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Libel Law An Inconvenient Truth For New-Plant Foes

DON MARSH, EDITOR

A lawsuit in North Carolina Superior Court Division, Buncombe County, where plaintiff Blue Ridge Concrete Inc. (BRC) is challenging a community organizer's "Opposing the concrete plant campaign," spotlights NIMBY (not in my backyard) tactics in an age where track records follow a company online. The ready mixed producer has sought a temporary restraining order against North Buncombe Association of Concerned Citizens (NBACC), alleging the group perpetuated libelous statements and artwork on a Web site, www.nbacc.info, aimed at squelching construction of a Weaverville, N.C., plant. It would join concrete operations Savannah, Ga.-based proprietor Mark Turner has opened in Georgia, South Carolina and Tennessee.

The restraining order would have required NBACC to discontinue dissemination of a) an image of a Blue Ridge Concrete-labeled mixer ramming a school bus; and, b) a letter from association president and Weaverville resident Aaron Pohl-Zaretsky to U.S. Environmental Protection Agency Administrator Lisa Jackson describing the company as "owned by an individual with other out-of-state plants that have several environmental complaints against them." BRC's Asheville-based counsel, Patla, Straus, Robins & Moore, P.A., contends defendants knew the image and statement were false upon distributing them. Beyond the temporary restraining order, attorneys seek preliminary and permanent injunction enjoining the defendants from any further distribution of the image and the Pohl-Zaretsky letter.

NBACC didn't wait for the hearing it was entitled to after receiving a court summons. Shortly after the lawsuit was filed, the group removed from www.nbacc.info the mixer-school bus image and a link to a pdf of the EPA letter. The updated site claimed in bold red type, "CENSORED! Until Blue Ridge Libel Suit is Won!," and that BRC had effected a SLAPP (strategic lawsuit against public participation). "SLAPP targets have been sued for engaging in a wide variety of protected speech and expression activities, including speaking as an officer of an active public interest group," according to First Amendment Project, an Oakland, Calif., advocacy. "Defending a SLAPP requires a substantial investment of money, time and resources. The resulting effect is a chill on public participation in, and open debate on important public issues."

Contrary to chilling public participation, BRC's lawsuit narrowly focuses on two allegations of libel. Defendants appear to have seized every opportunity to weigh in on a proposed ready mixed concrete plant in their town. Joining the CENSORED and SLAPP claims as a site update was a composite image with two smoke stacks and a man using an inhaler. It plays on a curious framing of ready mixed production: In his plea to EPA Administrator Jackson, Pohl-Zaretsky contends the BRC plant would bear a stack from which toxic effluent would blow directly into the bedroom of the nearest of 13 homes in the site's immediate vicinity. "Most homes are inhabited by low-income elderly and/or families with young children. Residents include individuals who have serious pulmonary diseases, rely on supplemental oxygen and," Pohl-Zaretsky laments, "would be forced to move if the plant were permitted."

Blue Ridge Concrete's continuing pursuit of a business that would bring Weaverville jobs and expanded tax base affords NBACC and its leader time to study libel law and check if First Amendment-protected speech includes wild exaggeration and tales of abject victimhood - even when directed to the country's top environmental official.