Joseph Brecher

Facing Down SLAPP Suits

Recorded: August 14, 2014

What is a SLAPP suit? How does it affect individuals who are trying to participate in the review of a project? Attorney, Joseph Brecher, has helped many activists and regular folks who have been sued because they fought a proposal that they felt was wrong. Joe helps us to better understand this malicious technique.

Joseph J. Brecher has been an environmental lawyer for 44 years. He was the co-author of the first book on environmental law at the dawn of the environmental movement.  He then worked with Indian tribes for the Native american Rights Fund in Boulder Colorado, dealing primarily with issues of air pollution and water use.  For almost 30 years, he was of counsel to the Sierra Club Legal Defense Fund, later Earthjustice, representing the Sierra Club and other environmental groups on over 250 cases dealing with a ir pollution, wild land preservation, endangered species, protection of fisheries, and forest practices.  His most notable achievements include obtaining special protection for northern California salmon streams, requiring the installation of sulfur dioxide scrubbers at coal fired power plants, and protecting the California coast line from unwise development, and preservation of important wilderness areas in Alaska and the southwestern United States.

While the satisfaction from these victories is obvious, and there has certainly been a diminution in pollution levels in this country over the years, the problems of climate change, drought, and overpopulation threaten to dwarf these earlier challenges.  Individual court cases are not going to be effective in dealing with them.  Mr. Brecher believes that a new strategy, involving a fundamental change in peoples’ values, will be necessary to solve these huge problems.  When we learn that love and beauty is more important than acquiring stuff, we’ll be well on the road to securing our future.

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Huey Johnson:   In your law experience, you had something about SLAPP suits, what are SLAPP suits?

Joseph Brecher:   A SLAPP suit is a cause of actual– like malicious prosecution. Say the Sierra Club sues Pacific Lumber for filing an illegal timber harvest plan. Pacific Lumber goes back and sues the malicious, especially if the Sierra Club loses, sues them for malicious prosecution, or defamation, or slander of title or one of these things. In other words, the filing of the suit itself, the interference with their doing what they want with their resources. They claim it’s a torte and they can seek damages. And this is especially terrifying to environmental plaintiff’s who tend to be, you know little folks. A lot of the people who are plaintiffs in lawsuits are neighborhood organizations or occasionally individuals who are doing things, you know because they believe in them, there’s no profit motive for them. So on one side you have people trying to make money, on the other side you have people who are doing it, you know out of their love for nature or you know just out of public spirit. And so it’s a really unequal balance. And then to top it all off, not only do they have to pay for their lawyer for to try to win the lawsuit, but now they’re getting sued for damages where their homes and their savings and so on are up for grabs, and that’s a terrible thing. That’s a SLAPP suite.

Joseph Brecher:   And I wrote a law review article at the dawn of this age about SLAPP suits, they were called intimidation suits in those days, and the result of my article and some other cases was that we now have, in California, very strict anti SLAPP laws whereby if somebody – a resources extractor or a PG & E or somebody files one of these SLAPP suits, you can move to have it dismissed. The defendants can move to have it dismissed and stop the whole proceedings, and get it dismissed without having to do discovery and all the rest of that stuff that costs a fortune.

Huey Johnson:   Yeah.

Joseph Brecher:   And those techniques work pretty well and I’ve actually had quite a few SLAPP suits dismissed over the years. But they’re dangerous, they’re unfair and I’m glad to see that the legislature has understood how evil they are and has given us the tools to fight against them.

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