DALLAS (Legal Newsline) – The lead partner in the Dakota Access Pipeline won't give up on a lawsuit against Greenpeace over violent protests, announcing recently that it will “stand in opposition to [Greenpeace]’s repeated attempts to avoid accountability for breaking the law.”
In a blog post published on Sept. 9, Energy Transfer refused to rescind its claims against Greenpeace USA or “accept liability or responsibility for payment of any alleged damages incurred by [Greenpeace] as a result of the same.”
Greenpeace USA is scheduled to go to trial in February over claims that it played a central role in the Dakota Access Pipeline protests, which a federal judge once described as “mindless and senseless criminal mayhem.”
Greenpeace tried to remove the $300 million lawsuit to federal court and failed, leaving it facing trial in Morton County, North Dakota, where thousands of protestors descended in 2016 to try to block a pipeline they said passed through sacred Indian lands.
The company added that it “believes in the meritorious nature of the U.S. lawsuit, including those claims brought against [Greenpeace], and intends to diligently pursue just adjudication of those claims in the North Dakota state court.”
Energy Transfer said Greenpeace USA instigated numerous illegal acts. including damaging and burning pipeline equipment by issuing false statements, donating money and supplying employees to “organize the protestors most willing to engage in violence.”
Greenpeace maintained it is being persecuted for engaging in speech protected by the First Amendment. Its Dutch parent Greenpeace International has countersued Energy Transfer under a new European Union law modeled upon U.S. Strategic Lawsuits Against Public Participation (anti-SLAPP) statutes, which allow organizations to recover legal costs in cases brought to stifle public debate.
“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,” Greenpeace International said in a July news release.
Energy Transfer also addressed this dimension of European law in its recent blog.
“After careful consideration, Energy Transfer considers Greenpeace International’s threatened causes of action before the courts of the Netherlands to be wholly without merit for several reasons, two reasons chief among them," it said.
"First and foremost, the U.S. lawsuit is quite clearly not a SLAPP suit. It is a legitimate and justified effort to hold Greenpeace International and its Greenpeace co-defendants responsible for the defamation, disruption, and property destruction they inflicted on Energy Transfer in contravention of the law.
"Greenpeace International has recycled the same SLAPP argument multiple times before, in both federal and state court, to no avail."
Energy Transfer said the anti-SLAPP-style defense is improper and "gamesmanship." It has mustered enough evidence for its lawsuit to survive so far. A federal judge dismissed the company’s racketeering claims but also rejected the idea the Dakota Access protests were a peaceful exercise in free speech.
He declined to dismiss Energy Transfer’s state-law claims and remanded the case to Morton County.
“To suggest that all of the protest activities to date have been ‘peaceful’ and law abiding defies common sense and reality,” U.S. District Judge Daniel Hoveland wrote in a 2016 order. “Nearly every day the citizens of North Dakota are inundated with images of 'peaceful’ protestors engaging in mindless and senseless criminal mayhem.”
North Dakota itself is suing the federal government to recover some $38 million in costs for police and emergency responses by state and local authorities during the protests, which lasted from summer 2016 until April the following year. The state accused the Obama Administration of encouraging the protestors by failing to take any action even though the main encampments were on federal land.
In its lawsuit, Energy Transfer accuses Greenpeace of helping to spark the protests by putting out false claims the Dakota Access pipeline would cross land owned by the Standing Rock Sioux Indian tribe, even though it was located on a path occupied by existing pipelines that went through federal property. Greenpeace “disseminated this false claim to thousands upon thousands, if not millions, of people to raise funds and stimulate protests,” Energy Transfer said.
The pipeline company said Greenpeace also falsely claimed the pipeline would desecrate sacred burial grounds, despite findings by the North Dakota State Historical Society that there was no evidence to back it up. A federal court in Washington agreed and said Dakota Access tried to negotiate with the Standing Rock tribe but members “largely refused to engage.”
Energy Transfer’s monetary claims focus on damage to property and equipment, which it says Greenpeace encouraged, even though it names non-Greenpeace entities and individuals who built the “Red Warrior Camp” on federal land. Earth First!, “in concert with” Greenpeace, gave $500,000 to support the camp, Energy Transfer said, and Greenpeace employees provided “direct action training” to protestors.
The company includes numerous Red Warrior videos and social media posts, including instructions for disabling security guards by stabbing them in the neck. The lawsuit cited violent incidents when Red Warrior members invaded Dakota Access construction sites and disabled equipment. Greenpeace supported these efforts, the company said, including a fundraising drive for the Red Warrior Camp.
Greenpeace also interfered with Energy Transfer’s business, the lawsuit claimed, sending joint messages with an organization called Banktrack to lenders involved in a $2.5 billion facility for the Dakota Access pipeline. The lenders hired law firm Foley Hoag to investigate baseless claims of human rights abuses and Energy Transfer said it incurred its own legal expenses responding to the probe. ABN Amro and Nordea ultimately stopped doing business with Dakota Access, the company said.
Nonprofits including Greenpeace have a strong track record of defeating lawsuits like this on anti-SLAPP grounds. A federal judge ordered Resolute Forest Products to pay Greenpeace $800,000 in costs after dismissing a similar case in 2020.
There are signs Greenpeace is worried this case will be harder to beat, however. Executive Director Ebony Twilley Martin stepped down in July amid what one former Greenpeace executive said was a dispute over whether to settle the Energy Transfer lawsuit. An E&E article quoted former Greenpeace USA Chief Operating Officer Willem van Rijn as saying, “This case is a matter of survival for the organization. It’s not just another lawsuit.”
On its website, Greenpeace agrees it “could face financial ruin” if it loses.
“Energy Transfer’s lawsuit threatens our fundamental rights to organize and protest,” Greenpeace said. “A win for them sets a dangerous precedent – allowing more attacks on unions, activists, and journalists – and silencing our speech through intimidation,” according to Greenpeace.
In an issued statement, Energy Transfer rejects this notion:
“Our lawsuit against Greenpeace is not about free speech as they are trying to claim. It is about them not following the law. We support the rights of all Americans to express their opinions and lawfully protest. However, when it is not done in accordance with our laws, we have a legal system to deal with that. Beyond that we will let our case speak for itself in February,” the company said.
From Legal Newsline: Reach Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com