2. Strategic Lawsuit Against Public Participation (SLAPP)

Strategic Lawsuit Against Public Participation (SLAPP)

Concept

A strategic lawsuit against public participation, or SLAPP, is a legal action filed to harass, vex, exert undue pressure on, or stifle a person who has taken legal recourse to enforce environmental laws, protect the environment, or assert environmental rights. The Rules of Procedure for Environmental Cases provide a means to raise and resolve a SLAPP defense. (A.M. No. 09-6-8-SC, Rule 6, Section 1)

Governing provisions

Rule 6 governs the SLAPP defense in civil environmental cases. Rule 19 addresses a SLAPP defense in criminal cases. A SLAPP inquiry concerns the purpose and basis of the action brought against an environmental advocate; it is not a substitute for proving the underlying environmental claim. (A.M. No. 09-6-8-SC, Rule 6) (A.M. No. 09-6-8-SC, Rule 19)

Requisites / Rules

• In a civil case, the defendant raises the SLAPP defense in the answer. The defense must be supported by documents, affidavits, papers, or other evidence. The defendant may also make a counterclaim for damages, attorney’s fees, and costs of suit. (A.M. No. 09-6-8-SC, Rule 6, Sections 1–2)
• The court directs the plaintiff to file an opposition showing that the action is not a SLAPP, then conducts a summary hearing. The defendant must show, by substantial evidence, that the act complained of was a legitimate action for the enforcement of environmental law, protection of the environment, or assertion of environmental rights. The plaintiff must show, by a preponderance of evidence, that the action is valid and not a SLAPP. (A.M. No. 09-6-8-SC, Rule 6, Sections 2–4)
• If the court sustains the civil SLAPP defense, it dismisses the action with prejudice and may award damages, attorney’s fees, and costs under a counterclaim, if filed. If it rejects the defense, the action proceeds; evidence presented at the summary hearing is treated as evidence on the merits. (A.M. No. 09-6-8-SC, Rule 6, Section 5)
• In a criminal environmental case, the accused may raise the SLAPP defense by a motion to dismiss after the information is filed and before arraignment. The court resolves the defense through the procedure under Rule 19. (A.M. No. 09-6-8-SC, Rule 19)

Distinctions

A civil SLAPP defense is raised in the answer and may carry a counterclaim. A criminal SLAPP defense is raised by a pre-arraignment motion to dismiss. In either setting, calling a case retaliatory is not enough: the defense requires evidence connecting the challenged conduct to legitimate environmental action. (A.M. No. 09-6-8-SC, Rule 6, Sections 1–4) (A.M. No. 09-6-8-SC, Rule 19)

Bar tip

Identify the underlying environmental act, the allegedly retaliatory suit, the proper pleading, and the applicable burdens of proof. Do not confuse the SLAPP defense with a separate environmental remedy such as a writ of kalikasan. (A.M. No. 09-6-8-SC, Rule 6) (A.M. No. 09-6-8-SC, Rule 7)