer water quality monitoring program.
At Franklin’s request, Harpeth Conservancy provided a formal settlement offer, which stated that it was subject to negotiation, in early May 2014. The offer included no monetary penalties or attorney’s fees to be assessed for past permit violations. The city did not respond, so Harpeth Conservancy filed its complaint in August 2014.
Franklin, in its answer to the complaint, put up a very aggressive defense based on SLAPP principles. It sought:
a declaratory judgment, damages, injunctive relief, and any other relief this Court deems appropriate pertaining to [Harpeth Conservancy] having utilized the CWA citizen suit authority in an inappropriate manner to extort and coerce the City of Franklin into agreeing to new permit conditions, waiving its rights to object to [Harpeth Conservancy] positions, and seeking to superimpose additional requirements upon the City not otherwise required by applicable law.
Defendant Answer and Counterclaim at ¶ 7, Harpeth River Watershed Ass’n v. City of Franklin, No. 3:14-cv-01743 (M.D. Tenn. 2016) (No. 20) [hereinafter Counterclaim]. Franklin complained that Harpeth Conservancy believed that a new total maximum daily load (TMDL) was required, that the city should be a member of a technical advisory committee supporting the development of a new TMDL, that a river monitoring program was required, and that Franklin should contribute to its costs. Counterclaim, ¶¶ 44–45, 56, 57. Therefore,
[t]hrough the CWA citizen suit process, [Harpeth Conservancy] has sought to impose conditions upon the City of Franklin that are not required by the City’s current NPDES permit. . . . [Harpeth Conservancy] seeks to impose itself as the regulatory body. Neither the City’s existing NPDES permit issued on or about September 30, 2010, nor the April 23, 2013, draft NPDES permit for the City would elevate [Harpeth Conservancy] to such status.
Counterclaim, ¶¶ 70, 118. Harpeth Conservancy’s written settlement offer demanded by Franklin and its 60-day notice of intent to sue amounted to an attempt to abuse process because they were intended “to coerce and/or extort the City into agreeing to Harpeth Conservancy’s position even though the City was not legally obligated to agree with [Harpeth Conservancy’s] positions.” Counterclaim, ¶¶ 134–138.
Harpeth Conservancy responded with a motion to dismiss based principally on Franklin’s claimed failure to satisfy the elements of an abuse of process claim in Tennessee. Memorandum in Support of Motion to Dismiss Counterclaim Alleging “Abuse of Process” Based on Clean Water Act Citizen Suit at 2, 7, Harpeth River Watershed Ass’n, v. City of Franklin, No. 3:14-cv-01743 (M.D. Tenn. 2016) (No. 28). Harpeth Conservancy noted that it had sent to Franklin a 60-day notice as required to commence a citizen suit under the CWA, that the City itself demanded the written settlement offer Franklin claimed was a portion of the abuse of process, and that Franklin never responded. Id. at 3.
At the hearing on Harpeth Conservancy’s motion to dismiss the counterclaim, the court queried whether even an “outrageous crazy settlement demand” such as demanding a “pack of elephants run down” Nashville’s main street could be an abuse of process. Motion Hearing Transcript (Excerpt) at 48, Harpeth River Watershed Ass’n, v. City of Franklin, No. 3:14-cv-01743 (M.D. Tenn. 2016) (No. 130). The court rejected the City’s arguments and granted the motion to dismiss from the bench, reasoning that the settlement demand did not constitute process, did not rise to the level of abuse, and further questioned whether the City had shown any ulterior motive. Id. at 49–54.
Within a few months of the dismissal of Franklin’s counterclaim, and shortly after the court sustained large portions of Harpeth Conservancy’s complaint against Franklin’s motion to dismiss, the case settled. Memorandum Order, Harpeth River Watershed Ass’n, v. City of Franklin, No. 3:14-cv-01743 (M.D. Tenn. 2016) (No. 119). Franklin agreed to many of Harpeth Conservancy’s demands, including to increase monitoring of the river, participate in the TMDL, and pay its proportionate share of the TMDL’s costs. Settlement Agreement and Release at 1–7, Harpeth River Watershed Ass’n, v. City of Franklin, No. 3:14-cv-01743 (M.D. Tenn. 2016) (No. 126-1).
Although a principal purpose of SLAPP counterclaims such as Franklin’s is to increase the physical, mental, and financial cost of—as well as the time for—challenging the SLAPP plaintiff, the physical and mental toll is perhaps unknowable. It took Harpeth Conservancy nearly a year to secure dismissal of the City’s SLAPP counterclaim. As the court noted, this time could have been spent “figur[ing] out how to get clean water . . . in the Harpeth River.” Transcript, at 53–54. And, less than halfway through the case, Franklin had spent approximately $300,000 in taxpayer money on outside counsel. Jill Cowan, Franklin Pays Firm Nearly $300K in Water Issue Fight, Tennessean, Oct. 11, 2015, at 1W.
Implications of SLAPPs for Citizen Suits
This case study has lessons beyond a small, southern municipality taking on an environmental group. Most SLAPP plaintiffs are private actors seeking to punish or deter citizens who have challenged an economic development proposal or complained about a public official or employee or about an environmental or animal right. Courts have had little trouble in dispensing with SLAPP actions brought by private actors—more than 75 percent of SLAPP defendants prevail, historically. Pring, supra at 8–9, 12.
Should the same results apply when the plaintiff is the government itself? Governments can attempt to stifle dissent in several ways, such as by using SLAPP suits against their citizens (as Franklin did in its counterclaim) or by using anti-SLAPP statutes to shift costs to citizens losing public-interest litigation.
For example, in Ruffino v. Tangipahoa Parish Council, 965 So.2d 414 (La. 2007), a trailer park owner had executed a lease with the federal government to house temporarily New Orleans residents who were displaced by Hurricane Katrina. After apparently negative questioning by the parish council, the court issued a preliminary injunction against the council’s further discussing, interfering with, or obstructing the lease, overruling a motion to strike based on Louisiana’s anti-SLAPP statute. The appellate court, without discussion of governmental speech rights issues, reversed the grant of the injunction and awarded attorney’s fees to the council and its members on the grounds that the council’s discussions were protected by legislative privilege.
Cases such as Ruffino are subject to criticism that (1) their cost-shifting is a disguised penalty for bringing unsuccessful public-interest litigation, (2) governments do not have First Amendment speech rights, (3) when the government defends litigation, it is “simply doing its job,” and (4) governmental use of anti-SLAPP statutes violates the principles behind such statutes: to encourage citizen participation in decision-making. Stephen J. Andre, Anti-SLAPP Confabulation and the Government Speech Doctrine, 44 Golden Gate U.L. Rev. 117, 135, 146–51, 168, 209 (2014).
How do environmental citizen suits fit into this framework? Citizen suits are a common feature of 20 environmental laws. See generally Jeffrey G. Miller, Theme and Variations in Statutory Preclusions against Successive Environmental Enforcement Actions by EPA and Citizens; Part One: Statutory Bars in Citizen Suit Provisions, 28 Harv. Envtl. L. Rev. 402 (2004).
Environmental citizen suits are a recognition of the importance of environmental protections: “Perhaps more than in any other Federal program, the regulation of environmental quality is of fundamental concern to the public. It is appropriate, therefore, that an opportunity be provided for citizen involvement.” Will Reisinger et al., Environmental Enforcement and the Limits of Cooperative Federalism: Will Courts Allow Citizen Suits to Pick up the Slack? 20 Duke Envtl. L. & Pol’y F. 1, 9, 15–16 (2010) (citing remarks of Sen. John Sherman Cooper (R-KY)); see also Carson Hilary Barylak, Reducing Uncertainty in Anti-SLAPP Protection, 71 Ohio St. L.J. 845, 873–76 (2010).
Citizen suits against governments for violations of standards and orders are allowed under section 505(a) of the Clean Water Act, 33 U.S.C. § 1365(a). However, before an action can be commenced, 60 days’ prior written notice must be given to the EPA administrator, the state in which the violation occurs, and the alleged violator. 33 U.S.C. § 1365(b)(1). An action is precluded “if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order . . . .” 33 U.S.C. § 1365(b)(2). Thus, the conduct giving rise to a citizen suit against a government is an alleged violation of law, which is not “governmental speech.” The government, therefore, should not be allowed to stifle protests of that violation.
Where does the right to sue the government originate? The right to petition is protected in the Bill of Rights. The First Amendment provides “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” U.S. Const. amend. I. Although most recent scholarship has been devoted to the religion, speech, and press clauses, the right to petition is much older. See, e.g., Carol Rice Andrews, A Right of Access to Court Under the Petition Clause of the First Amendment: Defining the Right, 60 Ohio State L.J. 557 (1999). The right of English barons to petition the king in limited circumstances is enshrined in the Magna Carta. Over the centuries petitions grew from a method to resolve baronial privileges to a formal and peaceful way to draw the attention of the king and his government to grievances, becoming perhaps the principal way for Parliament to increase its power, with Parliament refusing to grant the king’s requests for revenues until he redressed the grievances contained in received petitions. Gregory A. Mark, The Vestigial Constitution: The History and Significance of the Right to Petition, 66 Fordham L. Rev. 2153, 2165–69 (1998). Petitions became a way for redress of grievances that did not neatly fit into the narrow confine of rights available in common law, including resolving grievances of groups (as opposed to individuals), and eventually evolved into the law of equity and gave rise to courts of chancery. Id. at 2182, 2188; Andrews, supra at 598 n. 139.
This English inheritance was embraced by the American colonists and expanded, becoming a vehicle for then-disenfranchised groups, including in many cases, women, Native Americans, and slaves, to air grievances. Mark, supra at 2177–78, 2182-87. By the eighteenth century, according to one commentator, the “right to petition was . . . exactly what the vote is to the twentieth century . . . the right’s chief function was to protect all other rights.” Mark, supra at 2162 n. 22. By the seventeenth century, a petition came to be defined as a communication that had to (1) be addressed to an authority such as the king, (2) state a grievance, and (3) plead for relief. If properly framed, the petition entitled presenters to immunity from prosecution. Mark, supra at 2195, 2172–74 (discussion of 1688 Trial of the Seven Bishops).
An environmental citizen suit is, thus, a modern incarnation of the right to petition. The entire purpose of citizen suits is to augment the limited capability of the government to enforce environmental laws. Reisinger, supra at 9. The 60-day notice is a “built-in” prayer for government to remedy the alleged violation—its principal purpose is to “prod” or “trigger” governmental enforcement. Miller, supra at 422–23. Indeed, a citizen suit is precluded if the government involved has commenced and is diligently prosecuting an action to secure compliance with the standard, limitation, or order at issue, even if such suits are resolved through allegedly “friendly” settlements with polluters. See, e.g., North Carolina Regulators Shielded Duke’s Coal Ash Pollution, Washington Examiner, www.washingtonexaminer.com/north-carolina-regulators-shielded-dukes-coal-ash-pollution/article/2543717 (Feb. 9, 2014).
If environmental citizen suits are a later-day manifestation of the right to petition, are there any limits on the right? The very antiquity of the right to petition has impacted the development of its modern contours. If the Declaration of Independence, with its petitions to the king, is itself the apogee of the right to petition, the nineteenth-century history of petitions to Congress on the issue of slavery, combined with the rise of mass communications and mass democracy, meant that the law regarding the right to petition has been underdeveloped and only recently re-addressed by the courts. Mark, supra at 2191, 2215–28. The right seems to have crystallized into the Noerr-Pennington doctrine, finding a right to petition the government, including by filing a lawsuit, unless the action is a sham—both objectively and subjectively baseless. Andrews at 559, 580–89 (discussing the “Noerr-Pennington” doctrine resulting from Eastern RR. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961) (immunity from antitrust liability for petitioning government); United Mine Workers v. Pennington, 381 U.S. 657 (1965); and California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972) (right of access to courts, administrative agencies, and “all departments of the Government . . . is part of the right of petition protected by the First Amendment”)).
At least one commentator believes that the modern right to petition, to the extent it has been defined by courts, is perhaps more limited, although perhaps not necessarily correctly: “[T]he right of court access under the Petition Clause means only that an individual or group of persons has a right to file claims that are winning and within the court’s jurisdiction.” Andrews, supra at 625–68. There must be, as noted by Professor Andrews, room for citizens to air “disputed facts” because success in court is not always predictable. Id. at 652.
Similarly, Rule 11 of the Federal Rules of Civil Procedure, which applies to all actions, including those against the government, requires only that persons certify “to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,” that a pleading or other paper filed “is not being presented for any improper purpose, such as to harass” and “the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law . . . .” Fed. R. Civ. P. 11(b) (emphasis added); see also Note, A Petition Clause Analysis of Suits Against the Government: Implications for Rule 11 Sanctions, 106 Harv. L. Rev. 1111, 1127 (1993) (suits against government involve “double petitions” and are entitled to greater protection; to avoid constitutional issues in suits against the government, Rule 11 must be interpreted subjectively so that sanctions attach only when the plaintiff had knowledge of the violation). See also ABA Model Rules of Professional Conduct, Rule 3.1 (good faith arguments for extension, modification, or reversal of existing law are not frivolous).
In view of the role of environmental citizen suits in raising to the government important problems that require attention, SLAPP lawsuits brought by governments against their citizens in such cases should be subject to heightened scrutiny. SLAPP lawsuits by governments, in effect, are messages that, once the most recent election is over, citizens are no longer entitled to manifest their dissent in a historically recognized fashion. Intolerance to citizen lawsuits has been rejected at least since the Colonial era, as the right to petition is at the heart of the concept of modern democracy. See, e.g., Rice, supra, at 611. Therefore, anti-SLAPP statutes granting to governments the ability to dismiss nonsham litigation challenging public policies or awarding governments fees against unsuccessful litigants should be viewed as particularly problematic. See Andre, supra at 154–71.
First Amendment freedoms, including the right to petition, have been described as “delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions.” NAACP v. Button, 371 U.S. 415, 433 (1963). Although the precise scope of the right to petition the government through litigation may be uncertain, the right’s importance has been recognized throughout American history. As every first-year law student reads:
The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) (finding injury, but determining the Supreme Court lacked original jurisdiction under Article III to hear the case). The right to sue is thus the “alternative [to] force.” Chambers v. Baltimore & Ohio R.R. Co., 207 U.S. 142, 148 (1907).
Congress clearly recognized the fundamental importance of clean air and water and that citizens must have a role in prompting governments to address these important issues. Attempts by governmental bodies, such as Franklin, and, indeed, other attempts to curtail and constrain environmental citizen suits—a modern manifestation of the ancient right of petition—should, therefore, be viewed with great suspicion.