MANDAN, ND (Legal Newsline) - Jurors in Morton County began deliberations Monday on whether Greenpeace is liable for $300 million in trespass, nuisance and defamation damages for disruptions to construction of the Dakota Access Pipeline (DAPL).
Dallas-based Energy Transfer has argued that Greenpeace entities fueled protests in 2016 and 2017 involving the pipeline's planned Missouri River crossing, upstream from the Standing Rock Sioux Tribe’s reservation. The entities at trial include Netherlands-based Greenpeace International, Greenpeace USA and the funding arm of the environmental activist organization, Greenpeace Fund Inc.
Energy Transfer claims delays caused by protesters resulted in the project missing an online production deadline of Jan. 1, 2017. The company was contractually obligated to be online by that date or clients could take business to competitors.
In closing, lead attorney for Energy Transfer, Trey Cox, brought out a dolly cart with several large boxes of documents as a visual reminder of what he promised he would provide at the outset.
“I'm actually tired of being told I didn’t have any evidence,” Cox said. “I promised to stack the evidence high. I promised to stack the evidence wide.”
He asked jurors to read the jury instructions on proximate cause and to follow the evidence as Energy Transfer had documented in great detail how Greenpeace was the proximate cause of everything the jury had seen and learned at trial.
Cox also reminded jurors that the plaintiff’s case is not based on Greenpeace's arguments that they weren’t physically present or engaged in violent actions or weren’t the first ones to make nine alleged defamatory statements. He said that was irrelevant.
He showed an internal Greenpeace email that protests and delays caused to the DAPL were “made possible by the financial assistance of Greenpeace.” He advised jurors that the email authored by Greenpeace employee Cy Wagoner was “direct evidence of causation.”
Another internal email from Greenpeace employee Harmony Lambert showed her stating, “we were crucial for pressuring the Army Corp of Engineers to delay the permit.”
Cox said, "She was paid to make this happen.” He added that it was “direct evidence” that Greenpeace was a proximate cause of plaintiff’s damage and delays claims.
Cox concluded by stating, “We want you to know this type of violence, this type of vandalism, and this type of malicious lies is not acceptable,” and asked the jury to send a message to Greenpeace.
Greenpeace lead attorney Everett Jack told jurors in his closing that the plaintiff seeks to “blame the defendants for everyone and everything” done during and after the DAPL protests.
“The Standing Rock protests were predictable" was the title of a slide deck for the jury.
Jack pointed out that in 1982, the Standing Rock Sioux Tribe had vigorously opposed the northern border pipeline on the same site and had blockaded roads way back then.
Defense attorney Courtney DeThomas returned after being almost entirely absent from the court since delivering her opening statements on behalf of Greenpeace International.
She repeated almost the exact same arguments she made in her opening statement, saying that Greenpeace International wasn't even present in North Dakota, didn't send any funds to North Dakota, and only made two of the alleged defamatory statements central to Energy Transfer’s case.
She opened by following up from Jack's point, “did DAPL take any responsibility for the escalations on September 3rd (2016)?”
She repeated to the jury a line from her opening statement that there was “no evidence that anyone from Greenpeace International assisted, or agreed to provide assistance to anyone” at the DAPL protests.” She went on to express indignation that Energy Transfer had compared the three Greenpeace defendants to the mafia in their opening.
DeThomas concluded by reminding the jury “it is their (plaintiff's) burden to prove their case,” adding it is “not the defense's, not Greenpeace International's.”
“Their case just does not add up,” she concluded.
Matt Kelly concluded defense closing arguments and he spoke for Greenpeace Fund. He reminded the jury Greenpeace Fund is separate from Greenpeace Inc. and Greenpeace International.
Kelly added that they have a process for providing grants and they followed it.
“They fundraise and give grants,” he reminded the jury. He later added that Greenpeace Fund accounted for every dollar they granted to Greenpeace Inc. in the years in question, 2016-2018.
He concluded by explaining “the plaintiffs in their opening have already told you what to do when they have not met their burden,” in other words to rule against them.
Overall, Greenpeace defendants have mounted a First Amendment defense, and also have argued that a $300 million verdict could bankrupt the organization.
An important component of Energy Transfer’s closing remarks was showing “actual malice” from the Greenpeace defendants.
Malice was used repeatedly in the closing days of the trial from the plaintiffs.
In his closing, one of the exhibits Cox used was a collage of several of the most notable malicious statements in communications from Greenpeace employees and protesters they had allegedly trained.
Last week in making its case for defamation, Energy Transfer introduced email and text exchanges among Greenpeace officials.
They included one from Greenpeace communications director Molly Dorezenski to executive director of Greenpeace Inc. and Greenpeace Fund Annie Leonard, subject line "Wave of Resistance Wrap-up," in which Dorezenski states, "we wanted to point out (to banks) there were risks to engaging with ETP (Energy Transfer Partners).”
The email also included a statement that it was important to “make them look like they were not a good company (to invest in).”
Another exhibit included an email between podcaster Kyle Thiermann to several Greenpeace employees, including Dorezenski:
"I am gathering nominations for the mother fucker awards," he stated.
Dorezenski responded: "I would love to put Energy Transfer partners in the human rights category."
She included statements that Energy Transfer security personnel used attack dogs and pepper spray on peaceful protesters, which the company has claimed were false and defamatory. Dorenzenski added that the security tactics on protesters and the public were "the shit that makes them the worst of the worst."
Jurors also saw a photo of a vandalized bulldozer with "Fuck DAPL" written in graffiti. This phrase was shown to be often repeated internally at Greenpeace.
They saw video deposition of executive director of Greenpeace International Mads Christenson in which he was questioned about a Nov. 30, 2016 "Banktrack" letter that Energy Transfer claimed led banks to divest from the pipeline, as well as hurt their international relationships with 17 banks that were part of the syndicated construction loan for the pipeline.
When asked, "why didn't you just have Greenpeace USA sign the letter," Christensen responded, "I think it would carry more weight to have it signed by Greenpeace International" as well.