Recently, we talked about the success of global climate-washing lawsuits, but the blade of litigation cuts both ways. Just as there are lawsuits to advance ESG causes, there are those that seek to halt them. A recent trend in anti-ESG is to hit organizations with a Strategic Lawsuit Against Public Participation (SLAPP). These lawsuits are often frivolous at their core but can impose major economic pressure on those defending them. The ultimate goal of such a suit is to silence opposition and chill speech.
One such case was brought against Greenpeace International (GPI) by Energy Transfer LP (ET) after GPI signed a letter opposing the construction of the Dakota Access Pipeline. While GPI defeated a Federal lawsuit in 2019, ET brought a state suit in North Dakota that has kept GPI’s legal team busy. However, GPI is now looking to the EU courts to put a halt to this SLAPP suit. In a recent letter to ET, informing them of potential liability under EU law, GPI states:
“In the European Union, there is growing awareness of the threat posed by SLAPPs, including SLAPPs in countries outside the EU. Recently, the Anti-SLAPP Directive entered into effect. In this Directive, it is confirmed that parties established in a EU Member State can claim all damage and costs they have suffered as a result of a SLAPP suit against them in a country outside of the EU before the courts of the country where they are established. GPI intends to do so, and for this purpose I am sending you this letter.”
The EU directive allows EU-based entities to recover expenditures incurred by SLAPP suits, even if those suits are brought in non-EU countries. GPI’s use of the new directive constitutes a landmark case, testing its protections. This isn’t the first time the EU has experimented with extra-territorial lawmaking. As the climate crisis worsens and jurisdictions have more interest in affecting the policy and activities of their neighbors, more countries are likely to implement extra-territorial policy. This means companies need to not only know the laws of the countries where they operate, but also know the laws of countries of those they interact with, in the context of legal proceedings, supply chain sourcing, or otherwise, to stay in full compliance.
Our members can learn more about trends in ESG litigation here.
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