This is the story about how Greenpeace paid the price for standing up for a Native American tribe against a oil pipeline firm called Energy Transfer and losing a SLAPP suit. Strategic Lawsuit Against Public Participation. The point is to tie up money and resources of a defendant. It's something Donald Trump does all the time.
In 2016, the Standing Rock Sioux set up a protest camp along the proposed route for the Dakota Access Pipeline (DAPL) in North Dakota. The were concerned about pollution to their water, calling themselves "water protectors." They also feared the pipeline would disturb sacred sites and that it violated treaty rights.
During the next year, they were joined by activists and activist organizations around the country, and other Indigenous people, and even hundreds of Veterans. Greenpeace showed up, too. Six people. Over the year 100,000 took part.
Hundreds of police were used to patrol the protest with periods of violent arrests, even of journalists.
The Energy Transfer Dakota Access Pipeline went online is 2017. They picked Greenpeace as a target for having disrupted their construction work, causing additional costs. They filed a suit against Greenpeace for $300 million in a federal lawsuit which was dismissed in 2019. In that suit, Energy Transfer accused Greenpeace of racketeering conspiracy and terrorism.
So, Energy Transfer changed it's legal efforts to the North Dakota state courts. They knew that North Dakota has no protection against SLAPP lawsuits. Every judge in the district where it was filed, recused themselves for conflict of interest.
Of the 11 person jury, 7 had ties to the fossil fuels industry. Some of them admitted they could not be fair, but the judge empaneled them anyway. There were no Indigenous or people of color on the jury, even though Indigenous issues were central to the trial. In a pretrial survey, 97% of the people said they could not be fair to Greenpeace.
Energy Transfer put on a television and online advertising campaign in the weeks before the trial making their case against Greenpeace.
Printed copies of the Central ND News, with articles critical of the protest, were sent to every resident in the county. The judge wouldn't allow discovery for Greenpeace to find out who was behind this operation, which was designed to taint the jury pool.
The Standing Rock Sioux tribe was the organizer of the protests, and yet Energy Transfer was able to convince a jury that's six Greenpeace members were behind the whole thing.
During the legal battle during the years, the CEO of Energy Transfer, Kelly Warren, also a major Trump campaign donor, had many things to say about the lawsuit, like activists, "should be removed from the gene pool."
He said the lawsuit was not only about the damages, but also to send a message to environmental protesters.
Greenpeace claimed that: "In this case, Energy Transfer has maintained their entirely false claims that Greenpeace organized the #NoDapl resistance at Standing Rock, an allegation rooted in racism and in its erasure of Indigenous leadership in North Dakota."
When the jury reached it's verdict over a week ago, the damages were a whopping $667 million.
During the three week trial, The Guardian had an observer in court. Several things stood out as stacked against Greenpeace. There was no court recorder, and there are no court transcripts or recordings available. Live stream of the proceeding was not allowed even though requested by The Wall Street Journal and the New York Times. Key documents were sealed, so not available to the public.
The judge did not allow an expert report that showed that the work on the pipeline had leaked roughly 1 million gallons of drilling fluids into the drinking water of millions of people.
It was not a fair trial and there are so many grounds for appeal, even having the verdict set aside, that Greenpeace should win.
This win for Energy Transfer does not bode well for environmental protesters during this second Trump administration. When the FBI can determine that an organization is supporting terrorism, then the Treasury Department can revoke their nonprofit status.
Greenpeace is appealing here, and has a countersuit they filed in the Netherlands In February of 2024. In what is apparently the first test of the European Union's anti-SLAPP Directive, Greenpeace International is looking to recover damages and costs it has accrued due to Energy Transfers meritless lawsuits. Their suit will be heard in court in July.
The Standing Rock Sioux tribe has filed their own lawsuit against the Army Corps of Engineers last October, arguing that the DAPL is operating illegally and must be shut down. The Army Corps of Engineers has jurisdiction over a section of the pipeline that passes under Lake Oahe, half a mile upstream from the Standing Rock reservation.
Standing Rock Sioux celebration
The suit contends that the Army Corps of Engineers ignored federal regulations by allowing the pipeline to operate without an easement and insufficient study of environmental impacts, an emergency plans for spills.
"We are fighting for our rights and the water that is the life of the Oceti Sakowin tribes," said said Standing Rock Sioux Chairwoman Janet Alkire said during a news conference on Indigenous Peoples Day.
The pathway of the pipeline crosses unceded tribal land recognized as belonging to the Sioux Nation under an 1851 treaty with the U.S. government.
An engineering report from a firm called Exponent was conducted at the behest of Greenpeace in their continuing lawsuit against energy transfer. The report concluded that 1.4 million gallons of bentonite clay-based drilling mud was unaccounted for. There was no clear indication of what happened to it, but the assumption is that it seeped into the soil.
Energy Transfer has requested that the report be thrown from the case due to it being unreliable.
The tribe noted that the Environmental Protection Agency in 2022 recommended that Energy Transfer be banned from any federal contracts.
Standing Rocks Sioux put forth that Energy Transfer is not entitled to an easement if it is barred from government contracts. The ban recommendation stems from action in Pennsylvania with two of Energy Transfer's pipelines, where a criminal case showed that they had used unapproved additives in the drilling fluid used in constructing one of the pipelines. For this reason, the Sioux Tribe wonders whether any toxins were used in the drilling underneath Lake Oahe.
On March 28th, it was Judge James Boasberg that dismissed the Standing Rock Sioux case against the Army Corps of Engineers. He found that the tribe must wait until the Army Corps has finished an environmental study before bringing another case against the agency.
"No matter it's frustration with Defendant's sluggish pace, it is not yet entitled to a second bite at the Apple," Boasberg ruled.
The first case that the Sioux filed was in 2016. In 2020, Judge Boasberg ruled that the Army Corps had not conducted an environmental impact study, violating Federal law. The judge pulled the easement and ordered the pipeline drained of oil pending the Army Corps report. In 2021, an appellate court reversed his decision but did not reinstate the easement. Following that decision, Boasburg wrote that he couldn't shut down the pipeline indefinitely, as the tribe had not proved any immediate danger and irreparable harm.
The Army Corps of Engineers published a draft version of its report in 2023. Once the report is finalized the Army Corps will use it to determine whether an easement should be granted again. Judge Boasberg was annoyed that the Army Corps hadn't acted on its own property rights.
"The Corps has conspicuously declined to adopt a conclusive position regarding the pipelines continued operation, despite continued prodding from this court and the court of appeals to do so," he wrote in 2021.
In his Friday memo, the judge noted that many of the pieces of the current lawsuit were decided in the 2016 case, and the situations are not going to change until the Army Corps of Engineers report is completed. But, he noted that the tribe could file a new lawsuit against the Corps once the report is finished.
The tribe last fall asserted that they had new evidence, which is probably the Greenpeace commissioned study, which Energy Transfer does not think is valid.
After the judge's decision, North Dakota Gov. Kelly Armstrong said in a statement, "The Dakota Access Pipeline has been operating safely for almost 8 years now and is a critical piece of infrastructure for North Dakota and our nations energy security."
Judge Boasberg has been handling the Standing Rock Sioux cases since 2016. He's criticized the Army Corps of Engineers of dragging their feet, but there's nothing he can do about it. When they finalize the report, the Standing Rock Sioux have their chance to file another lawsuit to shutdown the Dakota Access Pipeline. All they can to is right now is to write letters to the Army Corps of Engineers to hurry it up.
Greenpeace has two avenues to get rid of the Energy Transfer win. Since Energy Transfer made the mistake of including Greenpeace International in the lawsuit, Greenpeace International has every right to file their anti-SLAPP lawsuit in the Netherlands. A court ruling there can be used to help reverse the North Dakota ruling. In the meantime, Greenpeace can appeal on all the court bias mistakes from the judge, the jury, disallowed evidence, jury pool tampering and more.
These cases are intertwined for many important issues. First Amendment rights. Tribal treaty rights. EPA and Army Corps of Engineer mistakes. Both Greenpeace and the Standing Rock Sioux need to win to literally stay alive. The Sioux for their water rights, and Greenpeace for beating a judgement that would bankrupt them. The Sioux would have rather have had Energy Transfer file against them for the protests, because they would have more easily won. That's why Energy Transfer went after Greenpeace. In oil country, they're looked at as interlopers, as seen by the pre-trial jury survey that said 97% couldn't give Greenpeace a fair trial. That should have caused a venue change, but it didn't. Greenpeace filed motions for a venue change and were overruled.
Greenpeace will file their appeal soon. If they lose in the North Dakota appeals court, then it's the state Supreme Court. They could just leapfrog over that and take it to the U.S. Supreme Court because it really is a First Amendment case. Six Greenpeace members did not cause a year long protest and there was no "funding" of the protest as the right loves to accuse.
I'd like them to take it to the U.S. Supreme Court. I don't think they can get a fair shake in North Dakota.
Resources:
Standing Rock Sioux Statement on Energy Transfer case against Greenpeace.
Greenpeace March 19th Case Statement
March 25th Op-ed in The Guardian about the Greenpeace case and its meaning to free speech
Two page summary of Standing Rock Sioux October 2024 lawsuit against the Army Corps of Engineers (PDF)
34 page lawsuit of Standing Rock Sioux lawsuit against Army Corps of Engineers (PDF)
English translation from Dutch of Greenpeace lawsuit against Energy Transfer for SLAPP lawsuit (PDF)(not so great)
National Museum of American Indian page on why treaties matter with the DAPL
7 page 2023 letter by the Standing Rock Sioux to the Army Corps of Engineers (PDF)
