Judge Throws Out Developer's 'SLAPP Suit' Against Environmental Group

Aug 23, 2017

A Chester County judge has dismissed a suit by a property developer that sought to stop an environmental group criticizing the company’s plans for redeveloping a contaminated industrial site.

Judge Jeffrey Sommer of the Chester County Court of Common Pleas threw out the complaint on Wednesday, saying that the defendant, Delaware Riverkeeper Network, is entitled to petition state and local governments in its efforts to block the project by O’Neill Properties, a King of Prussia-based developer of brownfield sites.

DRN is fighting the company’s plan to build 228 townhouses on the Bishop Tube site in East Whiteland Township where stainless tubes were made for decades, and which is now contaminated with TCE (trichloroethylene), a known carcinogen that was used at the plant as a degreaser.

The environmental group is asking the Pennsylvania Department of Environmental Protection to reject O’Neill’s plan for the site on the grounds that the development would involve only a partial cleanup, exposing residents to remaining contaminants. DRN has also urged East Whiteland Township to reverse its support for $1 million in state funds that would help with O’Neill’s planned cleanup – a request that the township recently met.

Judge Sommer said DRN was within its rights to petition the government.

“DRN has the right to petition its local and state governments as advocates for environmental safety and public health,” the judge wrote in a four-page opinion. “This is what we call constitutionally protected free speech under the First Amendment of the United States Constitution and the Pennsylvania Constitution.”

The ruling supports DRN’s contention that O’Neill’s challenge, filed on June 27, was a so-called “SLAPP” suit – a legal acronym standing for “Strategic Lawsuit Against Public Participation” – an attempt to block its free-speech rights.

O’Neill’s attorney, James Sargent, has rejected the description of the action as a SLAPP suit. He did not immediately respond to a request for comment on Judge Sommer’s ruling.

DRN’s leader, Maya van Rossum, welcomed the ruling.

“I am gratified that the court so quickly recognized the abuse of law that was being perpetrated by Mr. O’Neill and that it sought to render a strong decision quickly in order to assuage the fears of residents being so directly threatened by the developer and his multiple corporate entities,” van Rossum said in a statement.

The judge’s action follows a suit against anti-pipeline protesters filed in North Dakota on Tuesday by Energy Transfer Partners, which recently merged Sunoco Logistics, which is building the controversial Mariner East 2 pipeline across Pennsylvania. Greenpeace, one of groups targeted as “rogue eco-terrorists,” said the ETP action was also a “SLAPP” suit that is attempting to silence opposition to pipeline projects.

Rich Raiders, an attorney who represents some Mariner East 2 opponents, said the ETP suit is an example of attempts by pipeline builders to block dissent. “This is a classic example of why we have SLAPP actions we learn about in law school – lawsuits designed to discourage free speech by people,” he said.

By seeking to redress their grievances in court rather than through law-enforcement or writs of possession, companies like ETP are risking getting their SLAPP suits thrown out, Raiders said.

“They risk having their case dismissed in early stages for not using available remedies that do not rise to the public relations disaster that ETP had in Dakota Access and repeats in Mariner East 2,” he said.

In O’Neill’s case, the suit accused DRN of distributing “patently false and intentionally misleading information” that was designed to “frighten” residents about the company’s plans. It asked the court to direct DRN to retract its “false and defamatory statements” and sought damages of at least $50,000.

But the judge said there was good reason for DRN’s concern about contamination of the site and the surrounding community, given that O’Neill had acknowledged the spread of contamination in ground water beyond the site, and that it was planning only a partial cleanup.

“Given that there is no dispute regarding the fact that groundwater contamination on the site exists, and that it has spread beyond the site, DRN’s concern cannot be objectively baseless,” the judge wrote.

He declined to address an ongoing dispute over whether former owners of the site are responsible for the cleanup, saying that question was not currently before the court.

DRN argues that the 13.7-acre site, which has been empty since the late 1990s, should be fully remediated and converted into open space.

The DEP says it is continuing to investigate the contamination on site, and expects to issue a report this winter. Its research so far has found groundwater concentrations of TCE as much as 100,000 times higher than the statewide health standard within the site, and some 10,000 times higher in groundwater exiting the site, according to Virginia Cain, a community relations coordinator for the DEP’s southeast region.

The U.S. Environmental Protection Agency says TCE is carcinogenic to humans via all routes of exposure including inhalation, ingestion, or through the skin, and has been linked to fetal development problems.

Around the site, concerns persist about the health effects of TCE in ground water. Residents have called for a new investigation by the federal Agency for Toxic Substances and Disease Registry, which looked into the contamination in 2008 and concluded that public exposure to contaminants from the site had been “limited.”

The ATSDR also noted at the time that the Pennsylvania Department of Health had looked at cancer rates with a three-mile radius of the site and found they were no higher than the statewide rate.

In recent weeks, residents have been compiling a list of people living near the site who have or had cancer, some of them fatally.

Find this report and others on the site of our partner, StateImpact PA