SLAPP stands for Strategic Lawsuit Against Public Participation. It stands for the bringing of a conventional cause of action not for the purpose of that action but to stop citizens from criticizing a particular project or company. Causes of action may be trespass, nuisance, negligence, defamation, or interference with contract. A typical scenario occurs where a neighborhood citizen group criticizes the XYZ Company for its landfill expansion. The next thing the citizens know is that they are being sued for defamation. The lawsuit will be directed toward the citizen group, and sometimes against the more active members as individuals.

The terror of a SLAPP suit is that the citizens are dragged into the legal process as unwilling defendants. They must pay attorney’s fees, pay related expenses such as deposition costs, answer personal questions about their net worth, risk losing their savings, and perhaps suffer years of time away from their work and homes. Above all, the uncertainty of what will happen causes fear and frustration. The usual result, and the result usually sought, is that the citizens will shut up. Settlement will involve the citizens foregoing their rights to criticize the XYZ Company. Sometimes, the citizens will even have to pay the other side’s legal fees.

There is a new statute meant to protect the citizens from such SLAPP lawsuits. Its sponsor was Camille (Bud) George, and it is found at 27 Pa. C.S.A. 8301, et seq. Citizens will be immune from civil liability under two circumstances. First, they will have immunity for filing a lawsuit where the action complained of is done pursuant to federal or state law, is an action in the courts of the Commonwealth to enforce an environmental law or regulation, and is aimed at procuring favorable governmental action. Id. at §8302 (a).

Here, citizens are protected when they file an action in state court, i.e., they cannot be countersued for filing the action. It should be noted that the statute uses the term "court" and not "agency." Action in the Environmental Hearing Board, therefore, would not be covered.

The statute further defines what is meant by the enforcement of environmental law and regulation: "Activity relating to the identification and elimination of violations of environmental laws and regulations, including investigations of alleged violations, inspections of activities subject to regulation under environmental law and regulations and responses taken to produce correction of the violations." Id. at §8301.

Secondly, citizens will be immune from civil liability for oral or written communications to a government agency relating to enforcement or implementation of an environmental law or regulation where the communication is aimed at procuring favorable governmental action. Id. at §8302 (a). This section is more complex with long and detailed definitions of all the major phrases. Here, actions before the Environmental Hearing Board would be covered. The phrase "communication to the government" means an oral or written statement made:

(1) Before a legislative, executive or judicial proceeding or any other official proceeding authorized by law;

(2) In connection with an issue under consideration or review by a legislative, executive or judicial body or any other official proceeding authorized by law; or

(3) To a governmental agency in connection with the implementation and enforcement of environmental law or regulations.

Id. at §8301.

The phrase "government agency" is defined as the following: "[T]he Federal Government, the Commonwealth and any of the Commonwealth’s departments, commissions, boards, agencies, authorities, political subdivisions or their departments, commissions, boards, agencies or authorities." Id.

Citizens who make statements about environmental matters at governmental hearings should be covered. These types of hearings would normally include permit hearings, zoning boards, planning commissions, etc. It is clear that these statements would be communication made to a government body or agency. It is also clear that as long as these statements concern environmental matters then they should be covered.

Written communications to a government body or agency should likewise be covered, as long as they concern an environmental matter. Typically, these would include letters to government about permit decisions or potential violations of environmental laws.

It is not so clear whether this statute would cover statements made outside of government hearings, such as in an editorial in a local paper about an environmental matter or even about matters that occurred at a governmental hearing. The definition of "communication to the government" includes the phrase "in connection with an issue under consideration" and that might be interpreted to include such an editorial, even though it is outside of a governmental body or agency. Id. at §8301. An argument also could be made that "in connection with" means an issue connected with an environmental law or regulation, and thus must be made before the governmental body or agency.

The burden then shifts to the XYZ Company to show exceptions to the citizens’ immunity. Id. at §8302. If it is a defamation case, e.g., then XYZ first must show that the allegations complained of are "not relevant or material to the enforcement or implementation of an environmental law or regulation." Id. at §8302 (b). Next, XYZ must show that the "allegation in the action or communication is knowingly false, deliberately misleading or made with malicious and reckless disregard for the truth or falsity. . . ." Id. at §8302 (b)(1). In cases alleging interference with contract, the plaintiff must show both the relevancy standard described above and the allegation in the action or communication is made for the sole purpose of interfering with existing or proposed business relationships.

The biggest advantage of the new statute is that the citizens can get out of the case early, thereby saving attorney’s fees and obtaining peace of mind. This is because the citizens have a right to an early hearing, solely to decide whether the citizens have immunity under the statute. Even if the citizens lose, they still get their day in court. 27 Pa. C.S.A. §8303.

If the citizens win, however, they also get to recover attorney’s fees and costs. This can be a large disincentive for the plaintiff to even bring such a suit, especially if the claim is marginal. Id. at §7707.

If the citizens lose, all is not lost. They get an immediate interlocutory appeal as of right to Commonwealth Court. Id. at §8303. Since a common pleas judge will know that his opinion will receive careful scrutiny almost immediately, there will be an incentive for the judge to hold full hearings and write well reasoned opinions.

Another advantage is that the statute gives governments the right to jump in and help protect those rights. It also can prove embarrassing to the government that stays silent.

The strength of the environmental immunity statute is that it counterbalances the enormous weight and leverage of the XYZ Company type of plaintiff. Citizens gets their day in court before having to spend their life’s savings. Hopefully, those contemplating SLAPP type lawsuits will think carefully before they file. Once that complaint is answered, however, this statute kicks in with its threats of early dismissal and attorney’s fees for the citizens.