MORTON COUNTY, ND (Legal Newsline) - The defense in the ongoing trial between Energy Transfer and Greenpeace rested its case Thursday, March 13, with Energy Transfer seeking $300 million in damages, alleging that Greenpeace's actions harmed the company’s reputation and delayed the Dakota Access Pipeline project.
The case stems from allegations that Greenpeace fueled protests in 2016 and 2017 aimed at halting the pipeline’s construction, some of which involved violence and property damage.
Kelcy Warren, founder and current Chairman of Energy Transfer, testified about his efforts in the fall of 2016 to negotiate a deal with Standing Rock Sioux Tribe Chairman Dave Archambault II.
Warren claimed Archambault told him that no deal could be made due to restrictions, and that he believed the tribe and Archambault were “contractually bound” by Earth Justice, the law firm representing the tribe.
“I read between the lines,” Warren testified, adding that Earth Justice was “very close” to Archambault.
Warren also had choice words about Earth Justice, identifying them as the lawyers representing the Standing Rock Sioux Tribe. He elicited laughter from the court after exclaiming, “Oh gosh, they're scumbags!” When asked why, Warren stated unequivocally that he believed Earth Justice facilitated payments to DAPL protesters. “Money was paid, and Earth Justice was the carrier of that money,” Warren said.
Regarding the pipeline’s location near Lake Oahe, Warren explained that the Army Corps of Engineers directed the location, contradicting claims by protesters and activists.
“We laid it there because the Army Corps of Engineers told us to put it there,” Warren said.
When asked if he believed the Standing Rock Sioux Tribe was engaged in a “con job,” Warren responded, “Absolutely!” He also pointed to a widely circulated photo that allegedly showed a young girl being attacked by security dogs. Warren maintained the image actually depicted a girl from Houston, unrelated to the pipeline protests.
“It was fake news,” Warren said.
Warren concluded his testimony by stating that, after enduring what he considered “knowingly false claims, paying protesters, and other things,” Energy Transfer decided it was “time to fight back.”
John Reed, chairman of Concentric Energy Advisors, testified as a defense expert to rebut plaintiff expert David Leathers' claims about delays in refinancing Energy Transfer’s construction loan.
Reed stated that “litigation risk was the principal concern of the investors,” specifically the risk that the easement permit at the disputed Lake Oahe site would be delayed or not granted, which he called a "show stopper risk."
Under cross-examination, Reed admitted he had never spoken with banks about why they divested or delayed refinancing without additional protection, such as an "equity contribution agreement" requiring Energy Transfer to use its own stock as collateral. He also acknowledged that litigation risk existed when banks closed on the $2.5 billion construction loan on Aug. 2, 2016, despite the Standing Rock Sioux Tribe filing a lawsuit on July 27, 2016, to stop construction at Lake Oahe.
Reed concluded by stating that if the jury finds Greenpeace caused the delay, he could not dispute the damages calculations from plaintiff expert Leathers.
“I don’t have an alternative on the math,” Reed said.
Chris Weil, a media analysis expert for The Mintz Group, contracted by Greenpeace to measure social media engagement, testified regarding nine alleged defamatory statements made by Greenpeace entities, including two attributed to Greenpeace International. Weil argued that any defamatory statements made by Greenpeace had a minimal impact on Energy Transfer.
He further explained that Greenpeace’s statements came later with the first alleged defamatory statement occurring on Nov. 7, 2016, according to the plaintiffs' case. Weil compared this to an earlier statement made by The Guardian in April 2016, which he found to be more impactful.
On cross-examination, Energy Transfer’s attorney Ben Betner questioned Wheeler about his expertise and methodology.
Weil confirmed he had "never talked to any banks" about their relationships with Energy Transfer or the Dakota Access Pipeline, calling it "beyond my scope."
Further questioning focused on Weil's methodology, particularly his use of the “Crowdtangle” software, which measures social media engagement such as likes, comments and shares.
Betner pointed out that the tool did not track social media “reach,” or the number of views a post receives. Weil admitted that Crowdtangle, which was shut down by Facebook in 2024, only measured engagement, not the total number of views.
Weil clarified that Greenpeace had only asked him to measure engagement, not reach or total views. When asked about a hypothetical example involving a Facebook user named “Alice” who shared a Greenpeace post, Weil confirmed that his methodology would count only two engagements—one from Alice and one from her friend—even though the post reached a total of 102 people.
In a separate video deposition, Amy Lehr, a corporate social responsibility expert at Foley Hoag, testified on the “Equator Principles,” which are voluntary guidelines adopted by financial institutions to ensure large-scale development projects consider their potential environmental and community impacts.
Lehr explained that she authored a report on “best practices for oil pipelines in the U.S.,” which was used by TD Securities in its due diligence efforts regarding its investments in the pipeline. She clarified, however, that her role was “not evaluating whether the project met U.S. law.”
The jury in the trial is set to return on Monday, March 17.