[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
FREE SPEECH UNDER ATTACK (PART III):
THE LEGAL ASSAULT ON ENVIRONMENTAL
ACTIVISTS AND THE FIRST AMENDMENT
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HEARING
BEFORE THE
SUBCOMMITTEE ON CIVIL RIGHTS AND CIVIL LIBERTIES
OF THE
COMMITTEE ON OVERSIGHT
AND REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTEENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 14, 2022
__________
Serial No. 117-101
__________
Printed for the use of the Committee on Oversight and Reform
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available on: govinfo.gov
oversight.house.gov or
docs.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
48-611 PDF WASHINGTON : 2024
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COMMITTEE ON OVERSIGHT AND REFORM
CAROLYN B. MALONEY, New York, Chairwoman
Eleanor Holmes Norton, District of James Comer, Kentucky, Ranking
Columbia Minority Member
Stephen F. Lynch, Massachusetts Jim Jordan, Ohio
Jim Cooper, Tennessee Virginia Foxx, North Carolina
Gerald E. Connolly, Virginia Jody B. Hice, Georgia
Raja Krishnamoorthi, Illinois Glenn Grothman, Wisconsin
Jamie Raskin, Maryland Michael Cloud, Texas
Ro Khanna, California Bob Gibbs, Ohio
Kweisi Mfume, Maryland Clay Higgins, Louisiana
Alexandria Ocasio-Cortez, New York Ralph Norman, South Carolina
Rashida Tlaib, Michigan Pete Sessions, Texas
Katie Porter, California Fred Keller, Pennsylvania
Cori Bush, Missouri Andy Biggs, Arizona
Shontel M. Brown, Ohio Andrew Clyde, Georgia
Danny K. Davis, Illinois Nancy Mace, South Carolina
Debbie Wasserman Schultz, Florida Scott Franklin, Florida
Peter Welch, Vermont Jake LaTurner, Kansas
Henry C. ``Hank'' Johnson, Jr., Pat Fallon, Texas
Georgia Yvette Herrell, New Mexico
John P. Sarbanes, Maryland Byron Donalds, Florida
Jackie Speier, California Mike Flood, Nebraska
Robin L. Kelly, Illinois
Brenda L. Lawrence, Michigan
Mark DeSaulnier, California
Jimmy Gomez, California
Ayanna Pressley, Massachusetts
Russ Anello, Staff Director
Devon Ombres, Subcommittee Staff Director
Amy Stratton, Deputy Chief Clerk
Contact Number: 202-225-5051
Mark Marin, Minority Staff Director
------
Subcommittee on Civil Rights and Civil Liberties
Jamie Raskin, Maryland, Chairman
Kweisi Mfume, Maryland Nancy Mace, South Carolina,
Debbie Wasserman Schultz, Florida Ranking Minority Member
Robin Kelly, Illinois Jim Jordan, Ohio
Ayanna Pressley, Massachusetts Andy Biggs, Arizona
Eleanor Holmes Norton, District of Scott Franklin, Florida
Columbia Byron Donalds, Florida
Alexandria Ocasio-Cortez, New York Clay Higgins, Louisiana
Rashida Tlaib, Michigan
Danny K. Davis, Illinois
C O N T E N T S
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Page
Hearing held on September 14, 2022............................... 1
Witnesses
Prof. Anita Ramasastry, Henry M. Jackson Professor of Law,
University of Washington School of Law
Oral Statement................................................... 6
Deepa Padmanabha, Deputy General Counsel, Greenpeace USA
Oral Statement................................................... 8
Daren Bakst (Minority Witness), Senior Research Fellow,
Environmental Policy and Regulation, The Heritage Foundation
Oral Statement................................................... 10
Elly Page, Senior Legal Advisor, International Center for Not-
for-Profit Law
Oral Statement................................................... 11
Anne White Hat, Sicangu Lakota, L'eau Est La Vie Camp
Oral Statement................................................... 13
Written opening statements and statements for the witnesses are
available on the U.S. House of Representatives Document
Repository at: docs.house.gov.
Index of Documents
----------
* Axios article; submitted by Rep. Mace.
* Washington Post article; submitted by Rep. Mace.
* CNN article; submitted by Rep. Mace.
* Desert News article; submitted by Rep. Mace.
* University of Pennsylvania Study; submitted by Rep. Kelly.
* Business Insider article; submitted by Rep. Raskin.
* Article on California Renewable Energy; submitted by Rep.
Raskin.
* Washington Times article; submitted by Rep. Mace.
Documents are available at: docs.house.gov.
FREE SPEECH UNDER ATTACK (PART III): THE LEGAL ASSAULT ON ENVIRONMENTAL
ACTIVISTS AND THE FIRST AMENDMENT
----------
Wednesday, September 14, 2022
House of Representatives
Committee on Oversight and Reform
Subcommittee on Civil Rights and Civil Liberties
Washington, DC.
The subcommittee met, pursuant to notice, at 10:07 a.m., in
room 2154, Rayburn House Office Building, and via Zoom; Hon.
Jamie Raskin (chairman of the subcommittee) presiding.
Present: Representatives Raskin, Wasserman Schultz, Kelly,
Pressley, Norton, Mace, Higgins, Sessions, Biggs, and Donalds.
Mr. Raskin. Good morning. The committee will come to order.
Without objection, the chair is authorized to declare
recess of the committee at any point.
Without objection, I will now recognize myself for an
opening statement.
Thank you to our witnesses for coming and participate in
this important hearing. It is our third addressing ongoing
attacks on freedom of speech in America. Our first two focused
on the assault on freedom of speech on campus, in schools, K
through 12, as well as in colleges. We examined a nationwide
push to ban books deemed politically or ideologically incorrect
and censor the expression of students, teachers, and families
in the classroom, a trend which, unfortunately, shows no signs
of abating as we begin the new school year.
Today, we turn our attention to the multi-pronged effort by
the fossil fuel industry to attack its opponents and silence
environmental activists through the strategic deployment of
civil litigation, specifically, so-called SLAPP suits,
strategic litigation against public participation. SLAPP suits
come in many forms: civil suits alleging defamation, libel,
slander, tortious interference with contract, and even
allegations that individuals or groups are engaged in a corrupt
racketeering enterprise under RICO. For example, Energy
Transfer Partners, the company that is building the Dakota
Access Pipeline and which made $66 billion in revenues in 2021,
alleged that environmental nonprofits and other activists were
engaged in criminal racketeering violations against the
company. Its claim was the defendants' First Amendment
protected activities, such as organizing, talking to neighbors,
communicating with people online, sharing information, and
protesting against pipeline construction, constituted
predicated acts sufficient to trigger RICO Act liability and
cause the award of millions of dollars in damages.
After several years and millions of dollars spent in
litigation by the defendants, the case was simply thrown out of
Federal Court as meritless. But great damage was done in the
meantime to the groups and individuals sued to the staggering
time and financial, and emotional, and political costs of
having to defend against the meritless, but overwhelmingly
difficult lawsuit. To make matters worse, after its case was
thrown out of Federal Court, Energy Transfer simply re-filed
the same claims in state court, creating essentially another
RICO case that is still ongoing today.
Similarly, Exxon invoked to really use Texas law to try to
depose city officials from California in an apparent effort to
set up another SLAPP RICO case after several municipalities
sued for damages related to the rising sea levels. Again, after
several years of litigation, the case was rejected by the Texas
Supreme Court for lack of personal subject matter jurisdiction.
But in the meantime, the damage was done with the strategic
efforts to discourage and to punish citizens just for
exercising their First Amendment rights.
Wealthy and powerful corporate entities are dragging
citizens and public interest opponents through meritless, but
protracted and extremely costly litigation to expose anyone who
dares to stand up to them to financial and personal ruin. In
its work to silence its critics, the fossil fuel industry is
also pushing for the passage of anti-protest laws dressed up as
critical infrastructure protection statutes, and we are going
to hear about these.
The first of these laws was passed in Oklahoma in 2017,
with the explicit purpose of punishing pipeline protesters.
Although the state already had criminal penalties for trespass,
vandalism, destruction of property, and tampering, the new law
created draconian penalties for the exact same crimes in the
vicinity of critical infrastructure, such as terms of up to 10
years in prison for vandalism or defacing property. Under that
law, individuals and groups could be fined or sued for tens of
thousands of dollars for involvement even in lawful activities,
like letting a critical infrastructure protestor stay in your
home or camp on your property. Since that time, 16 states have
followed with substantially similar or identical statutes,
which dramatically increase civil and criminal penalties for
what would otherwise be misdemeanor, civil disobedience
offenses, like disorderly conduct or clearly First Amendment
protected activity, like rallying and chanting, and taking a
position on a public policy question.
Anne White Hat, an indigenous water protector, who we are
going to have the benefit of hearing from today, was subjected
to one of these critical infrastructure laws. In Louisiana,
where she was apprehended by law enforcement officers who were
moonlighting on the fossil fuel industry's payroll as private
officers, she faced up to five years of hard labor for the
crime of trespass. This is despite having been permitted to be
on the land that she was removed from by the landowners.
It is crucial that Congress protect the rights of American
citizens and civic groups to engage in lawful political protest
from whatever political perspective without being subjected to
ruinously expensive and meritless retaliatory litigation.
Presently, 30 states have, in a bipartisan manner, adopted
anti-SLAPP laws to protect citizens from baseless lawsuits.
However, 18 states don't have these laws in place, and there
has never been a Federal anti-SLAPP law. In the coming days, I
hope to introduce a strong Federal anti-SLAPP corollary, and I
hope my friend, Ms. Mace, and friends on both sides of the
aisle will join me in our efforts to end the chilling and
punitive practice of stifling and discouraging civic action by
the people of the United States. I look forward to hearing from
our witnesses today.
And with that, I am happy now to recognize the very
distinguished ranking member, Ms. Mace, for her opening
statement.
Ms. Mace. Thank you, Mr. Chairman, and I want to thank all
the witnesses for being here this morning today with us.
South Carolina's 1st congressional District is the district
that I represent, and we are on the front lines of American
scientific, technological, and even environmental innovation.
In fact, tens of thousands of people who work in these sectors
call South Carolina's 1st congressional District home, and we
are very proud of that. These jobs require a high degree of
expertise and training with an eye for ensuring tomorrow's
America is more advanced, more prosperous, more safe, and, in
fact, more environmentally friendly and more green.
The beautiful coastal district that I am honored to
represent faces unique environmental challenges that I have
tackled since the first day I ever took office, as an example
of this, signing on, as an original co-sponsor with my fellow
Republican from Florida, H.R. 4696, the American Shores
Protection Act, which would codify the former President's
executive order to extend a moratorium on oil and gas drilling
off the coast of South Carolina, Georgia, and Florida. I am
also proud to have 100 percent rating with the Conservation
Voters of South Carolina. I am often sometimes the lone
Republican to vote on environmental measures when we are on the
floor of the House. And I maintain this perfect rating and
score not by trumpeting alarmist environmental propaganda, but
by advancing sensible, practical, logical solutions to face
South Carolina's challenges.
I want to make myself clear: the low country depends on the
preservation of our region's environment, both for our
prosperity and our region's wellbeing. Billions of dollars we
depend on in our economy because of the tourism that we have.
We have clean water, clean beaches, clean air, and sometimes we
like to say our beaches are paved with gold, they are so
beautiful. Left wing, environmentalists, however, far too often
try to shut down American industry without offering reasonable
replacements. With the state of energy prices in the U.S.
today, it is not time for policies that will make energy more
expensive and less reliable, but we got to work together on our
future. And our reliance on oil and gas to fuel our lives, it
is not going away tomorrow, nor should it. We have time to
transition to greener, more robust energy policies.
We must maintain robust domestic energy policies to allow
ourselves and our allies to be energy independent. While we tap
into billions of barrels of oil and natural gas here at home,
we need to develop alternatives like nuclear, wind, solar, and
geothermal. In fact, earlier this year Representative Ro Khanna
and I of California, when we did a bill to ban Russian oil and
gas imports, we were looking for the government to study
alternative forms of energy and look at the benefits of using
those in the future. The uniqueness of that bill, we were very
proud to work on.
Multiple Biden Administrations, however, have called for
censoring de-platforming of individuals who say things that
they disagree with. They call anything disagreement,
disinformation, and so I see this issue of censorship actually
being two-sided. I think both sides have done some things that
are wrong, inherently wrong, inherently violate civil rights,
inherently violate the Constitution. But while we are having
this hearing today, I don't know why we are talking about, you
know, just attacks on the left, but attacks have happened by
this Administration. In fact, Gina McCarthy, the White House
climate advisor, said during an interview that Big Tech
companies should censor information she disagrees with about
the environment and climate change, saying, ``Tech companies
have to stop allowing specific individuals over and over again
from spreading disinformation. We need the tech companies to
really jump in here.''
Jen Psaki, former White House Press Secretary called on Big
Tech to do more to censor the Joe Rogan podcast, for example,
for having interviewed people with dissenting views on the
Administration's COVID response. After Spotify put a disclaimer
on the podcast for listeners who chose to stream it, she said
their actions didn't go far enough, saying, ``So this
disclaimer, it is a positive step, but we want every platform
to continue doing more to call out misinformation and
disinformation while also uplifting accurate information.'' Of
course, the implication is that the Biden Administration
dictates truth, while also dissenting view is labeled
disinformation.
Mark Zuckerberg recently acknowledged during an interview
on the Joe Rogan podcast that Facebook reduced distribution on
its platform of a New York Post article, breaking the news in
October 2020 about Hunter Biden's abandoned laptop. They did
this after a general request from the FBI. Zuckerberg stated,
``We just kind of thought, hey, look, if the FBI, which I still
view as legitimate institution in this country, is very
professional law enforcement, if they came to us and tell us
that we need to be on guard about something, I am going to take
that seriously.''
Emails obtained from the Federal Government through
litigation earlier this month show extensive coordination
between 45 Biden Administration officials and social media
company employees to censor content related to COVID-19. So why
aren't we looking into government-sanctioned threats against
free speech? Calls to sensor or de-platform certain people the
Administration disagrees with politically or even entire news
stories that could be harmful to a political candidate are
inappropriate and foster a culture that is hostile to our
fundamental freedom of speech.
And it is not one side or the other. Oftentimes, I think it
can be both. Direct collusion by the government to silence
opposition is even more troubling. We should also be talking
about the Administration's decision to resume the undemocratic
practice of sue and settle at the EPA, which allows special
interest groups to make rules through lawsuits instead of the
rulemaking process. This prevents the voices of Americans from
being heard by removing them from rulemaking process while
allowing environmental groups to have more say in policy then
the American public, and don't get me started on the racket of
lawsuits by environmental groups here today.
While the Biden Administration has been attacking free
speech, I have also been working on bipartisan solutions, the
issues facing not only my state, but our country. This is why I
work across the aisle to promote sensible energy policy. We can
only solve the hardest problems in our country with bipartisan
solutions, and only then will we accomplish the demands of the
American people.
I want to thank the chairman and the witnesses for their
participation today, and I did want to ask unanimous consent,
Mr. Chairman, to enter the following articles into the record.
Mr. Raskin. Without objection.
Ms. Mace. Thank you. An Axios article detailing how Gina
McCarthy called on Big Tech to crack down on climate change
misinformation; an article from The Washington Post detailing
how then White House Press Secretary Jen Psaki called for
Spotify to do more than add a disclaimer to Joe Rogan's
podcast; an article from CNN detailing how Mark Zuckerberg
revealed Facebook was acting on a general FBI warning when it
decreased distribution of a New York Post story on the infamous
laptop; an article from Deseret News,detailing how dozens of
Biden Administration officials worked with social media
companies to censor dissenting COVID-19 opinions. Thank you,
and I yield back.
Mr. Raskin. All right. Without objection, they will be
entered in the record. We look forward to reading those, and
thank you for your opening statement, Ms. Mace.
Mr. Raskin. Now I have the privilege to introduce our
witnesses today. First, we have Professor Anita Ramasastry, who
is the Henry Jackson Professor of Law at the University of
Washington School of Law. And then we will hear from Deepa
Padmanabha, who is the deputy general counsel for Greenpeace
USA and a constituent of mine, I understand. Then we will hear
from Daren Bakst, a senior research fellow in Environmental
Policy and Regulation at the Center for Energy Climate
Environment, the Heritage Foundation. Then we will hear from
Elly Page, a senior legal advisor at the International Center
for Not-for-Profit Law. And last, we will hear from Anne White
Hat, a member of the Sicangu Lakota Nation from L'eau Est La
Vie Camp.
The witnesses will be unmuted so we can swear them in. If
everybody would please stand and raise your right hands.
Do you swear or affirm that the testimony you are about to
give is the truth, the whole truth, and nothing but the truth,
so help you God?
[A chorus of ayes.]
Mr. Raskin. All right. Let the record reflect that all the
witnesses have said yes, and with that, we will go ahead, and
your written statements will be made part of the record. And
with that, Professor Ramasastry, you are first. You are now
recognized for your testimony.
STATEMENT OF ANITA RAMASASTRY, HENRY M. JACKSON PROFESSOR OF
LAW, THE UNIVERSITY OF WASHINGTON SCHOOL OF LAW
Ms. Ramasastry. Thank you. Chairman Raskin, Ranking Member
Mace, members of the committee, thank you for the invitation to
participate in this important hearing this morning. My name
Anita Ramasastry. I am the Henry M. Jackson Professor of Law at
the University of Washington School of Law in Seattle, and from
2017 to 2019, I served as president of the Uniform Law
Commission, which is an unpaid role. The Uniform Law
Commission, established in 1892, provide states with
nonpartisan, well-conceived, and well-drafted legislation that
brings clarity and stability to critical areas of state
statutory law. And I should say it is a membership organization
of all the 50 states, the District of Columbia, and Puerto
Rico, and the Virgin Islands. From 2016 to 2022, I also served
as an expert appointed by the U.N. Human Rights Council to work
with governments, business, and civil society to address issues
relating to corporations and human rights abuses.
The views I expressed in this testimony are my own and
should not be construed as representing any official position
of the organizations I mentioned above.
I will make three key points today and will be pleased to
answer questions from the committee. The first one is that
there is indeed a growing trend of SLAPP suits as a means to
silent dissent, not only in the United States, but globally.
Across the globe, human rights defenders who speak out about
issues of public concern face a range of attacks because they
raise concerns about human rights, risks, and harms associated
with economic and environmental activity. SLAPP suits, which
are criminal or civil lawsuits brought or initiated by business
entities to intimidate critics, are one type of attack. These
lawsuits can drain the resources of community members,
environmental advocates, and journalists who speak out in
support of human rights and the environment. The reason is an
escalation globally and in the U.S. in SLAPP litigation as a
tool to close civic space. The fossil fuel sector is one case
in point.
The Business and Human Rights Resource Center, a respected
documentation center, notes that between 2015 and 2021, it
identified 355 cases that bear the hallmarks of SLAPP suits
brought or initiated by business actors against individuals and
groups relating to their defense of human rights with the
environment. These suits were analyzed against a larger
backdrop of more than 3,100 reported attacks on human rights
defenders globally. So again, I think it is the numbers and the
volume that we should be concerned about. There also seems to
be a rising volume of legal actions by the energy sector, in
particular, against civil society groups.
The Business and Human Rights Resource Center again, which
tracks these SLAPP actions found that 12 carbon majors brought
at least 24 lawsuits against 71 environmental human rights
defenders between 2015 and 2018, seeking a total of $904
million in damages. Just this week, Birthright International
released a report in which it identified 152 cases over the
past 10 years where the fossil fuel industry has used SLAPP
suits and what it describes as other judicial harassment
tactics and attempts to silence or punish its critics in the
United States.
Now, I will note briefly that many of the oil and gas
companies or fossil fuel companies that we are focusing on
today have made strong visible public human rights commitments.
Those commitments include adherence to international frameworks
of guidance that call upon companies, and they have made
commitments to respect the rights of civil society to consult
and to engage with them, and to allow them to peacefully
assemble and express their views. So what we are seeing in the
trend in terms of SLAPP litigation is inconsistent with those
public commitments that these companies have made.
My second point is that SLAPP actions do chill free speech
and assembly, that there is a larger cost, not only for those
organizations that are sued, but for access to information by
the public more broadly. So why should we be concerned about
these numbers? The reason is that SLAPPs can impose devastating
consequences on those who are sued, draining them financially
and emotionally, and discouraging them from exercising their
right to free speech. Civil society groups that face these
suits may opt to end their advocacy rather than being
encumbered with protracted litigation and often end up settling
actually in ways that will restrict through settlement the
right to free speech.
Now, SLAPPs are a threat to public participation,
democracy, and the rule of law, and a direct attack on rights,
such as the right to freedom of expression and assembly. As an
expert who has worked with the U.N. observing the impacts of
these proceedings on communities and individual human rights
defenders and organizations globally and in the U.S., I have
seen the effect of prolonged and protracted litigation that
often involves multiple parties and cast a wide net. So while I
speak about this in the aggregate, you will hear from other
witnesses today about what that toll is actually to individuals
and organizations. But I can attest to that as an expert who
has worked for years in the field with these organizations.
Now, my third point is about the need to restore balance.
And I think this is consistent with what we have heard from
Chairman Raskin and Ranking Member Mace, which is that Congress
should address this trend, and restore balance, and promote
avenues for free expression and assembly. I believe a key
solution here is the adoption of anti-SLAPP laws that allow
courts to review cases at an early stage in the proceedings to
see if they are indeed a public concern and whether the SLAPP
suit itself is frivolous or has merit.
Now, in recent years, as you heard from the chairman,
several states have adopted or amended their anti-SLAPP laws.
As of April 2022, 32 states and the District of Columbia have
anti-SLAPP laws, but, again, 18 do not. The Uniform Law
Commission recently drafted and approved for enactment the
Uniform Public Expression Participation Act. This is a state-
of-the-art anti-SLAPP law for the states and was designed to be
adopted by states, and has already been enacted in states as
diverse as Kentucky and Washington. The act contains a clear
framework for the efficient review and dismissal of SLAPPs. If
a respondent cannot establish a prima facie case, then claims
can be dismissed.
Now, with the state reform is currently underway, there is
another question about whether we need a Federal law, and I
believe the answer is yes and that they can coexist. So the
state statute and the Federal, as a matter of cooperative
federalism, if a corporation sues the civil society
organization in the Federal court for a state law tort, for
example, such as libel, today, it is not clear whether they can
invoke a protection of a state law in Federal court, assuming
one even exists. The Federal law combined with the stronger
state law will also preclude forum shopping.
So in conclusion, I urge Congress and the House of
Representatives, I hope that they will act to restore balance
and to protect and preserve the ability of civil society to
participate in public debates concerning important topics, such
as climate change, the environmental impacts of the fossil fuel
industry, and other related topics without fear of being
dragged into lawsuits that will take a significant toll on
their ability to engage in the civic sphere. Thank you.
Mr. Raskin. Thank you, Professor Ramasastry. And now, Ms.
Padmanabha, you are recognized for your five minutes.
STATEMENT OF DEEPA PADMANABHA, DEPUTY GENERAL COUNSEL,
GREENPEACE USA
Ms. Padmanabha. Chairman Raskin, Ranking Member Mace, and
members of the committee, thank you for the invitation to
participate in today's hearing. My name is Deepa Padmanabha and
I am deputy general counsel for Greenpeace USA, one of the
leading organizations exposing global environmental problems
and promoting solutions that are essential to a green, just,
and peaceful future. I am pleased to have the opportunity to
discuss attacks on free speech in the form of strategic
lawsuits against public participation, or SLAPPs. I walked
through the doors of Greenpeace 11 years ago because I truly
believed in its mission. I never could have imagined that a few
years later, my career would become dedicated to protecting our
fundamental right to free speech.
In May 2016, Greenpeace USA was hit with its first SLAPP
suit filed by Resolute Forest Products, one of Canada's largest
logging companies, alleging damages of $100 million for
publicly challenging the company's forestry practices. And not
long after, in 2017, we were hit with a very similar suit
brought by Energy Transfer, the company behind the Dakota
Access Pipeline, claiming $300 million in damages for allegedly
orchestrating the resistance at Standing Rock. At issue in both
lawsuits was our right to make the public aware of business
practices that we believe are harmful to both our health and
our planet. What made these lawsuits different from previous
SLAPPs was the use of the Racketeer Influenced and Corrupt
Organizations Act, or RICO, a law that was designed to go after
the mafia. These companies were trying to equate advocacy work
to protect our planet with organized crime.
And the similarity between the lawsuits was no coincidence.
It was the same lawyers behind both suits who had indicated
they were shopping this tactic around. It was clear that these
corporations were trying to send a message to small groups,
activists, and anyone and everyone with a voice: watch out, or
you could be next. We knew we had to fight these lawsuits head
on because their implications reached well beyond Greenpeace.
The fundamental right to speak out, organize, resist, and show
solidarity across movements was under threat. Our First
Amendment right to free speech was in jeopardy. Smaller groups
could be sued into silence by the mere filing of a suit of this
magnitude, which is the precise intention behind this tactic.
We quickly realized that we were not alone in this fight.
Groups across issue areas, from the environment, to labor, to
human rights and beyond, came together to send a message that
when you go after one of us, you go after all of us. That was
the birth of Protect the Protest, a coalition that was created
to fight back against the use of SLAPPs. While we successfully
got RICO thrown out of both lawsuits, these corporations
continue to pursue whatever claims they can to consume our
resources and distract us from our work to protect the planet
and its people. They also used other SLAPP tactics, including
third party subpoenas to go after small groups and individuals.
The costs associated with these lawsuits are a drop in the
bucket for these communities, but they are an existential
threat to public watchdogs, who play a critical role in our
society.
So here we are more than six years from when the first
SLAPP was filed against us, still forced to invest time and
resources into these legal battles that otherwise would have
been used to protect communities and the environment from toxic
pollution and the existential threat of climate change. While
our window to fight the climate crisis continues to shrink, we
have to fight these suits head on because the voices of those
who protect our planet in our communities cannot be silenced.
Whether you support or oppose our positions, it is non-
negotiable that Greenpeace and everyone else has a right to
freely discuss, criticize, and/or denounce practices that
impact our health and our livelihoods. That is what the First
Amendment guarantees. SLAPPs put that healthy debate on ice.
Corporations with deep pockets can effectively buy freedom from
criticism by censoring their opponents. Now is a critical
moment for Congress to act and introduce Federal anti-SLAPP
legislation. Thirty-two states and the District of Columbia
have enacted commonsense anti-SLAPP legislation, and all were
introduced in a bipartisan or nonpartisan fashion.
While Federal legislation might not put an end to all
SLAPPs, it would be a significant step toward becoming a Nation
of justice where our fundamental right to speak truth to power
is protected. Thank you.
Mr. Raskin. Thank you so much for your testimony. Now, Mr.
Bakst, you are recognized for your five minutes.
STATEMENT OF DAREN BAKST, SENIOR RESEARCH FELLOW, ENVIRONMENTAL
POLICY AND REGULATION, CENTER FOR ENERGY, CLIMATE AND
ENVIRONMENT, THE HERITAGE FOUNDATION
Mr. Bakst. Chairman Raskin, Ranking Member Mace, and
distinguished members of the subcommittee, thank you for this
opportunity to discuss governmental efforts to chill speech and
limit public participation on climate, energy, and
environmental issues. My name is Daren Bakst, and I am senior
research fellow for environmental policy and regulation at the
Heritage Foundation. The views I express in this testimony are
my own and shouldn't be construed as representing any official
position of the Heritage Foundation.
Open discourse should be the norm in this Nation, yet when
it comes to energy and environmental issues, the chilling of
speech is too often a reality. There are regular ad hominem
attacks, such as the inappropriate label, ``climate deniers,''
for those who do not follow the climate narrative. But I guess
far worse, there are calls to put people in jail for their
views on climate. James Hansen, one of the most well-known
climate activists, argued that CEOs of fossil fuel companies
should be tried for high crimes against humanity and nature.
UNESCO's website is prominently featuring an article arguing
that it is time to prosecute climate deniers. Federal
legislators have urged the Department of Justice to prosecute
climate skeptics using RICO, actually.
There are recent reports of Biden Administration officials
pressuring social media companies to restrict speech, such as
speech connected to climate policy. The government appears to
be doing an end run around the First Amendment by using others
to block speech it could otherwise not directly censor on its
own. This is being done apparently to go after concerns about
misinformation, but misinformation as just another way of
labeling speech that one doesn't like, including subjective
speech, is neither right nor wrong. These actions are
inexcusable.
It is incredible that in United States where freedom of
speech is held so sacred, that defending such a basic right is
even necessary, but that is where we find ourselves right now.
Plus, if we are really concerned about misinformation, it
certainly should not come from government trying to dictate
what citizens can say and not say. It should focus on how the
government itself is disseminating misinformation. Congress has
long recognized the problem of government disseminating
misinformation and created the Information Quality Act to
empower the American people to address these problems.
So now I would like to quickly turn to some regulatory
issues, and, unfortunately, there are two examples, actually, I
think, that show the limiting of public participation and the
different perspectives that people have.
In April 2021, EPA Administrator Michael Regan dismissed
all of the members of the legally required panels of the Clean
Air Scientific Advisory Committee and the EPA Science Advisory
Board. This shocking move, at a minimum, gives the impression
that the administrator wants to hear only from those who will
support the Biden Administration's agenda. Second, the problem
of sue and settle looks to be coming back. The sue and settle
tactic gets around the protections afforded to citizens by
Congress through the Administrative Procedure Act. In general,
environmental groups will sue an environmental agency, like
EPA, to require them to issue a specific rule. There are times
when this can affect the substance of rules. These agreements
are usually made behind closed doors without public input and
often without interveners. The Trump Administration issued a
memo to prevent abuses and help to promote public
participation, but the Biden Administration revoked this memo.
So what should be done? Well, first of all, Congress needs
to ensure that the Federal Government doesn't directly or
indirectly censor Americans for their opinions. Congress should
focus any concerns regarding misinformation where it belongs:
misinformation disseminated by the government. Congress should
require independent reviews of the foundational studies
informing an agency's understanding of major issues, and
Congress should take action to prohibit sue and settle.
There is going to be disagreement on policy objectives, and
even when there is agreement on the objectives, there will be
disagreement on how to achieve the objective. Disagreement
doesn't call for attacking those we disagree with, but instead
engaging in thoughtful and respectful discourse on the issues.
But the government itself is taking actions that are counter to
these basic principles of this country and the Constitution.
Congress should put an end to these actions to help to create
an environment where people are not scared to speak on the
issues, but empowered to voice their concerns, regardless of
their perspectives on these issues. Thank you.
Mr. Raskin. Thank you very much for your testimony, Mr.
Bakst. And now, Ms. Page, you are recognized for your five
minutes.
STATEMENT OF ELLY PAGE, SENIOR LEGAL ADVISOR, THE INTERNATIONAL
CENTER FOR NOT-FOR-PROFIT LAW
Ms. Page. Thank you, Chairman Raskin, and good morning to
you. Thank you, Ranking Member Mace, members of the
subcommittee. My name is Elly Page, and I am a senior legal
advisor with the International Center for Not-for-Profit Law.
This morning, I would like to share with you why we at ICNL and
so many others are concerned that critical infrastructure laws
threaten Americans' First Amendment rights.
In recent years, people across the country have turned out
to protest new pipeline projects: Floridians worried about how
pipelines will affect their drinking water, farmers in Illinois
concerned about their fields, indigenous leaders in Minnesota
wanting to protect tribal lands, fishermen in Louisiana fearing
the loss of their livelihoods. In response, many states have
introduced laws that can criminalize nonviolent protests around
pipelines. As the chairman noted, Oklahoma was the first of
these. In 2017, the state enacted a law creating new felonies
that can cover protesters near ``critical infrastructure.''
Under the law, critical infrastructure is defined to include
pipelines and a variety of other fossil fuel facilities. That
same year, the American Legislative Exchange Council, or ALEC,
which has ties to fossil fuel companies, began circulating a
model bill based on Oklahoma's law. Since then, at least 16
other states have enacted very similar laws.
Supporters of the laws say that they're needed to protect
infrastructure from damage by bad actors, but let's be clear:
these laws are unnecessary. In most, if not all, states,
existing law already criminalizes conduct that can end up
damaging our Nation's infrastructure. When the Governor of
Minnesota vetoed a critical infrastructure bill, he said that
was why: existing state law on trespass and property damage was
deficient. Instead, these new laws, many of which are adopted
with fossil fuel industries' explicit support, can be used to
target pipeline protesters by criminalizing and chilling
nonviolent protest activity.
They do so in three key ways. First, the laws create
extreme penalties. Under Arkansas' critical infrastructure law,
a protester can face six years in prison for peacefully
trespassing onto a pipeline constructionsite. In several
states, those found guilty under critical infrastructure laws
can also be sued by pipeline companies, opening them up to
costly civil lawsuits, like the kind we've heard about this
morning. We at ICNL have heard from folks on the ground who
wants to protest lawfully but are afraid of getting caught up
in these kinds of penalties, who have opted to stay home
instead of speak out.
Second, the laws are overbroad and vague. North Dakota's
law bans inhibiting or impeding pipeline construction. Such
broad language covers constitutionally protected speech. It
could seemingly even cover a lawful protest that is far from
any pipeline but delays pipeline equipment. Louisiana's law,
meanwhile, bans unauthorized entry onto pipelines, but it is
not clear what that means in a state with over 125,000 miles of
pipeline, much of which isn't marked or even visible, so it is
not clear where individuals can and can't be legally present.
And the stakes are high: five years in prison. Third, in many
cases, the laws make protesters and organizers liable for other
people's unlawful conduct. They effectively codify guilt by
association. Under Oklahoma's law, if a church group organizes
a protest and one person at the protest trespasses, the group
could be charged as part of a criminal conspiracy and fined a
million dollars.
Critical infrastructure laws are extreme, overbroad, and
unnecessary. Advocates have successfully challenged parts of
these laws, and courts have found them to be unconstitutional,
but most remain on the books and continue to be used to target
and harass nonviolent protesters, as we will hear from my
fellow witness, Ms. White Hat.
Congress can take action to protect Americans First
Amendment Rights, first, by ensuring that Federal energy
legislation doesn't intentionally strengthen enforcement of
critical infrastructure laws, but instead includes safeguards
for peaceful protest; second, by encouraging the Department of
Justice to file amicus briefs in support of litigation against
critical infrastructure and other anti-protest laws; and third,
by enacting legislation, like a Federal anti-SLAPP Law that can
help protect protesters and protest organizers from being
silenced by industry backed lawsuits.
Thank you, and I would be happy to answer your questions.
Mr. Raskin. Thank you very much, Ms. Page. And now, Ms.
White Hat, you are recognized for your five minutes of
testimony.
STATEMENT OF ANNE WHITE HAT, SICANGU LAKOTA, L'EAU EST LA VIE
CAMP
Ms. White Hat. [Speaking native language]. Relatives, I
greet you today with a heartfelt handshake in my beautiful
Lakota language. I am Sicangu Lakota from Rosebud, South
Dakota, and a resident of the state of Louisiana. I am a
mother, and herbalist, and a water protector. In 2016, I
returned to my ancestral home to join the indigenous-led
resistance to Energy Transfer Partners' plan to build the
Dakota Access Pipeline and assault the waterways and unceded
land of the Lakota Oyate in violation of the 1868 Fort Laramie
Treaty. This pipeline cut across four states and under the
Mississippi River, posing grave threats to the contours of
Mother Earth's real critical infrastructure, including the
waterways of the Mississippi River down to the Gulf Coast of
Mexico.
As a mother, I never intended to get arrested. However, on
September 18, 2018, I was arrested and charged with two felony
counts under new amendments to Louisiana's critical
infrastructure law. I was facing up to 10 years in prison. I
was told that I was being arrested for trespassing two weeks
prior on remote land being worked on by the pipeline company in
the Atchafalaya Basin, despite my having the expressed
permission of the landowners to peacefully protest there.
Louisiana State Court later ruled that it was, in fact, the
pipeline company that was trespassing, yet we were the ones
brutally assaulted and arrested that day, and then the weeks
following by the same uniformed sheriff's deputies working
privately for the pipeline company, and also by pipeline
workers themselves. Over a dozen of us have for several years
had the possibility of lengthy prison sentences hanging over
our heads.
But sharing what happened to me is not the only reason why
I am here today. I want to talk about the coordinated effort of
industry, lawmakers, and law enforcement to isolate, attack,
and silence our movement. This collusion emerges from a
centuries-long history of attacks on my people as we resist the
consolidation of power over this country by a white supremacist
system bent on maintaining exclusive authority over our land. A
key tactic in the coordinated attack on us is known as lawfare:
the weaponizing of the legislative process to attack social
movements.
The first so-called critical infrastructure law emerged in
Oklahoma in 2017 and was picked up by the American Legislative
Exchange Council, or ALEC, a lobbying front group for
corporations that masquerades as a nonprofit. ALEC uses a
nationwide network of industry-backed lawmakers to catapult
critical infrastructure laws into states across the country.
ALEC-affiliated lawmakers have been the sponsors of draft
critical infrastructure laws in all but 5 of the 23 state
legislatures where they have been introduced, many of them as
lead sponsors. Understand that existing Louisiana law already
criminalized the types of activities industry claimed it was
focused on. All this law did was ratchet up formerly
misdemeanor offenses to much more serious criminal felony
charges for First Amendment protest activity.
At their heart, critical infrastructure laws are intended
to prevent people from joining the groundswell of opposition to
fossil fuel extraction because this movement threatens their
profits. The new law only served as a pretext to inflict more
violence against us. Local police working privately for
pipeline companies wasted no time before violently arresting
us, as I briefly described earlier. The coordinated attack on
our movement also included efforts to silence the journalists
who risked their safety and wellbeing to tell the world about
what was happening to us. Karen Savage, an investigative
reporter who is here today, was arrested twice under the felony
trespassing law while documenting illegal construction and the
tactics used against us. She was assaulted by a pipeline worker
while filming the violent arrest of three peaceful water
protectors. When she reported the assault to the St. Martin
Parish Sheriff's Office, it went nowhere. She later learned
that the lieutenant who took her report was among the 58
sheriff deputies moonlighting for the pipeline company, a
practice that left no one to protect the rights of water
protectors and reporters.
In our experience, amendments to this law only serve to
embolden lawlessness amongst oil industry supporters.
Escalating violence has been used for centuries against people
who challenge the concentration and misuse of power. This is
nothing new to us, but what we experienced needs to be
recognized by all as a coordinated assault on a movement.
Indigenous people continue to be the first responders to the
worsening effects of climate crisis. Our actions are part of
our commitment as caretakers of the places we live in.
We are the proud founders and sustainers of an ever-growing
global movement to defend against the irrevocable destruction
of our Mother Earth. It is in that spirit that we call upon all
in this committee to bring your power to bear in support of the
water protectors that are defending what is precious to us all.
Thank you very much for your time.
[Speaking native language].
Mr. Raskin. Thank you very much for your testimony, Ms.
White Hat. And with that, I am going to go to Ms. Kelly to
begin our member questioning of the witnesses.
Ms. Kelly. Thank you, Mr. Chairman. Thank you, Ranking
Member for holding this hearing, and thank you to the
witnesses.
An emerging issue that relates to anti-SLAPP, and anti-
protests laws, and what are known as anti-ESG bills,
increasingly, commercial investors are putting more emphasis on
environmental, social, and governance, or ESG, issues in
selecting stocks while still meeting investment goals. While
ESG has grown in popularity in recent years and has long been
considered by financial institutions in making investment
decisions, ESG has become a new boogeyman and a cudgel to be
used against anyone that opposes the fossil fuel and gun
industries.
So far anti-ESG legislation has been adopted or introduced
in 17 states. Texas passed a bill in 2021 that prohibits any
governmental entity in the state from doing business with any
financial institution that has divested from the oil and gas
industry. This law forced five of the state's largest municipal
bond underwriters out of Texas, so now while Texas can say
their anti-ESG bill is another feather in their anti-woke cap,
it is costing Texas taxpayers hundreds of millions of dollars.
I would like to introduce into the record a University of
Pennsylvania study from earlier this year, which explains that
this new law will cost Texas entities an additional $303 to
$532 million in interest on the first eight months of the law's
enactment.
Mr. Raskin. Without objection.
Ms. Kelly. Sorry. Professor Ramasastry, what can you tell
us about the impetus behind the ESG laws?
Ms. Ramasastry. Great. Thank you so much, Representative
Kelly. Just to be brief, ESG--environmental, social, and
governance factors--have been around for some time since the
70's and 80's. These are just a manner in which companies can
disclose how they are addressing different issues in their
business operations. I am an ``S'' person. I deal with social
rights. So when we think about human trafficking, and forced
labor, and global supply chains, companies disclose kind of
what steps they are taking to address those issues.
So this is nothing new. As you are saying, it has now
become a hot potato issue, but I think there is a sort of
misunderstanding of it. It is basically, and this is outside of
any government requiring this--the companies have been asked
and have been doing so from a long time--what they are doing to
address environmental risks in their business operations,
social risks, like forced labor and human trafficking, and kind
of what they have in terms of governance to prevent things like
corruption in their business.
So it is just a method of disclosure, and it is a method
that companies have been doing to be responsive to a whole
range of different kinds of investors. You have socially
responsible investors who need this data. You have pension
funds that may or may not want it. I mean, again, as we have
seen, even state pension funds want to understand and make
decisions based on this information. So I think the controversy
is just about, well, why is any of this relevant, right? Is it
going to somehow hamper profits? And that is where I think the
``E'' is where there has been a lot of debate. And the question
is, is disclosing information about, for example, carbon
emissions--CO2--or climate mitigation something that is
relevant to in decisionmaking?
Ms. Kelly. Well, let me ask you this.
Ms. Ramasastry. Go ahead. I am sorry.
Ms. Kelly. The financial institutions have been accused of
``discriminating'' against fossil fuel companies by not
investing in them. And then how would you respond to
accusations----
Ms. Ramasastry. Well, I think----
Ms. Kelly [continuing]. being discriminated against.
Ms. Ramasastry. I would respond in the sense that we saw
the response of BlackRock to the Republican attorney general's
letter where they said this is not what we are doing, right? We
are asking for that information as part of a larger set of
indicators that we want to look at when we think about whether
there is going to be a risk to the company, right? So they are
just saying that it is part of a mix of information that will
help make decisions about not only short-term profits, but
long-term profits. So as BlackRock indicated, they are still
investing in the fossil fuel and oil and gas sector, but they
are saying that, you know, over time, they are going to need
that information because there is a question about material
risk. So I think the question there is that it is a piece of
information that will be important.
Ms. Kelly. Are there any First Amendment implications in
creating government mandates as to which publicly traded
companies financial institutions can invest in?
Ms. Ramasastry. I think there are differences of opinion
here. Now, I am not a First Amendment expert, but just in a
nutshell, there is a question about the SEC and whether it can
mandate this disclosure. So some opponents are saying it is
compelled speech, but I think there is a strong and plausible
argument that this is nothing new, right? These disclosures
help consumers understand how their companies are making
decisions environmentally and that these are just about factual
issues, again, that really go to materiality.
Ms. Kelly. Thank you. My time is up, but thank you so much.
I yield back.
Mr. Raskin. Ms. Kelly, the documents you wanted to
introduce will be introduced without any objection, and thank
you for making this really important point about the anti-ESG
laws. And that is something that the subcommittee could
definitely take up because that is another threat to freedom of
speech and expression, and an attempt to interfere with the
company's own policies trying to advocate in this field.
With that, I would like to recognize Mr. Higgins for his
five minutes of questioning. Mr. Higgins, to you.
Mr. Higgins. Thank you, Mr. Chairman. It is striking that
we are having this hearing today. A lot has been said about
Louisiana, so we are going to talk about Louisiana. Generally
speaking, my colleagues in the Democratic Party, it is a broad
generalization admittedly, but I mean, the sky is blue, the
grass is green. The Democrat Party is a party of attorneys, and
the Republican Party is a party of businessmen. This is a
general reference that when you first come into Congress, it is
a pretty clear understanding Democrats love lawsuits. Love
them.
Every energy project in Louisiana has got to set aside a
large percentage of its projected budget to defend against
lawsuits. Every pipeline, every LNG plant, every petrochemical
expansion, every one of them have to set aside money. It is not
all huge companies, you understand? You could put a small hole
in the ground, it could be a $10, $12 million project, a small
company to have to set aside, you know, million, $2 million
because of the toxic legal environment in Louisiana, because
Democrats and climate activists love to sue petrochemical
projects and energy projects, including LNG plants, which
represent the hope of the entire world to reduce emissions. And
nowhere is it done more clean than in the United States of
America.
Why you got 125,000 miles of pipeline in Louisiana, young
lady? Because it is Louisiana. It is where you get your energy
from. It is where you get your petrochemical products from.
Everything you use, everything you are wearing, your clothes,
your shoes, your glasses, your phone, your iPad, the vehicle
you got here in, the plane you flew here on, all of that
requires petrochemical products and energy that is drawn out of
Louisiana. So yes, we have pipelines. It is the safest means by
which to transport energy product. It is safer than rail. It is
safer than vehicle. It is safer than by water. And LNG, for
God's sakes, the entire world has reduced emissions because of
LNG projects out of Louisiana. But a Louisiana energy company
cannot come into Louisiana without getting sued by the left.
You talk about protests and First Amendment rights.
I would like for anyone here who could define for me how it
is OK to vandalize equipment on a legally operating project,
like a pipeline in Louisiana, and say that that is our right to
go and destroy equipment, vandalize equipment. That is not
protest. That is against the law, and you should be arrested
for that. The young lady referred to a lack of action out of
the sheriff's department. I know that sheriff's department. I
know those men. They are squared away. They have to deal with
this stuff all the time, climate activists causing problems.
The workers or the contractors didn't go to your house or
wherever you work and cause issues and interfere, threaten, and
shut down, and getting away, caused safety problems. You went
there and caused those problems.
I am going to ask Ms. Page. We have a witness here, Mr.
Bakst, but I am going to ask you, Ms. Page. I am going to give
you the balance of my time of 30 seconds. Explain to America
why it is OK for climate activists to break the law and
vandalize equipment on a job site. You have the floor, good
lady.
Ms. Page. Thank you. I think we have been focused on the
critical infrastructure law's chilling impact on nonviolent
protests protected by the First Amendment. I would also note,
again, how important is to --
Mr. Higgins. Is vandalizing equipment what you would call a
nonviolent protest? Just tell us.
Ms. Page. I have just emphasized that there are laws in all
states to address that kind of conduct, and --
Mr. Higgins. So is it OK to arrest a climate activist if
they vandalize equipment?
Ms. Page. I think our concern would be, again, that the
draconian --
Mr. Higgins. That is a non-answer. Mr. Chairman, my time
has expired. I yield.
Mr. Raskin. OK. Thank you for your questioning. We go now
to Ms. Norton. You are recognized for your five minutes.
Ms. Norton. Thank you very much, Mr. Chairman. I am amazed
at the kinds of laws we are seeing go into effect. I must tell
you, I have been a First Amendment lawyer. I can't believe
these laws will stand, the 17 states that have anti-protest
laws, which they disguise as critical infrastructure laws, and
they are really so beyond criminalizing violent activity or
other disruptive activity. They criminalize organizing. They
criminalize peaceful protests. I was a First Amendment lawyer
before I came to Congress and went before the Supreme Court,
argued cases before the Supreme Court involving First Amendment
activity. I can't believe these laws will stand.
In Oklahoma, for example, organizations and individuals can
be fined up to $1 million if they support people opposing
pipeline construction as co-conspirators. We have heard from
Ms. White Hat, who was arrested, where it was in Louisiana,
punishable by up to five years, even beyond the property that a
pipeline runs through, even if it is underground. That is why I
think these laws cannot stand. As a former tenured professor of
law focusing on constitutional law, that one is particularly
disturbing to me.
Ms. Page, many of these laws are nearly identical in
nature, and they focus on criminalizing opposition to pipeline
construction. Can you tell us why that is and how the fossil
fuel industry is connected to these laws?
Ms. Page. Thank you, yes. So we know, at least from
expressed statements in a number of cases from the sponsors of
this legislation, that they are introducing these laws because
of protests they have seen, either in their own states or
elsewhere. So the sponsor of the Oklahoma bill for instance,
became the basis of the ALEC Model law. So the protest, like
the one at Standing Rock, was the ``main reason'' behind this
bill. In South Dakota, the Governor, Kristi Noem, explicitly
said that the bills she introduced were designed to cutoff
funding for pipeline protesters. So we have that evidence at
least of, in addition to other information, as Ms. White Hat
provided, about the links between ALEC and fossil fuel
companies into the design behind this legislation.
Ms. Norton. Thank you. Professor Ramasastry, turning to
you. What are the implications of fossil fuel companies
championing anti-First Amendment statutes like these in state
legislatures across the country?
Ms. Ramasastry. Again, thank you, Representative. The
issue, I think, is surprisingly of consistency. What we are
seeing is that these companies have made very strong public
commitments to this concept of respect for human rights,
including engagement and consultation, actually with civil
society groups and advocates as a way of addressing issues. So
this is counter to the commitments they are making, so it is a
surprise to see them engaging in this in the legislatures, and
I hope that this discussion will help, I think, bring that to
light.
And of course companies have different kinds of people. The
sustainability people aren't the government relations people.
But what I would say is, again, in terms of restoring balance,
I have heard that there are laws in the books to deal with
criminal trespass and other issues already, and what we do need
is rebalancing-- that is my plea--by using I think, Federal
anti-SLAPP legislation as an antidote to what we are seeing
now.
Ms. Norton. Ms. Padmanabha, Greenpeace has been
investigating the connection between the fossil fuel industry
and the American Legislative Exchange Council--that is called
ALEC--in advancing anti-protest laws in state legislatures, and
what can you tell us about the connection?
Mr. Raskin. The gentlelady's time has expired, but please,
answer the question.
Ms. Padmanabha. OK. Yes, there is a very deep connection.
As many know, ALEC is a secretive group of corporate lobbyists.
Many of them have very public ties to the fossil fuel industry,
and it is very clear that they have been trying to rewrite
state laws to benefit corporations over people for a number of
time. And so these connections are not hidden connections. They
are very available to the public and very well-known at this
point.
Mr. Raskin. Thank you very much. Thank you, Ms. Norton, for
your five minutes of questioning. I am going to come in just a
second to Mr. Sessions for his five minutes.
First, without objection, we are going to enter into the
record from BusinessInsider.com an article entitled, ``Inside
Louisiana's Horrifying Cancer Alley, an 85-Mile Stretch of
Pollution and Environmental Racism.''
Mr. Raskin. And with that then, Mr. Sessions, you are
recognized for your five minutes of questioning.
Mr. Sessions. Mr. Chairman, thank you very much, and I want
to thank you, I think, for holding this hearing today because I
think public discussion on both sides of this issue and issues
is necessary.
I want to say to the witnesses that are here today, thank
you. Thank you for taking time to be with us. I don't know that
we have gotten anything other than accusations that there are
two sides that are deeply, deeply at war against each other on
the high seas, on land, and all across the globe. It is
governments against people who produce food. It is men and
women who are in a legitimate industry trying to produce
energy, trying to keep us out of the cold, trying to keep us
cool in the summer. It is men and women who are engaged in
trying to use, as our young ranking member said, all of the
above.
And I want to really thank Ms. Mace for her conversation,
because it is hard to find a balance in this. It is hard to
find a balance when two sides with hundreds of people on each
side, perhaps thousands, are actually so committed to their
side that they really cannot see the need for the other. I
think it is important that we note that just as of late, we
have not recognized the real impact of what a one-sided answer
does, whether that be a one-sided answer on what might be
called fossil fuels or all of the above, or a one-sided that
might be on the other side, which may be environmentalism.
We are looking at one of the largest, literally, group of
people in the world called California that is in a mature phase
of over 25 years, perhaps more, of following environmental
activism to do away with the balance, and now they are asking
their citizens to not drive, to not use electricity, to not do
these things. They have placed arbitrarily California and
millions of people in a diminished position: elderly people,
people in hospitals, people who are disabled, people who
actually need balance in their life, and Americanism at its
best.
And so I would say to the gentleman from Maryland, thank
you for bringing this group together. I am not going to lecture
you. That is not what this is about. But I would say that if we
are going to fix the problem, we need both sides to back off
from their position a little bit, to be able to see where the
balance is. But political activism on someone else's pipeline
or someone else's backyard is a very difficult argument, in my
opinion, that several of you hold. You hold that the right of
the public should have a say in these matters. I think you do.
I think you do through elected officials. I think you do
through policy. I think that you do in certain states that
overwhelmingly have adopted those policies. But in states that
actually produce the energy that have the pipelines that beat
the stuffings out of driving trucks or trains up and down our
freeways is a best practice, the best way for us to continue a
process.
The young chairman had a hearing, perhaps last year, where
we talked about pipeline safety. I attended that full hearing.
I respected the words that were said by the people who came
forth, and I engaged the companies in that behavior that became
apparent in that hearing. That is why we have hearings. But
those companies recognize they had a problem, and they did
things about it. And I think that is the activism that we need
that Mr. Raskin showed. I now engage those companies on their
pipeline safety. But I would say to each of you, as witnesses,
thank you for bringing your story to us. But I would ask that
if we are going to heal this country, it is going to take
people that do produce energy. It is going to take people who
have built pipelines. It is going to take consumers that cannot
be put in desperate need for what they are going to get. They
need the balance also.
And so I want to thank not only our ranking member, the
gentlewoman from South Carolina, but I want to thank Mr. Raskin
because when we hear from both sides, then we get a better
understanding about the real policies that need to come. And I
encourage us, and, Mr. Raskin, you know that I deeply believe
in a balance, and that balance means that we can have energy
and afford it.
Last, I have a Down syndrome son. I have a son that cannot
take care of himself, and he is overwhelmed by changes that
take place in our country, but he is an example. And millions
of other disabled intellectual as well as disabled people,
maybe they are veterans, that actually need to make sure that
we have the air conditioning on, energy at a price that is
affordable. And this means that we can throw down our sword
that we have at each other and find that compromise. So please
know, just because you come from a state and hold very strong
views, a state that produces the energy has an obligation to do
that, to take care of all of us.
Mr. Raskin, I want to thank you for the balance that is
exhibited today. Ms. Mace, thank you for your leadership on
this issue. And I thank each of you today. I yield back my
time.
Mr. Raskin. And thank you very much, Mr. Sessions, for
those very thoughtful comments, and I will definitely have some
comments elaborating on some of the things you said when it is
my turn. In the meantime, I am going to recognize the very
distinguished gentlelady from Massachusetts, Ms. Pressley,
whose beautiful district I got to visit during the recess. Ms.
Pressley, you are recognized for five minutes.
Ms. Pressley. Thank you so much, Chairman Raskin. Fossil
fuel companies have abused the legal system to escape
accountability for their role in exacerbating the climate
crisis and endangering frontline communities, which I represent
in the Massachusetts 7th. And today's hearing really does
underscore why we have to put an end to their attacks on
environmental justice organizers and climate activists once and
for all. Strategic lawsuits against public participation, known
as SLAPP suits, they have been used across the country by Big
Oil. For example, when several California cities sued Exxon for
damages related to climate change, Exxon brought a countersuit,
not in Federal court, but in a Texas state court, seeking to
depose California residents for actions taken only in
California. Now, this was complex and dubious lawyering to try
and create a racketeering, or RICO, case against the residents
and municipalities.
Professor Ramasastry, can you tell us about how this case
fits into the way Big Oil companies in slack abuse works?
Ms. Ramasastry. Thank you, Representative Pressley. I think
the larger issue, and what I tried to illustrate without
getting into each individual case, is to say that there is a
larger strategy here, which is not only within the United
States, but global, and I appreciate what we are hearing from
all members here about the issue of balance. What we are seeing
is, and I would say, that one of the issues is that there are
certain parts of the legal profession who have really taken up
this. So it is not just about the companies, but it is also
about the law firm sort of pursuing these zealous tactics where
there is a clear imbalance of power, we have seen. The results
are in these suits that the companies typically don't prevail,
but they prevail in terms of the duration of the suits, the
cost of the suits, and the inequality of resources that
governments and/or civil society groups have, right? So this is
the larger issue that I want to highlight.
And so again, we need to rebalance. These suits really
represent that inequality of resource, and power, and
rebalancing through things like anti-SLAPP legislation. I was
part of the Uniform Law Commission, which is a 50-state
bipartisan organization that is focused on cooperation and
balance. So I come to you here today saying we do need balanced
solutions, but we have a situation now of tremendous asymmetry.
Thank you.
Ms. Pressley. Do you mind, Professor, just expanding upon
exactly what was the ultimate outcome of that litigation, and
how long did it take?
Ms. Ramasastry. I do not know the ultimate outcome of the
Exxon case that you are talking about.
Ms. Pressley. OK.
Ms. Ramasastry. I mean, as I understand it, now it has been
dismissed, and that, on appeal, that dismissal has been upheld,
but the specific grounds I can't speak to.
Ms. Pressley. And I think that took about four years to
litigate. Thank you.
Ms. Ramasastry. And I would just say four, is actually
relatively short compared to some of the other cases that have
been mentioned in today's hearing.
Ms. Pressley. And although that lawsuit did not work, it
did not stop the lawyers at Exxon, you know, at all from
continuing to abuse the legal system. In fact, in my home state
of Massachusetts, our attorney general, Maura Healey, filed an
action against the company seeking damages for sea level rise
related to climate change, and in response, Exxon filed a
special anti-SLAPP lawsuit against the state. So Exxon was
hoping to use the very law that is designed to stop them from
avoiding accountability as a mechanism to avoid accountability.
Professor, are you aware of any instances where anti-SLAPP
would be appropriately used against state enforcement or
regulators?
Ms. Ramasastry. So I don't, and, again, if you look at
different laws that are dealing with sort of anti-SLAPP, they
have different types of application of scope. But again, I
think the question of balance is that, if you see it as a
counter tactic, a court has the ability to make that decision
fairly quickly. So again, these laws can be used by companies
as well as by civil society. But the question is, at a very
early stage, a court has the ability to say this doesn't have
merit and to dismiss it if a company, again, is using this
tactically as opposed to really to deal with an underlying
legal issue.
Ms. Pressley. But it is a consistent tactic sort of in this
playbook, you know, of powerful entities like the fossil fuel
industry. It is a consistent tactic.
Ms. Ramasastry. Consistent. I guess I would say that the
larger issue is that it is part of a larger, consistent
approach to using a legal system and to create a prolonged
resource intensive approach to issue.
Ms. Pressley. Very good. And in fact, the Massachusetts
Supreme Court, after more than three years of litigation,
denied Exxon's motion and is allowing the matter to proceed, so
three years. So these delay tactics and judicial harassment by
Exxon, by Chevron, and others really only serves their greedy
interests and harm our planet. I represent one of the
district's frontline communities that is disproportionately
impacted by some of the highest rates in the country, so, like,
justice delayed is justice denied. We cannot allow Big Oil to
continue use the legal system to escape accountability. It is
really all it comes down to. So thank you, and I yield.
Mr. Raskin. Thank you very much, Ms. Pressley. I now
recognize Mr. Donalds for his five minutes of questioning.
Mr. Donalds. Thank you, Mr. Chairman. Actually, in some
respects, to piggyback off the last comments by the gentlelady
from Massachusetts, I think if we take a look at the legal
system, what we have seen in America is that it is abused to a
large degree. And I think some of the first abuses actually
come from certain attorney generals that want to take energy
companies into court, citing climate change and sea level rise
as the reason for suit, with, you know, respectfully speaking,
you know, to the members who will probably disagree with my
comments, the fact that climate change is not settled science.
But we are not talking about the theories of gravity or
evolution here. We are talking about the amount to which man is
contributing to a change in global temperatures anywhere from 1
to 2 degrees Celsius, and that science, with respecting
everybody in the room, is not clear.
What is clear is that the constant move of lawsuits against
energy companies does derail projects, it does raise the cost
of projects, and those costs are borne by the citizens that we
all serve. Look no further than the people of California right
now, through a myriad of regulatory policy and, I am quite
sure, lawsuits in the past in that state. Now the Governor is
telling the citizens of California they can't cool their home
below 78 degrees in the middle of some of the warmest time in
California, you know, the month of August and September. It is
pretty hot out there.
So the costs are borne by the citizenry, regardless of the
politics. Regardless of where people fall on the science of
anthropologic global warming, manmade climate change, whatever
you want to call it, that science is not clear. I think there
were earlier commentary today talking about ESG. As somebody
who did work in the financial industry, I will tell you
firsthand that ESG policy, those portfolios where ESG is run,
have actually underperformed normal investment portfolios, and
the fees associated with ESG funds are actually higher than a
typical non-ESG fund. That is the data. Those are the facts.
And so there are serious questions where pension plans in the
various states should actually be investing in ESG portfolios
if they are earning a lower return over time for the pensioners
who typically are hardworking people in every state in the
country.
Mr. Bakst, quick question for you. In your interpretation,
what have you seen with these SLAPP lawsuits? Do you believe
that it is really that we have legal games on both sides of the
argument with respect to climate change?
Mr. Bakst. Thank you for the question. There is certainly
going to be legal games for everybody. But it is interesting
that in my testimony I was talking about one of the chilling
effects of states bringing lawsuits against people for their
speech and what their actions are in these companies, yet the
examples being used are those lawsuits I am complaining about.
In fact, when we are talking about the SLAPP, you seem to be
focused on what municipalities are doing, the government is
doing against these fossil fuel companies, and also see what
Massachusetts is doing. So I am not really sure how that is
impacting climate activists unless you want to explain that
this equated municipalities in the states as a climate
activists, so I don't really understand that argument.
One thing I think it is really important to understand is
that there are tradeoffs. If you want to go on electricity and
you want to get rid of cars, and you basically want to import
all your energy like California does, it is going to have
costs. It is going to have cost to Californians, and it is
going to have a disproportionate impact on low-income Americans
and low-income Californians who get hurt the most because they
spent a greater share of their after-tax income, I mean, basic
needs, like running the air conditioning. So there are
tradeoffs and I think, unfortunately, we are ignoring those
tradeoffs and also chilling necessary speech to be able to
address these types of critical points to ensure that we
protect all Americans.
Mr. Donalds. Well, I would argue, and thank you for your
comment, I think that there is a broader concern when it comes
to officials and government, and let's be very clear. I mean,
it is pretty apparent now with everything that has been coming
out in news and in podcasts--shout out to Joe Rogan--that, you
know, we have officials of government who have gone to social
media companies about tamping down on information, about
silencing dissent. We know firsthand, and that is not the topic
of this hearing, Mr. Chairman, but we know firsthand that the
White House was working with social media companies and media
companies to basically silence dissent with respect to the
handling of COVID-19. So if we know that the White House was
clearly engaged in silencing Americans through the back door,
why wouldn't we think that there are other officials in
government, not just here federally, but around the country,
who has silenced dissent on climate change? With that, I yield
back, Mr. Chairman.
Mr. Raskin. Thank you very much, Mr. Donalds. I am now
going to recognize myself for my questioning. I didn't want to
spend any time relitigating the question of whether or not
climate change is real. Let me just say the scientific evidence
for climate change is unequivocal, and it demonstrates that
greenhouse gas emissions have been dramatically warming the
Earth's surface, and this is based on now many decades of
scientific evidence. Also, California hardly needs me to defend
their excellent record in rising to the occasion of dealing
with climate change. But I am submitting an article for the
record, headlined, ``California Breaks Record by Achieving 100
Percent Renewable Energy for the First Time.'' A hundred
percent of the energy in their state portfolios now comes from
renewable energy sources.
Now, so my friend Mr. Sessions had to leave. I want to
thank him for noting that we had hearings about pipeline
safety, but also about the failure of a number of pipeline
companies to honor their contracts and their legal obligations,
to make restitution to landowners, or to restore land that had
been damaged that was taken from private landowners by the
eminent domain process. So we were looking at abuse of eminent
domain to have the government in service of pipeline companies
declare private land, the government's land, and turning it
over to the pipeline companies, and it was supposed to be
restored to the status quo ante and it wasn't. And that is
throughout the Southwest, and the West, and the Midwest where
we have seen that. That is a separate problem, but I thank him
for, you know, gesturing to those hearings.
Now, as to today's matter, I am glad that my friend, Mr.
Higgins, pointed out that there is violence at demonstrations.
There has been violence at some of those demonstrations at the
pipeline, and that is not what I am here to talk about. Anyway,
I don't defend violence in any way at all, just as I am sure
Mr. Higgins would not defend the violence that overran the
Capitol of United States on January 6, 2021. While we defend
the right of people to gather in the seat of government, the
Nation's Capital, to peaceably assemble under the First
Amendment and to non-violently protest and petition for redress
of grievances, we do not support the right of people to come
and beat our police officers over the head with Confederate
battle flags, or Trump flags, or American flags, and I am sure
he would not defend that.
But I just don't want to confuse the issue because what we
are talking about here is First Amendment protected, nonviolent
expression. And obviously every state has laws and there are
Federal laws against violence, which should be enforced against
anyone of any ideological stripe who thinks that the
constitution or his or her own political mission gives them the
right to commit violence against other people.
Now, since we are talking about defending First Amendment
rights, I want to start first with you, Ms. Ramasastry, because
we are talking about some different things. SLAPP suits are
one. And if you could answer as cogently as possible, what are
the most effective forms of anti-SLAPP statutes adopted by the
states, and what are the least effective, and so what should we
be looking at in Congress?
Ms. Ramasastry. I think the key issue here is really about
a review that allows for courts to dismiss cases based on this
idea can a company or whoever it is that is bringing the suit
make a prima facie case that there really is some underlying
substantive harm. This is what is the key. And so, again, if
the underlying action that has been complained about by the
environmental group or whoever is a matter of public concern
and you can define that, and I think in certain ways relating
to public protest or engaging the Government, that is one key
thing. So scope and then the issue of how a court can sort of
quickly determine. What we really need to do is say whoever is
bringing the act or SLAPP suit has to be able to demonstrate
that the case really factually has merit. I mean, that is the
crux of it. That is what is most effective.
Mr. Raskin. In other words, you force them to essentially
prove or at least prefigure the case right up front, rather
than allowing it.
Ms. Ramasastry. Yes, that is right.
Mr. Raskin. Got you.
Ms. Ramasastry. They have to do that right away, and that
allows for that balance.
Mr. Raskin. Thank you very much. Ms. White Hat, let me come
to you. Thank you for your very vivid description of the
critical infrastructure legislation and what that means. How is
critical infrastructure defined in these laws? Do they define,
for example, a state capitol, or school board, or the U.S.
Congress voting as critical infrastructure?
Ms. White Hat. I understand critical infrastructure
includes things like railroad lines, not waterways, not our
water systems. I think it is like electrical lines, those kinds
of things.
Mr. Raskin. Got you. Thank you for that. And finally, I
wanted to come to both Mr. Bakst, if I have got time, and also
to Ms. Padmanabha. Both of you, I think, mentioned the abuse of
the RICO statute, and perhaps Ms. Page, about abuse of the RICO
statute to go after people who are just engaged in civic
organizing. I know a lot of small businesses, even some big
businesses have also complained about the way that RICO is
being used as a way to go after them. Do you all think, as
briefly as possible, that RICO reform is also indicated as a
way to protect free expression? And perhaps we can start with
you, Ms. Padmanabha.
Ms. Padmanabha. Thank you, Chairman Raskin, for your
question. Absolutely. I think that there needs to be some sort
of overhaul of how RICO can be used. I will say that in the
case of Greenpeace, while we thought a lot of groups came
together because they felt that RICO was going to be used as
the new tool against organizing and we fought these suits head
on, we were able to get RICO thrown out of both of our Federal
cases. And we haven't seen any new Federal RICO cases filed
because we actually have good law. That doesn't say that this
tactic won't reappear, but I think that both in the courts and
in the legislature, RICO does need to be addressed.
Mr. Raskin. OK. Mr. Bakst, what do you think about it?
Mr. Bakst. Yes, real briefly. I don't want to claim to be a
RICO expert, but to the extent that the Department of Justice
is using RICO to try to censor protected speech, then, yes,
there needs to be reforms of speech, not necessarily actions.
Mr. Raskin. Thank you, and, Ms. Page?
Ms. Page. I am not well-placed to discuss Federal RICO. We
have been focused on state law, use of state RICO charges and
conspiracy charges against protest-related activities.
Mr. Raskin. OK. My time is overdue. Thank you very much.
Mr. Biggs, you are recognized for your five minutes.
Mr. Biggs. Thank you, Mr. Chairman. Mr. Bakst, you wrote
that when it comes to energy and environmental issues, that
chilling speech is too often the reality. Expand on that,
please.
Mr. Bakst. I mean, even in kind of civil discourse, people
are called climate deniers with a clear kind of connection to
the Holocaust, but I think that is inappropriate. It is
inappropriate to call for people to be put into jail because
they hold views that are different than your own. That seems
to, quite honestly, cross the line. It is inappropriate for the
Federal Government to try to go after companies for their views
or individuals for their views. It has just gotten way out of
hand, and it is hard to have any type of really any discourse
on issues when you are scared to death.
And quite honestly, the other thing I included in the
written testimony is that there are scientists and people who
want to do research on some of these important issues. They
just won't do it because they don't want to commit career
suicide. To me, that hurts everybody, not just those people and
those careers and academics, but policymakers who are trying to
have good information to make informed decisions.
Mr. Biggs. You said Federal legislators have urged the
Department of Justice to prosecute climate skeptics, including
under RICO, and that certain states are getting creative to try
and prosecute conventional fuel companies. Please expand on
that, and if you can, identify any of these Federal legislators
who have urged climate skeptics to be prosecuted under RICO.
Mr. Bakst. Yes, I cited that in the testimony. I believe it
was Senator Whitehouse who was involved in that, and there
might have been some other representatives in the House as
well. The lawsuits that have actually been talked about in this
SLAPP context are some of the lawsuits that I am talking about
as it relates to the states, so, like, Massachusetts going
after fossil fuel companies, or New York, or whatever states or
municipalities, for that matter.
So it is kind of ironic that the things I am complaining
about are actually examples of the strategic lawsuit against
public participation that they are using. To me, when the
government is going after you and you are a private citizen,
using the existing law that is on the books to protect your
right for speech, it just doesn't seem like that is an abuse on
the part of these companies.
Mr. Biggs. So one of the founders of Greenpeace, Dr.
Patrick Moore, in an article where he describes why he left
Greenpeace, noted that his former colleagues ignored science
and supported specifically speaking of the chlorine ban, then
forcing his departure because, despite science concluding that
there were no known health risks and ample benefits from
chlorine in drinking water, Greenpeace and other environmental
groups have continued to oppose the use of chlorine for more
than 20 years. So when we see the chill that becomes almost the
anti-scientific censorship that you are referring to, what does
that do for the overall health of human beings and the
advancement of science to protect the environment and our
communities?
Mr. Bakst. Well, it hurts it, and what is really concerning
is that the administrators of the state and regulators who are
actually making the policies that impact all Americans are
using junk science. And there is no transparency as it relates
the science is being used, so the American people and outside
experts are not able to evaluate the studies that are being
used by Federal officials to make decisions. And instead, what
happens is their efforts to basically reach a policy outcome
and they cherry pick studies ultimately to kind of get to that
policy outcome. That doesn't do anybody a good service,
regardless of what you have on the issue.
Mr. Biggs. So, you know, I can't help as I read this, and I
read your remarks and some of the other remarks, and having
watched this for some time, I can't help but think of Thomas
Kuhn and his discussion of paradigm shifts. With science, the
new theory which will become orthodox is always at some points
heterodox to the rest of the scientific system. And when you
basically attack any scientist, who may be looking at something
or questioning, that is really what science is all about,
whether it is social science or any of the hard sciences. And
the reality is, how does this censorship, this attack on those
who may be heterodox today which actually may become orthodox
tomorrow, how does it prevent advancement in science?
Mr. Bakst. Well, the scientists are never going to
challenge the alleged conventional wisdom. They are scared to
death from doing so. The academic researchers has all kinds of
problems with peer review processes, academics not being able
to replicate studies, people not wanting to kind of reach to do
certain research that will in any way jeopardize their career.
The government relies on junk science, and then it just kind of
continues, becomes the conventional wisdom over and over, and
there is never going to be a challenge of it, and policy that
is informed by that science ultimately continues. And what we
need to have is kind of an ongoing regular system in place so
that we can challenge the major studies and science that is
informing the policy decisions made by agencies so they are
always able to challenge that conventional wisdom.
Mr. Biggs. Mr. Chairman, I just have one last quick
question. I apologize.
Mr. Raskin. Please.
Mr. Biggs. But it gets to actually even the notion of where
Federal grants go to study, what items are going to be studied,
because now I will just summarize them and you can agree or
disagree, because it seems to me that we churn, we keep sending
new grant money to basically reinvent the wheel, not reinvent
the wheel, to actually buttress whatever the foundational
science that is there instead of actually advancing the science
and moving forward, because if you never move to a heterodox
position and allow heterodoxy to actually go forward and
actually challenge the orthodoxy, no matter how outlandish it
may seem, you will never change to another advanced. Would you
just comment on that?
Mr. Bakst. I agree with that point. And I think one of the
things that needs to be evaluated is just take a look at
probably how little science or any research dollars are going
to challenge this kind of conventional wisdom. Very little, if
any.
Mr. Raskin. Thank you very much. The gentleman's time has
expired. Thank you. And, Ms. Wasserman Schultz, you are
recognized for your five minutes of questioning.
Ms. Schultz. Thank you so much, Mr. Chairman, and I
appreciate the opportunity to have this important discussion
because the fossil fuel industry has a long history of
spreading disinformation both about climate change and the
industry's overwhelming culpability related to climate change.
In 2019, this subcommittee held a hearing which addressed
the oil industry's climate change denial campaign that dates
back to the 1970's. While fossil fuel companies have now
largely acknowledged the existence of climate change, their
disinformation tactics have evolved to include greenwashing and
new ways of silencing dissenters. Ms. Padmanabha, can you tell
us briefly about some of the greenwashing tactics that the
fossil fuel industry uses?
Ms. Padmanabha. Sure. So the fossil fuel industry, as we
have discussed, has been attempting to control the narrative,
not only through the silencing of dissent, but also trying to
flip the switch on whose speech is being attacked. And so when
it comes to misleading consumers about the impacts of climate
change and everything that is coming out now about how long
fossil fuel companies have been aware of their business
practices on climate change, there is all of a sudden this
attempt to flip the switch and try to regain control of the
narrative to, for example, in Massachusetts filed as anti-SLAPP
motion, saying we are the victims here. All of these are free
speeches under attack. We see this in different lawsuits that
are being brought about greenwashing, about the misleading of
consumers to ultimately capitalize on profit.
And so what is very different about the fossil fuel
industry and movements in terms of the discussion on free
speech, is that at issue for the fossil fuel companies is there
is an actual profit. There is an actual commercial interest.
The attacks on movements are about building a movement,
educating the public, organizing, and so these are very, very
different issues that I think the fossil fuel companies are
trying to combine.
Ms. Schultz. Thank you. Really, SLAPPs and anti-protest
laws are new forms, as you are mentioning, of dis-and
misinformation that are spun by the fossil fuel industry. By
preventing opposing views from being heard, the fossil fuel
industry is making sure that their narrative dominates above
all others. Again, Ms. Padmanabha, how do SLAPPs affect
environmental activists' willingness to speak out against the
fossil fuel industry?
Ms. Padmanabha. They have a tremendous impact. I mean, you
know, any of us can imagine one day waking up and having a $300
million lawsuit served on us. I mean, what would that do? And
the thing that is so problematic about SLAPPs, it is the mere
filing of the suit that creates the chilling effect, and I
think that that is what we really need to keep in mind, because
in our case, for example, our first SLAPP was filed in 2016. We
are still fighting this. I mean, the costs, even though,
ultimately, whether truth is proven to get to the point of
actually proving the truth that your free speech, is being
attacked. If there is no anti-SLAPP statute, you have to
undergo years and potentially millions of dollars of
litigation, and I think an important point is that most SLAPPs
are not filed against big organizations.
Ms. Schultz. Right.
Ms. Padmanabha. They are filed against individuals, who are
trying to protect their water, protect their land from
developers. That is the history of the SLAPP suit. And so those
stories don't get the attention because the mere filing of the
suit when they think about having to put food on the table, it
silences them. They need to think about the ability to survive.
Ms. Schultz. Thank you. Another predatory tactic is to
deploy so-called critical infrastructure laws to ratchet up
criminal penalties and fines against protesters. So these are
post 9/11 statutes that purport to protect all of our vital
resources, like food, and water, and communications, but these
are often vaguely drafted laws, basically, that shields fossil
fuel companies from environmental protests. For example, in
Texas, prosecutors are trying to charge Greenpeace protesters
with felonies for disrupting a bridge over an oil shipping
channel, but without this critical infrastructure law, these
would just have been misdemeanors.
So Ms. Page, I am going to ask both these questions. Mr.
Chairman, if I could have the indulgence of them both
answering. Ms. Page, how do anti-protest laws disguised as
critical infrastructure laws affect the same willingness to
speak out? And Ms. White Hat, how have these laws in Louisiana
changed your approach to activism?
Ms. Page. Thank you, Representative. Absolutely, these laws
can have a dramatic chilling effect on people's willingness to
speak out: their combination of extreme penalties as you said,
felony penalties in many cases, often with many years of prison
as a potential punishment, and then these vaguely drafted
criminal offenses that can cover constitutionally protected
speech. I mean, I think about the woman, and I believe she was
a member of the White Earth Nation, who was demonstrating
against construction of new pipelines. She was near the
constructionsite, but not purposefully on pipeline property,
and she saw a rare plant that she just read about and walked
over to get a closer look. And it turns out just those few
steps took her over the property line, and now she faces
thousands of dollars in fines and potential jail time.
So you think about what it says to the average citizen who
sees these laws, these draconian penalties, how sweeping the
laws are, and imagine the impact that has when you are thinking
about whether or not to exercise your First Amendment Rights,
knowing that you can be caught up in those kinds of penalties,
even if you are trying to stay within the bounds of the law.
Ms. Schultz. Thank you. Ms. White Hat? Mr. Chairman, if you
wouldn't mind allowing Ms. White Hat.
Mr. Raskin. Please.
Ms. Schultz. Thank you.
Ms. White Hat. Thank you. In terms of how it affected my
activism, it was very stressful to have those charges hanging
over my head for three years, and it counts, like, every day,
wondering if they are going to come knocking on the door to
take me to jail and having to make plans for my children, et
cetera. But in terms of just being out there and going out, it
really has a chilling effect on us as frontline organizers, not
just for us to be able to have to go and do the work that we
do. It also impacts other First Amendment rights, like freedom
of religion. One of the gentlemen involved in our lawsuit was
denied the right to travel, to go to practice his religious
activities. So it is not just that it calls our activism, but
it also hurts other parts of our First Amendment Rights as
well.
Ms. Schultz. Thank you so much, Mr. Chairman for your
indulgence.
Mr. Raskin. And thank you Ms. Wasserman Schultz for your
questioning. I now get to recognize the ranking member, Ms.
Mace, for her questioning.
Ms. Mace. Thank you, Mr. Chairman, and I thank our
witnesses again today for being here, and for your time and
effort to talk about censorship in the First Amendment. I love
the Constitution just as much as our chairman, and one of the
questions I had of all the panelists this morning, the first
and second question, ``yes'' or ``no.''
[Chart]
Ms. Mace. As you can see behind me, there is a group of
demonstrators gathered together in support of climate
initiatives during the People's Climate March rally in D.C.
Starting with the professor who is here this morning, is this
considered protected free speech, yes or no?
Ms. Ramasastry. Oh, first of all, I can't really see the
photo, but, again----
Ms. Mace. It's peaceful protestors at the Climate, yes,
here in D.C.
Ms. Ramasastry. So again, lots of caveats and assumptions.
I would say, again, if people are demonstrating in a way that
is peaceful, peaceful assembly, that should be protected.
Ms. Mace. And, Ms. Padmanabha, ``yes'' or ``no.'' Is this
protected free speech behind me?
Ms. Padmanabha. Yes, it is.
Ms. Mace. And Mr. Bakst?
Mr. Bakst. Yes, looks peaceful.
Ms. Mace. Ms. Page?
Ms. Page. Yes, it appears to be.
Ms. Mace. Ms. White Hat?
Ms. White Hat. It appears peaceful.
[Chart]
Ms. Mace. And then the second one, the example I wanted to
share is an image from the Dakota Access Pipeline
constructionsite of a person who is pouring gasoline on a pile
of tires to block a roadway and prevent law enforcement by
protecting pipeline employees from doing their job on privately
owned property. I would like to start with the professor.
``Yes'' or ``no,'' is this an image of protected free speech?
Ms. Ramasastry. Again, caveats. I am not seeing the full
picture, so I would say based on your description, likely not.
Ms. Mace. And Ms. Padmanabha?
Ms. Padmanabha. I am not here to comment on the actions of
individuals.
Ms. Mace. So you don't know. OK. Mr. Bakst?
Mr. Bakst. No, that is not protected speech.
Ms. Mace. And Ms. Page?
Ms. Page. I don't know without more information. I would
say that if it is violent, unlawful conduct, that is not
protected by the First Amendment.
Ms. Mace. Ms. White Hat?
Ms. White Hat. I decline to answer on the basis of the
First Amendment Right of association for myself and others.
Thank you.
Ms. Mace. So this picture of the Dakota Access protesters,
they set fires, they lobbed Molotov cocktails, they fired shots
to face off with police, and they were trespassing in this
particular example. And, Mr. Chairman, I would like to ask
unanimous consent to enter into the record this article by The
Washington Times about this particular, what some would call
protests, but clearly a violation of constitutional rights.
Mr. Raskin. Without any objection.
Ms. Mace. And then my third question for the panelists,
everybody, and I will start with professor again today here
this morning. Is it just the right trying to silence the speech
of the left, or does the left also try to silence the speech of
the right? Is it just one-sided or is this an issue that can be
seen as two-sided, both sides doing it?
Ms. Ramasastry. Yes, my remarks were about that, right? I
kept speaking about balance and the fact that the new anti-
SLAPP laws we have at the state level, which I helped lead,
were about balance and had tremendous bipartisan support.
Ms. Mace. And do you see it on both sides, Ms. Padmanabha,
where both sides are trying to silence or center the speech of
others?
Ms. Padmanabha. On a theoretical or academic point of view,
I do. But in reality, it is really the deep pockets who are
doing the silencing and those deep pockets tend to fall on the
side of the fossil fuel industry and their allies.
Ms. Mace. And Mr. Bakst?
Mr. Bakst. Look, I think the LNG environmental climate
area, it does tend to be on the left, silencing conservatives
more, but there is no question there. There might be abuse of
existing state statutes, so I want to make some of these one-
sided. But examples I have heard today, especially as it
relates to actions being taken, that don't deserve to be
protected speech are not examples of conservative silencing
speech.
Ms. Mace. And Ms. Page?
Ms. Page. So at least for the critical infrastructure and
other anti-protest laws that I was invited to speak about, I
can say that we have seen them introduced and approved with
very few if any exceptions by conservative lawmakers.
Ms. Mace. Ms. White Hat?
Ms. White Hat. Thank you. In our experience, the critical
infrastructure law amendments that were passed in Louisiana
were directly aimed at silencing our movement.
Ms. Mace. Thank you. And then Mr. Bakst, if I have time one
more minute, a couple of questions? So how does the left
silence opposing views on climate and energy policies that they
do disagree with. My first question.
Mr. Bakst. Yes, I think we have been able to capture a lot
of that just making it, trying to literally make it a crime,
throw people in jail, have to force the government actually
doing that, and that is pretty chilling. Not allowing research
to flow to different perspectives, career scientists or
academics being scared to death to actually even engage in
certain researching and certain speech, I think those are some.
And also, certainly the Biden Administration and these reports
of trying to use social media companies or any third party to
try to act as the agent of the government to censor speech.
That to me is a violation of First Amendment, at least as it is
being reported.
Ms. Mace. We agree. Thank you, Mr. Chairman. I yield back.
Mr. Raskin. All right. Well, thank you very much, Ms. Mace.
I want to thank all of the witnesses for your excellent
testimony today on this really important subject. I want to
thank all the members for their participation.
I also want to request the following documents be
introduced into the record that were offered by Ms. White Hat,
the Third Circuit ruling in Bayou Bridge Pipeline v. 30.00
Acres, excerpts from deputy depositions, transcript of
Louisiana Senate hearings, ALEC attacks report, Louisiana
pipeline map, and six photos of arrests, including violence and
a demonstrator's sign. All of these, without objection will be
entered into the record.
Mr. Raskin. And let's see. Members will have five
legislative days within which to submit any additional written
questions for our five distinguished witnesses today to the
chair, and I will forward them to the witnesses for their
response. And please, witnesses respond as quickly as you are
able so we can complete the record to this hearing.
Mr. Raskin. Again, thank you for your excellent and
instructive testimony that will help us develop some
legislative ideas going forward.
[Whereupon, at 11:52 a.m., the subcommittee was adjourned.]
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