Next week, not far from where thousands of Indigenous and environmental activists gathered in North Dakota nine years ago in opposition to the Dakota Access Pipeline, one of the most consequential trials to emerge from that conflict is set to begin.
The case, filed by pipeline developer Energy Transfer, accuses Greenpeace of defaming the company while funding and supporting some protesters who damaged its property.
On its face, the trial is an attempt to seek millions of dollars in damages from an environmental group for campaigning against a pipeline project. At its heart, however, many activists, legal experts and even the company’s chief executive say the case is about much more.
“It’s about really the silencing of the Greenpeace entities,” said Sushma Raman, interim executive director of Greenpeace USA, during a press call Thursday, referring to how both the organization’s U.S. arm and its international parent are named. “It’s about trying to bankrupt some of the entities, and more importantly it’s silencing and sending a message to broader civil society.”
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Eight years ago, after Energy Transfer had filed a related case in federal court, the company’s chief executive, Kelcy Warren, said something similar to a North Dakota news station. His true goal was not the money, he said, but “to send a message: You can’t do this. This is unlawful and it’s not going to be tolerated in the United States.”
Some legal experts say the case is a particularly large and dangerous example of a so-called strategic lawsuit against public participation, or SLAPP, which wealthy individuals or corporations use to deter criticism. These cases can succeed even if they ultimately lose at trial or are dismissed, by exhausting the resources of defendants.
“Private corporations should not be able to bring expensive lawsuits alleging defamation for constitutionally protected speech and actions,” said Wade McMullen, a distinguished fellow at the Human Rights Institute at Georgetown Law, who is part of a team planning to monitor the trial. He said simply filing a case like this can suppress speech, because defending the claim can sap the resources of advocacy groups. “In many instances, the corporation bringing these lawsuits is counting on exactly that, that they’re going to tie up their critics in excessive legal fees in order to silence them and in order to silence future critics as well.”
Greenpeace said it has spent millions of dollars defending against this case and another filed against it in 2016. Many smaller nonprofits, civic groups and activists would not be able to afford that amount, McMullen said, “so the case has enormous potential to instill a chilling effect across all sorts of civic activism for the protection of any number of rights, including the environment.”
Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University, said the case is “a classic example of a SLAPP,” adding, “and this is a really, really big one.”
Many states have anti-SLAPP laws that enable meritless cases to be dismissed quickly. North Dakota does not.
A spokesperson for Energy Transfer said in an email, “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.”
The protests at the Standing Rock Indian Reservation were a watershed for the environmental movement, when environmental activists and celebrities from around the country joined an Indigenous-led campaign to oppose construction of the pipeline. The effort gained enough support to prompt the Obama administration to deny the pipeline’s permit, only to have that decision reversed by the Trump administration in 2017.
Still, the movement’s success prompted a response from the fossil fuel industry and its allies. In Oklahoma, a state lawmaker introduced a bill to stiffen penalties for trespassing on pipeline property or impeding construction of energy infrastructure, a law that spread across the country and has now been enacted in at least 21 states, according to the International Center for Not-for-Profit Law. Federal lawmakers and an oil industry group likened pipeline vandalism to terrorism.
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Energy Transfer responded by filing a federal lawsuit against Greenpeace and other defendants using civil racketeering law to seek at least $300 million in damages. That case was dismissed in 2019, prompting the company to file the case in North Dakota state court that is now reaching trial.
The state court complaint names Greenpeace’s U.S.-based entities as well as its international parent group, based in the Netherlands. It claims the groups spread false statements to defame the company and provided training and support to activists at the protests, some of whom then damaged Energy Transfer property and threatened its employees.
“What Energy Transfer is trying to do is create incredible, dangerous law around this idea of collective protest liability,” said Deepa Padmanabha, senior legal advisor for Greenpeace USA, during the press call. She added that the company was arguing that anyone who supported or participated in a protest should be held liable if someone else there breaks the law. “If successful, this kind of tactic could have a serious chilling effect on anyone who might consider participating in a protest.”
Waniya Locke, a grassroots organizer who lives on the Standing Rock reservation, said during Greenpeace’s press call that Energy Transfer’s claims ignore that it was Indigenous women, not any environmental group, who organized the protests against the pipeline.
“We’re living in an age right now where corporations have, uncontroversially, extraordinary influence over our political system.”
— Wade McMullen, Human Rights Institute at Georgetown Law
While SLAPPs are not new, some legal observers see the case as part of a trend of increasing corporate power over the nation’s political and legal systems and wealthy individuals willing to use lawsuits to silence critics.
Warren, the pipeline executive, is a prolific donor to Republican candidates and has been a top supporter of Donald Trump’s presidential campaigns. Energy Transfer’s employees or political action committees collectively contributed $12.5 million to Trump’s 2024 election effort, according to OpenSecrets.
Trump himself has long used lawsuits to fight back against those he perceives as opponents, especially in the media. ABC settled a defamation case last year, while CBS is facing a separate suit from Trump. Trump’s top donor, Elon Musk, is now leading an effort to slash the federal workforce, including at agencies that oversee or have investigations into his companies.
“We’re living in an age right now where corporations have, uncontroversially, extraordinary influence over our political system,” McMullen said, whether through campaign contributions or lawsuits like the one against Greenpeace. “That’s why I think this case and its outcome should be the concern of every American.”
McMullen is one of several legal experts and law school students who have joined to monitor the trial to ensure it is conducted fairly. He pointed to several troubling developments so far, including mailers that were sent to people in the county where jurors will be drawn from that looked like newspapers and included articles McMullen said were biased in favor of Energy Transfer. He also pointed to the refusal so far by the judge overseeing the case to grant expanded access to the trial, including live-streaming. (Inside Climate News signed on to a letter led by the Reporters Committee for Freedom of the Press seeking a live stream.)
The trial is scheduled to last five weeks.
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Nicholas Kusnetz is a reporter for Inside Climate News. Before joining ICN, he worked at the Center for Public Integrity and ProPublica. His work has won numerous awards, including from the Society of Environmental Journalists, the American Association for the Advancement of Science and the Society of American Business Editors and Writers, and has appeared in more than a dozen publications, including The Washington Post, Businessweek, The Nation, Fast Company and The New York Times.
