CONCORD, N.H.—Invoking the First Amendment, NELC attorneys successfully beat back efforts by Casella Waste Systems to inquire into the internal deci s i on-making of Conservation Law Foundation and Toxics Action Center (now Community Action Works), the two plaintiffs in NELC’s ongoing Clean Water Act lawsuit over the discharge of pollutants at Casella’s landfill site in Bethlehem, New Hampshire.
The majority of citizen suits filed by NELC are brought on behalf of environmental organizations with members in the affected community. Under well-established Supreme Court precedent, such an organization may file suit on behalf of its members, provided that it has individual members who could serve as plaintiffs in their own right, and that the interests the suit seeks to protect are “germane to the organization’s purposes.”
As often happens in environmental lawsuits brought by such organizational plaintiffs, Casella sought to use the court’s formal “discovery” process to secure information wholly unrelated to the groups’ claims in the pending suit. It issued discovery requests seeking, among other things, the names of the groups’ members and information on the groups’ efforts to stop Casella’s proposed expansion of the landfill.
Under a string of court decisions dating back to the 1950s, however, the First Amendment confers an “associational privilege” upon advocacy groups, which protects their ability to freely speak and associate. The privilege extends to discovery requests made by a non-government entity, such as Casella, because it is the court—the government—that must enforce the requests. In the context of discovery, a party asserting the associational privilege must make an initial showing that enforcement of the discovery requests will result in harassment, membership withdrawal, discourage-ment of new members, or other consequences that suggest a “chilling” of associational rights. The burden then shifts to the party seeking the information to show that its interest in securing it outweighs the deterrent effect on the others’ constitutional rights.
Upon receiving Casella’s discovery requests, NELC secured affidavits from leaders within each organization describing the negative effects that dissemination of the requested information to Casella would have on their ability to engage in effective advocacy. The Vermont and New Hampshire state director of Community Action Works, for example, described incidents in which members had been harassed in grocery stores and received threatening mail during contentious community campaigns.
NELC attorneys then filed a motion with the court for a protective order, citing the potential for other such effects and noting that the requested information was irrelevant to plaintiffs’ lawsuit. This successfully constrained Casella’s discovery efforts to the factual bases for plaintiffs’ allegations that its landfill illegally discharges pollutants into the Ammonoosuc River— information to which Casella is entitled because it is the focus of the lawsuit.
