(This piece was originally published on September 17, 2018 by the Northwest Indiana Times.)

GARY — Hoosier Environmental Council, one of Maya Energy’s fiercest opponents, has moved to dismiss the company’s defamation civil suit against it, calling the suit an attempt to “bury their critics with legal fees than oppose them in the marketplace of ideas.”

In recent court filings, the environmental watchdog argued the suit — brought forth by a company seeking to construct a controversial waste/recycling plant next to Steel City Academy, a Gary charter school — chills the nonprofit’s constitutional rights of petition or free speech.

The nonprofit said the suit is in direct violation of Indiana’s Anti-SLAPP law that precludes individuals or entities from suing those who speak out against public issues.

The Anti-SLAPP statute was created following a trend that began in the 1970s when people were being routinely sued for speaking out politically.

“These lawsuits implicitly challenged free speech or petition rights and sent the message that there was a ‘price’ for civic engagement,” HEC writes in its filing. SLAPP suits threatened to chill “constitutionally protected activities” — like writing to government officials, attending public hearings, testifying before government bodies, and circulating petitions.

“Among the public issues our Supreme Court has singled out as being threatened by SLAPP suits are matters of ‘zoning, health and safety and environmental protection,'” HEC wrote.

Maya argues in its July 10 suit that HEC and Henderson sought to “excite derogatory feelings or opinions” to persuade the Indiana Department of Environmental to deny its application for a solid waste permit.

The lawsuit contended HEC defamed the company by publicly stating the project proposal lacks proper zoning approval; is located in a flood plain; does not serve a need; would be a threat to public safety; harms the health of students, teachers and local residents; damages the natural environmental and local infrastructure; and creates a nuisance and threaten public health.

Maya Energy in the complaint states HEC and one of its staff attorneys, Sam Henderson, “intentionally and/or negligently made such defamatory statements despite the lack of evidence to support same.”

In filing a motion to dismiss, HEC argues each statement was backed by in-depth research of state environmental law and Indiana administrative code and case law.

“Hoosier Environmental stands behind its research and analysis of the issues and its opinions and concerns about the potential effects of Maya’s proposed project,” HEC writing.

Ventura’s Maya Energy wants to build a $50 million, 165,000-square-foot facility at 2727 W. 35th Ave., a 35-acre field less than 100 feet from the Steel City Academy charter school.

The facility would employ up to 124 workers and process up to 2,400 tons — or 4.8 million pounds — of waste per day, including paper, plastic, wood, glass, metals and construction and demolition debris. Hazardous waste would not be allowed at the site, the company has said.

The facility would accept waste and construction/demo materials from Lake County and the Chicago area. Some of the material will be recycled. Nonrecyclable material could be sold off to companies to be burned off into usable fuel, or shipped to a landfill, according to a permit application.

HEC: Opinions, predictions are not defamation

HEC argues the nonprofit’s publicly stated predictions and opinions about the project — that it is a “dump,” does not serve a need, or that it is a threat to public health and safety — cannot be construed as defamatory under state statute.

“It upsets Maya that people call the project a ‘dump.’ Maya needs to grow thicker skin,” HEC writes in support of its motion to dismiss.

The Maya Energy project has been in motion for more than a year, but opposition picked up earlier this year. Henderson, environmental groups and school officials spearheaded efforts to reignite the debate this past spring.

Maya Energy’s attorney, Gerald Bishop, on Monday said he has not had time to review HEC’s motion to dismiss or supporting documents, but offered some comment.

“I can say that the Anti-SLAPP doesn’t give people a right to tell lies,” Bishop said.

Henderson and HEC has argued Maya Energy was misleading when presenting its project to the Gary City Council in 2016 and that its permit application inadequately addresses concerns about noise, pollution, truck traffic, and air and water discharges.

Maya has submitted several revised permit applications since the initial April 28, 2017, submission, making it extremely difficult for the public to effectively comment on the project scope, Henderson and other opponents have argued.

Calling the suit “frivolous, unreasonable and groundless,” HEC has asked the court to dismiss the case and order Maya Energy to pay for its attorneys fees.

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