The unprecedented US racketeering action bought against Greenpeace Inc by an aggressively aggrieved Canadian timber company passed another milestone recently with the environmental defender arguing that it should not matter whether the claims presented in its anti-logging campaign were facts.
Last year Resolute Forest Products decided to use US laws that were originally crafted to tame the Mafia as a tool to end a reputation-damaging five-year war of words and deeds with Greenpeace Canada.
In May 2016 Resolute, North America’s third biggest paper maker, went to the Southern District of Georgia with claims against Greenpeace and a cohort of its employed activists that included racketeering, defamation, tortious interference, civil law conspiracy and trademark violation.
The company also issued proceedings against Greenpeace in Canada where it is claiming defamation and interference with economic relations.
As we reported last year, Greenpeace has been at war with Resolute since 2012. The organisation markets Resolute as a “Forest Destroyer” and routinely names the Canadian timber cutter as the biggest single threat to the community of larches, spruces and pines that inhabit Canada’s boreal forest.
That Canada’s vast ancient forests are environmentally important, delicate and fully deserving of sensitive and creative stewardship appears to be one of maybe two things that Greenpeace and Resolute appear to find agreement on.
The other is that courtroom success for Resolute could prove as devastating to the broader Greenpeace marketing and revenue model in North American as it would to Greenpeace Canada’s balance sheet.
“Should these types of cases take root, and especially if they are allowed to survive early dispositive motions, the collective burden on advocacy groups and the courts, and the injury to open, public debate, could be extreme,” the latest Greenpeace filing in Georgia announced.
To justify that claim, the Greenpeace filing observed that the Resolute action has been followed by two “copycat” cases that aim, arguably more obviously, to contain debate and punish legitimate expressions of free speech.
A computer engineer named Leonid Goldstein has gone to the Texas courts with RICO (Racketeer Influenced and Corrupt Organisations Act) action seeking unspecified damages against 40 organisations that have actively promoted climate science. And a similarly spurious damages case has been launched in New York against four television network news services, The Washington Post and The New York Times for coverage of the US election that was alleged to be biased in favour of Hillary Clinton.
The strike-out motion filed by Greenpeace at the end of January seeks US First Amendment free speech protection and is constructed around the thesis that this failure of consensus is almost inevitable given Resolute chops trees down in old forests and Greenpeace believes that it should not.
So when Greenpeace advertises Resolute as the “Forest Destroyer”, well, that is just the sort of “heated rhetoric” that is the “coin of the realm” in this sort of conflict. That Resolute has planted more than one billion trees to mitigate its enduring cull of mature trees is a truth inconvenient to what is really just a marketing pitch for the hearts and minds of Canadians.
“First, Greenpeace’s publications are well known for advancing the organisation’s advocacy mission and opinions, not hard news,” the Greenpeace lawyers stated. “Second, the challenged publications were part of a heated public debate, here over RFP’s [Resolute’s] logging practices, where criticism and heated rhetoric are the coin of the realm.”
Citing case law, the Greenpeace pitch includes the claim that “speakers who engage in protected expression on matters of public controversy – like Greenpeace here – often use forceful language to make their point”.
“They do not hew to strict literalisms or scientific precision, but regularly use words ‘in a loose, figurative sense’ to express ‘strong disagreement’.
The dismissal application goes on to note that the claim that Resolute had “destroyed forests” should be received as “describing figurative, rather than literal, destruction”.
“The law has long protected such ‘rhetorical hyperbole’ in speech regarding matters of public importance,” the Greenpeace lawyers argued in support of their opening pitch, which was that the “proper forum for a debate such as this one is the public marketplace of ideas”.
“This is especially true where the issues under discussion involve complex scientific issues better suited for scientists, scholars and concerned citizens. Courts are particularly ill-suited as a forum for adjudicating scientific ‘truth,’ as RFP is asking this court to do here. Courts must thus use special care in examining whether a claimed defamatory statement is ‘provably false’ in the scientific context,” the Greenpeace defenders argued.
Now let me just ponder that one. First, courts have always been called on to sift fact from fiction in drawing decisions from disputed positions. And does this all mean that we are expected, as informed post-Enlightenment citizens of an over-heated world, to accept that the science of climate change is now a fact beyond contest but that the science of Canadian forest management remains a debateable “truth”.
World’s lamest backflip
Victoria’s opposition parties have made another preposterous contribution to the national energy policy by not quite embracing the idea that the science on conventional gas drilling is very much in and then committing themselves to a domestic market reservation policy that was most recently dismissed as an exercise in self-harm by the Australian Competition and Consumer Commission.
Given the background here, we had been left to expect that the Liberal-led Coalition would gently but very certainly step back from its support of Victoria’s unique moratorium on conventional drilling while sticking to its guns on the equally unique “permanent ban” on hydraulic fracturing.
We had heard that federal government ministers from Arthur Sinodinos to Josh Frydenberg and Matt Canavan had been banging away at the Victorian Coalition leadership urging some sort of public retreat from their alignment with the Victorian Labor government’s do-nothing gas policy.
Instead we got a weirdly faceted endorsement of the existing moratorium on the drilling of gas resources that will not require fracking.
For reasons obvious to no one outside of the Victorian Parliament and the intimate sectoral interests that shape their policies, the Coalition has decided, as it did in 2012, that “the energy sector and the government need to undertake significant technical studies and consultation with rural communities about conventional onshore gas”.
And after declaring that progress would require delivery to farmers of “the right to no” to drilling, the opposition revealed that the quid pro quo for the embrace of onshore drilling would be a gas reservation policy that “ensures gas extracted in Victoria is prioritised for Victorian homes and businesses”.
What that might mean is anyone’s guess. But the idea of a Victoria-first market would seem to sit at odds with national market aspirations of the likes of federal Energy and Environment Minister and senior Victorian Liberal Frydenberg. His reforms and ambitions are focused on creating market transparency and removing the bottlenecks that constrain the supply side response that the nation’s peaky gas prices demand. To that end, for example, the minister has worked to create a legal framework for effectively arbitrating on disputes between gas drillers and pipeline operators over infrastructure access and pricing.
Since defining the policy path, Australia’s biggest gas pipeline operator has committed to building one new pipeline, logged environmental approval applications for another and acquired the midstream processing facilities that will speed Cooper Energy’s plans to introduce new offshore gas production in Victoria.
Nothing inspires investment like clarity. And the Victorian opposition has provided the gas drillers with nothing like the clarity needed to ease the supply pressures that have very recently seen the legendarily gassy state paying the nation’s highest gas prices.
DP’s world more than Dubai
Just a wee clarification on Tuesday column on DP World Australia and its new infrastructure levies. We described Australia’s biggest container terminal operator as Dubai-owned. Not so. DP World owns but 25 per cent of the business with the balance being owned by US and Canadian private equity with Corsair Capital holding 50 per cent and Canada’s PSP owning the balance.
As it turns out, DP World Australia boss Paul Scurrah reports to a board that meets four times a year in various places (most recently in Dubai) and that is led by an independent chairman whose name would be familiar to old folk like me: ex Brambles and Coles Myer boss, John Fletcher.