A new legal tactic that Greenpeace International has deployed to sideline Energy Transfer’s lawsuit to recover damages stemming from the 2016-2017 Dakota Access Pipeline protests has yet to gain much traction in North Dakota.
Attorneys for Greenpeace International, which is based in The Netherlands, last month sent a “Notice of Liability” letter to Texas-based Energy Transfer, arguing that the European Union’s new directive to combat lawsuits called SLAPPS (Strategic Lawsuits Against Public Participation) should apply to the $300 million Energy Transfer lawsuit filed in Morton County, N.D.
Greenpeace, which the pipeline company blames for the damage that occurred to Energy Transfer’s property and equipment during the pipeline protests, sees the energy company’s litigation as an abusive lawsuit – designed to silence nonprofits and activists and hit nonprofit groups with legal fees that put them on the path to bankruptcy.
“Energy Transfer’s lawsuit is a perfect prototype of what the EU Directive aims to end: wealthy players using towering legal claims and costs to muzzle criticism,” Daniel Simons, Greenpeace International’s senior legal counsel for strategic defense, said in a prepared statement. “Thanks to a concerted civil society campaign, there is now a strong tool to stop these cases at the EU border and to fight back against them.”
A professional organization representing more than 550 energy companies operating in North Dakota, however, said pipeline opponents must be held liable for illegal activities carried out during the pipeline protests.
“The Dakota Access pipeline has been operating safely and efficiently for nearly eight years,” Ron Ness, president of the North Dakota Petroleum Council, said in a statement emailed to Legal Newsline. “The pipeline transports American oil to U.S. refineries which strengthens American and global energy and political security while ensuring affordable reliable energy across the country. … Our nation needs more critical energy infrastructure. The tactics taken by opponents to the Dakota Access Pipeline were shameless, and they should be held responsible for their actions.”
Energy Transfer’s lawsuit argues that Greenpeace instigated the protests as a means of fundraising. Greenpeace, however, has described the pipeline protests as led by indigenous people concerned about potential oil spills affecting their native lands in the state.
Greenpeace International’s letter to Energy Transfer argues that the EU directive is meant to protect organizations based in the EU against SLAPPs filed outside of Europe. Further, unless Energy Transfer dismisses its lawsuit and agrees to pay the nonprofit’s legal bills stemming from the litigation, Greenpeace International will countersue Energy Transfer for damages in a Dutch court, the letter says.
The EU’s anti-SLAPP measure was enacted in April amid the oil industry’s efforts to sue “environmental watchdogs, water protectors and any critics,” according to Greenpeace International.
“To protect democracy and the right to freedom of expression and information in the (European) Union and to avoid the safeguards provided by this directive being undermined by recourse to court proceedings in other jurisdictions, it is important to provide protection against manifestly unfounded claims and abusive court proceedings against public participation in third-countries,” the Greenpeace International letter states.
The letter argues that Energy Transfer’s actions against Greenpeace International qualify as an abuse of rights under civil law in The Netherlands.
But Greenpeace International has also said that its branches, in the United States and elsewhere, operate independently of the nonprofit’s international headquarters and that Greenpeace International’s involvement with the pipeline protests was minimal, involving the signing of an open letter with other groups in support of indigenous groups.
The attempt to use the EU directive as legal leverage comes amid a leadership shake-up at Greenpeace USA after the removal of former executive director, Ebony Twilley Martin. Greenpeace Fund Board Chair Liz Gilchrist and Greenpeace, Inc. Board Chair Jakada Imani said in a joint statement on July 19 that Twilley Martin had “transitioned from her role,” but provided no further clarification.
Currently, two interim leaders are at the helm of the international group's U.S. operations as the lawsuit over the $300 million in damages moves forward.
On its website, Greenpeace said, in part, “A loss at trial could prove destructive to Greenpeace in the U.S. and have widespread impacts for the climate justice movement all around the world.”