Earlier this year, Resolute Forest Products (Resolute) lodged a lawsuit based on the Racketeer Influenced and Corrupt Organizations Act (RICO)—a U.S. law developed to combat the mafia—to sue Greenpeace and Stand.earth, public interest organizations that continue to be critical of Resolute’s practices in the boreal forest. Eighty public interest organizations throughout the United States and Canada have joined together on the pages of the New York Times to condemn the bullying tactics used by the logging company Resolute against critics of its practices in Canada’s boreal forest. This action comes two weeks after the Natural Resources Defense Council (NRDC) called on the U.S. marketplace to urge Resolute to drop its litigation and take steps to protect critical regions of the boreal forest. Using U.S. courts to label environmental advocacy as a criminal enterprise sets a dangerous precedent. Resolute’s lawsuit not only undermines efforts to protect the boreal forest – an important habitat, a critical source of fresh water, and a vital carbon sink - it threatens the free speech rights of public advocacy groups around the world.
Resolute Forest Products is a Montreal-based logging company that produces predominantly pulp and paper products sold on the global market. They are a prolific operator in Canada’s boreal, holding rights to log on more than 50 million acres of public lands in Quebec and Ontario. It is also a company that has become increasingly well-known for using the legal system to try and silence its critics and keep competitors in check. Beginning in 2013, Resolute began to launch a string of lawsuits against organizations, governments, and auditors. Then, in 2016, it took its strategy a bit farther by attempting to characterize Greenpeace, its subsidiaries, Stand, and as-yet-unnamed organizations as a criminal conspiracy as defined by the United States’ Racketeer Influenced and Corrupt Organizations Act (RICO—a law enacted to help the government take down the mob and other organized crime syndicates.
Public interest organizations advocating for environmental protection and media organizations are deeply concerned about Resolute’s actions. As the Reporters Committee for Freedom of the Press and eleven media companies stated in a friend of the court brief in support of Greenpeace and Stand:
“Preserving robust protections for opinion, whether from an advocacy organization or a journalist, is important to give speakers the security they need to contribute to public discourse without fear of liability.” Reporters Committee for Freedom of the Press et. al., Sept. 15, 2016
So what does Resolute’s recent legal history look like? Here’s a quick run-down of their legal strategy to stifle voices expressing concern over the impact of their logging practices in the Canadian boreal:
- Sue Greenpeace. Greenpeace launched a campaign highlighting Resolute’s practices in 2012, calling into question a number of its logging practices and the impacts of those practices and urging the company to address concerns shared by many people across the conservation community. The case is ongoing, but Resolute’s attempts to broaden its scope were recently denied by an Ontario Court, which found, among other things, that the claim that “Greenpeace has a strategy of distorting the truth and ‘sensationalizing’ the evidence in order to appeal to its donor base” was “so devoid of particularity as to be scandalous and vexatious.” That’s an interesting finding, because Resolute’s U.S. RICO case (discussed above and below) takes a similar tack and attempts to make a case for improper conduct by misconstruing legitimate environmental group advocacy work.
- Sue Rainforest Alliance. Following the preparation of a draft audit report regarding its logging practices in northern Ontario, instead of working with the auditor to resolve any disputes concerning the draft, Resolute sought an injunction from the courts that prevented the audit’s public release and kept it under indefinite seal.
- Sue Greenpeace, its affiliates, Stand, and individual employees of these organizations. Despite its 2013 lawsuit against Greenpeace, facts on the ground haven’t changed and criticisms of Resolute and its logging practices have continued to mount. In an attempt to put a damper on the growing criticism and attention, Resolute filed suit in U.S. court, offering up a legal theory under the federal RICO statute.
“As representatives of the news media and distributors of information to the public, [we] are deeply concerned about application of federal RICO claims to speech, especially when such claims are intended to circumvent First Amendment protections.” Reporters Committee for Freedom of the Press et. al., Sept. 15, 2016
The strategy by Resolute here isn’t necessarily about winning, it’s about creating silence. Suits like these have a name and are easily recognized for what they are: “strategic lawsuits against public participation” or “SLAPP suits.” Corporations typically deploy them to silence their critics by forcing the costs of a legal defense onto those critics, a burden that can force smaller organizations to abandon their opposition. They’re so toxic to freedom of speech that there is an ongoing campaign to enact federal legislation to prohibit their use. As Sierra Club and eight other organizations that advocate for the environmental protection and public health noted in a friends of the court brief:
"The use of RICO as a club to silence Greenpeace from using non-violent means to mobilize the public, raise awareness alongside the necessary funds to operate, and seek to bring about change in respect of environmental practices it opposes would chill the exercise of First Amendment rights not only by Greenpeace but by other groups, including Amici. It would endanger the ability of non-profits to operate and set a dangerous precedent." Sierra Club et. al., Sept. 15, 2016
Meanwhile, in previously intact forests on Canada’s public lands, the ecological integrity of the critical boreal forest is being degraded by the building of new roads and the inevitable patchwork clearcutting that follows and is marching ever northward. As this happens, the habitat of the threatened woodland caribou is declining, with some herds now facing localized extinction. Across the boreal, the last refuges for much of the region’s biodiversity are in danger of being lost due to the long-term impacts of logging, mining, and oil and gas development. As a globally important resource for preserving biodiversity, storing fresh water, and mitigating climate change, the health of Canada’s boreal is an issue of pressing public concern. Attempts by Resolute, or any company for that matter, to silence those who question the impact of industrial activity on this fragile resource are dangerous and unproductive.
It is for this reason that public interest organizations throughout North America – including organizations advocating for the environment, organizations advocating for free speech, and organizations advocating for other public concerns – are joining together to condemn Resolute’s behavior and call on the market place to urge the company to respect free speech and support sustainable outcomes in Canada’s critical boreal forest.