NextEra won’t drop its lawsuit against Esther Wrightman 

Two years ago, I wrote a piece for NRO about a SLAPP suit (strategic lawsuit against public participation) that NextEra Energy, America’s biggest wind-energy producer, had filed against Esther Wrightman, an anti-wind-project activist from the tiny village (pop.: 120) of Kerwood, Ontario. It’s now time for an update.

NextEra overcame Wrightman’s opposition to the Adelaide Wind Energy Centre, a 60-megawatt project that began producing electricity last year. The 38-turbine wind project was erected right next to Wrightman’s home. In June 2014, she left not only Kerwood but Ontario and, along with her two children, her husband (who is disabled), and her parents, moved to the larger village (pop.: 1,889) of St. Andrews, New Brunswick. The Wrightmans also relocated their family business, Wrightman Alpines, a nursery that specializes in alpine plants.

Esther Wrightman couldn’t stop the wind project that turned her into an activist. But here’s the reason for this update: NextEra is still SLAPPing her. For reasons the company won’t explain, it hasn’t dropped its litigation.

This is more than a story about Goliath beating up on David (or Esther). It’s also fundamentally about freedom of speech and the ability of citizens to speak out against (or, in Wrightman’s case, to make fun of) big corporations.

The particulars of the litigation are as follows: In May 2013, NextEra filed the lawsuit against Wrightman, claiming that she had defamed the company on her website (ontario-wind-resistance.org) because she has repeatedly referred to it as “NexTerror” and “NextError.” (Wrightman, who fought NextEra for about five years in Ontario, also has a YouTube channel.)

NextEra’s litigation against Wrightman provides a textbook example of a SLAPP suit. The fact that NextEra, a company with a market capitalization of $44 billion, had its feelings hurt by a 30-something mother of two young children is silly enough on its face. But what makes the lawsuit so loathsome is that NextEra also claims that Wrightman is violating Canada’s Competition Act, a law that is aimed at preventing anti-competitive business practices. NextEra claims Wrightman is engaging in anti-competitive behavior because she is seeking to support “her own business interests,” which NextEra claims include “raising funds” via the Internet “to oppose the development of wind energy in Ontario.

In other words, NextEra sued Wrightman because she was standing in the way of its business interests in Canada. By that logic, the U.S. coal industry could sue the Sierra Club because the environmental group’s Beyond Coal campaign has been so successful. Donors like former New York City major Michael Bloomberg have given the group tens of millions of dollars, which it is using to fund regulatory efforts to force the closure of coal-fired electricity generation plants.

Or better yet, imagine a Canadian company, like the Calgary-based TransCanada, suing an American, say, Bill McKibben, the climate activist who has helped block, for years, the construction of the company’s Keystone XL pipeline, which is designed to carry bitumen (oil sands) from Alberta to the Gulf Coast.

Instead of Canadians suing an American, we have NextEra, a company from America – where free speech is paid great homage, and where about 30 states, and the District of Columbia, have passed anti-SLAPP laws – suing to silence a Canadian woman whose income last year was $23,500 (I asked) simply because they don’t like the fact that she has made fun of NextEra’s name.

Cara Zwibel, the director of the Fundamental Freedoms Program at the Canadian Civil Liberties Association, told me via e-mail that the suit against Wrightman “does appear to be an attempt to get her to stop altering their logo and chill her vocal criticism of the company.” Ontario has been considering anti-SLAPP legislation for several years but has yet to pass such a measure. Zwibel said that the CCLA “is very supportive of anti-SLAPP legislation and has been advocating for it for quite some time.” Her group has also launched a project to help SLAPP defendants in Ontario find pro-bono legal assistance.

Zwibel said the CCLA has not intervened in NextEra’s case against Wrightman “at this stage,” but she added that she has “been in touch with Ms. Wrightman to consider if and how we can offer some assistance.”

You’d think NextEra, which operates more than 100 wind projects in 19 states and Canada, could afford to tolerate a critic or two. Instead, in its suit against Wrightman, which you can read here, the company claims that it has suffered “serious and immediate irreparable harm” because of Wrightman. It also claims it has “suffered, and is continuing to suffer, loss and damage” while Wrightman has been “unjustly enriched and has earned direct and indirect profits and benefits.” That’s a remarkable claim given the money NextEra is making thanks to the generosity of taxpayers on both sides of the U.S.–Canadian border.

As I reported back in 2011, NextEra garnered some $610.6 million in grants from the 2009 stimulus bill (the American Recovery and Reinvestment Act) for various wind projects. The company’s 2010 annual report shows that its federal tax bill was cut by more than $200 million that year thanks to various federal tax credits. That same document said that NextEra had another $1.8 billion of “tax-credit carryforwards” that will help it slash its taxes over the coming years. In its 2014 10-K, the company said that its tax-credit carryforwards had increased to $2.7 billion and that those credits will help it reduce its tax bills through 2036.

Given its subsidy-driven business model, it’s no surprise that NextEra is a major player within the wind industry’s main lobby groups. John DiDonato, a vice president at NextEra, serves on the board of directors at the American Wind Energy Association, and is now the board’s  treasurer. Another NextEra employee, Ben Greenhouse, is the chairman of the board of directors at the Canadian Wind Energy Association.

NextEra is making sizable profits in Canada, despite widespread opposition from people like Wrightman. (Ontario has more than 50 anti-wind-project groups.) Two years ago, I estimated that thanks to the generous feed-in tariffs from the government of about 11.5 cents per kilowatt-hour of electricity produced, NextEra will likely make back its entire investment in the Adelaide project (about $132 million) in less than seven years. After that, all the revenue will be profit. To put that 11.5-cent payment in perspective, the average cost of residential electricity in the U.S. is now about 12.5 cents per kilowatt-hour. In other words, on its Adelaide project, NextEra is collecting a subsidy for wholesale electricity that is almost equal to the retail price of electricity in the United States.

Given these many facts, why hasn’t NextEra dropped its lawsuit against Wrightman? The company won’t say.

Steven Stengel, a company spokesman, refused to answer questions about the SLAPP suit or about NextEra’s Canadian operations. In an e-mail, he said: “While we appreciate the opportunity, we will not be contributing to your article.” I also contacted Awanish Sinha, the lawyer who is representing NextEra in the lawsuit. Sinha, a partner at the Toronto-based McCarthy Tétrault, the fifth-largest law firm in Canada, did not respond to my e-mail.

It appears that NextEra will let its lawsuit continue pending against Wrightman until she dies. It can force her to respond whenever it chooses. Wrightman recognizes the threat. In an e-mail, she told me that if NextEra resumes action on the lawsuit, it would mean “travel and legal fees” that “could make me crumble, especially on top of all the time that is needed to prepare a case. And now that we live out here [in New Brunswick] the travel would be near impossible.”

Wrightman says she’s glad to be out of Ontario, where NextEra, Suncor, and a number of other companies are pushing for additional wind projects and the generous subsidies they will collect from them. She likes being in New Brunswick, because the province “is essentially broke and can’t throw money at such fanciful ideas as wind turbines when they have cheap power readily available.” She continued, saying, “Everywhere we looked in rural Ontario there was threat of wind developments – it’s not like we could just move over to the next township or county because they were going up there too, or are proposed to go up there in the future.”

And Wrightman says that regardless of what happens next in the SLAPP suit, she won’t quit satirizing NextEra on the Internet. “If I were to retract the images (or videos, or website) that would truly be giving in to this company’s threats.”