Mealey's Emerging Toxic Torts

Behind the Eight Ball . . .

How Disputants In Environmental Cases Can Play Public Relations Catch-Up

By Richard S. Levick

Consider this real-life fact pattern. It’s a tough one . . .

After much hand-wringing, a group of well-heeled citizens agreed on an alliance to block an offshore wind power development project targeted to cover a gorgeous tract of sea and sound and provide energy to two toney island communities as well as a populous, diverse mainland shore region. The alliance was fretting over environmental damage similar to problems purportedly caused by windmills in Europe, including damage to fish beds and interference with bird migratory patterns.

There was potential danger to sea and air navigation as well. To be sure, the anti-development forces were also anticipating an aesthetic diminution that would mar their own view of the water, and likewise threaten the area’s lucrative tourist trade.

Unfortunately, the developer had apparent political clout, having simply strolled through the Army Corps of Engineers approval process. Worse, he had early on articulated powerful “message points” about the virtues of wind power and enjoyed a significant head start in terms of garnering and leveraging good press. He was indeed a powerful presence in the local media, and no environmental or commercial self-interest group had countered any of his messages. Absent an effective public response, their cause was bound to be a losing one.

It is a scenario that anyone who’s been involved in a dispute with an important environmental component may recognize as pointedly relevant. In such disputes, there is often a PR disparity between the contending parties. Like the wind energy entrepreneur, developers can plan media campaigns before their opponents even know the development is underway. Or, in litigation, corporate defendants are often constrained in what they can say publicly, which, of course, gives plaintiffs and Non-government Organizations (NGOs) a fast start out of the media gate.

The question then becomes, how do you catch up?

The wind power story offers an important related lesson for media combatants. Environmental controversies are now much more complex communications and management challenges than in the past because the opposing sides are less well defined socio-culturally. Wind power is a politically correct energy alternative, but fish beds and avian migratory patterns are also shibboleths. It’s hard these days to say whose side anyone will likely be on. Disputants cannot glibly audition for the role of good guy, not these days when environmental policy is making such strange bedfellows.

Corporate defendants are likewise deprived of easy buttons to push in the culture wars. They cannot simply attack the other side as starry-eyed tree-huggers, not when it’s mainly working class Republicans who earn their livelihoods by fishing in Prince William Sound. Or used to.

In the wind power case, the developer actually had the best button to push because he could accuse the wealthy, environmentally liberal corporate retirees in the region of a “not-in-my-back-yard” (NIMBY) hypocrisy. He could suggest, directly or indirectly, that they were traditionally all supporters of alternative energy — but someplace else, please, where they weren’t trying to dock their yachts.

The NIMBY factor thus made the problem of media catch-up exponentially harder to solve. The fact that the president of the alliance was formerly CEO of a large conglomerate sued in the past for high-profile environmental violations made the media position of the anti-development people almost ludicrously unfavorable. Could there be a solution at all?

Actually, there were five solutions, all of abiding relevance to most species of environmental contestation.

Solution No. 1: Overwhelm with Fact. Presumably, your side of the controversy has substantive merit. With many types of litigation, exculpation is merely a single fact or two: the accused was in Pittsburgh at the time of the murder, or the plaintiff was warned about the health risk of the baldness cure but chose to ignore that warning. With environmental matters, however, merit or blame is usually determined by a panoply of facts and ancillary data.

Play this multitude of available facts to your advantage. Even when the other side has a head start, the facts are still the facts. Often, reporters want to extend the life of a story by presenting an opposing position. Thus does the news cycle turn. Pick knowledgeable, fair press contacts who actually care about facts. The sheer massiveness of what you present, a veritable marshalling of evidence, will make the new news cycle possible and beneficial to both the reporter and yourself.

Solution No. 2: Expand the Audience. In the wind power case, an aggressive effort by the anti-development faction did finally result in a more balanced presentation in the local press, mainly because the issue was so important to their readers that community newspapers kept it alive for months. As a best practice, though, it is especially important that the story be revived in media venues that have not already been tainted by a plethora of one-sided stories.

The wind power case naturally leant itself to broader national coverage. The New York Times and the major television networks presented opportunities for the anti-development people to gain the same head start on the developer in the national media at the developer had enjoyed in the local and regional media. In turn, the national press coverage had a salutary effect on the perceptions of local reporters, subtly influencing their coverage closer to the other side.

In the wind energy matter, national coverage naturally included comparisons to how the environmental elements of the story played out elsewhere in the U.S. and abroad. The wider the geographic scope of each story, the less relevant the NIMBY component became.

Solution No. 3: Play to Journalists’ Best Professional Instincts. Reporters covering environmental matters may tend to be anti-corporate but, in the wind power case, the NIMBY angle was too good to resist. It appealed to their deep instinct for bringing down the mighty and uplifting the meek.

But reporters also want to be fair. To advance most reasonable positions in an environmental controversy, your approach to reporters is crucial. Never be contentious. Don’t even suggest that the reporter is culpable for his or her own apparent bias. Instead, blame circumstance. In the wind power case, reporters were called and told, “Look, we know you must be getting a lot of pressure from your editor to play up this NIMBY thing. But let us talk to you about something that we think is more relevant . . .”

It was important to bring the “NIMBY thing” out into the open, and to honestly acknowledge this potent sub-text of the debate. By doing so, reporters were politely challenged to handle the NIMBY theme as fairly as possible, and to balance it against other themes equally or more relevant to the debate. You may not win reporters to your side, but you don’t necessarily have to. The object of the game is to push them toward the middle.

Solution No. 4: Enlist third-party supporters. Celebrities and well-known experts present obvious benefits. Such star power is certainly one way to play media catch-up fast. You may not erase the weeks of adverse media focus, but you can certainly overshadow it.

The danger of recruiting certain celebrities is that they may already be lightning rods. Charlton Heston has done well by the National Rifle Association, but, in an environmental case, using someone like that may erode a crucially moderate and undecided population segment. Likewise, predictably liberal Hollywood-types (e.g., Ed Asner) may contribute nothing to an anti-development or pro-plaintiff matter simply because they are, from a media point of view, so predictable.

In the wind energy dispute, the alliance totally outgunned the developer on the celebrity front. Two charismatic politicians and one highly trusted network TV journalist spoke out against the windmills. Most important, though, a famed naturalist with no direct ties to the community was probably the most effective spokesperson. No NIMBY there!

Solution No. 5: Target Influential Readers. Once you begin to get your message through in the media, pick media venues that reach Very Important Persons, especially lawmakers. Toward that end, the anti-wind energy alliance added a number of publications to its media hit list only because they were published in the home states of congressmen closely involved with key regulators. To be sure, the alliance likewise included media in every region of the U.S. that was facing wind energy development.

The wind energy fracas is certainly an instructive example for all environmentally-sensitive cases — if only because this was a case that seemed so hopeless at the get-go. With limited funds, the alliance was able to overcome a giant head start by the opposition and to defuse a potentially devastating caricature of themselves as self-interested hypocrites.

With unlimited funds, and similar wisdom, imagine what the Fortune 100 can accomplish!

Richard S. Levick, Esq., rlevick@levick.com is President of Levick Strategic Communications, which has handled the media for numerous environmental cases and controversies, as well as diverse other high-profile matters, from Napster and the Florida election recount to the Catholic Church controversy and the Rosie O’Donnell Rosie magazine lawsuit. Their new book, Stop the Presses: The Litigation PR Desk Reference, is available free by emailing stopthepresses@levick.com. Copyright 2004 by the author. Replies to this commentary are welcome.