The stunning $667m verdict against Greenpeace last week is a direct attack on the climate movement, Indigenous peoples and the first amendment.
The North Dakota case is so deeply flawed – at its core, the trial was really about crushing dissent – that I believe there is a good chance it will be reversed on appeal and ultimately backfire against the Energy Transfer pipeline company.
I was part of an independent monitoring team of nine attorneys and four prominent human rights advocates who sat through every minute of the three-week trial, in a nondescript courthouse in rural North Dakota. Energy Transfer sued Greenpeace for alleged damages it claimed derived from the historic Indigenous-led Standing Rock protests in 2016 against the Dakota Access pipeline. Our presence in court was essential given that the company was able to shroud the trial in secrecy. There was no court reporter and there still is no public transcript or recording of the proceedings.
What we observed was shocking. Greenpeace lost, not because it did something wrong, but because it was denied a fair trial.
The legendary US human rights attorney Marty Garbus, a member of our team who has practiced law for more than six decades and who represented Nelson Mandela and Václav Havel, said it was the most unfair trial he had ever witnessed. This is precisely why many of us on the monitoring team believe there is a good chance Greenpeace will not pay the first dollar of the judgment and might actually recoup significant damages from Energy Transfer in a separate case in Europe. That case, currently being heard in Dutch courts, would entitle Greenpeace to compensation based on a finding that the North Dakota case is an illegitimate attempt to squelch free speech.
Many legal observers and first amendment scholars regard the North Dakota case as a Slapp harassment lawsuit. Slapps – strategic lawsuits against public participation – are designed not to resolve legitimate legal claims but to use courts to intimidate, silence and even bankrupt adversaries. By their very nature, they violate the constitution because they trespass on the first amendment right to speech. Allowing these cases to proceed almost always saddles the target with backbreaking legal expenses that can silence even the most resilient leaders and organizations.
This clearly was Energy Transfer’s plan, but the case was never just about Greenpeace. It was about using the organization as a proxy to attack the Standing Rock Sioux’s autonomy, leadership and sovereignty, as well as the broader climate justice movement, which is trying mightily to transition our country to a clean energy economy. The protests and the climate movement’s goals are a direct threat to Energy Transfer’s business model.
That might explain why Kelcy Warren, the founder and CEO of Energy Transfer, said the main purpose of the lawsuit against Greenpeace was to “send a message” rather than to collect money. A major Trump supporter and the mastermind of the lawsuit, Warren once said activists “should be removed from the gene pool”. After he made a large contribution to Donald Trump’s inaugural committee in 2017, the Trump administration quickly approved a key easement for the North Dakota pipeline that had been denied by Barack Obama.
The Greenpeace case had all the telltale signs of an illegitimate Slapp – so much so that it was originally thrown out of federal court in 2019. In that case, Energy Transfer openly claimed Greenpeace had engaged in a racketeering conspiracy and “terrorism” by speaking out against the pipeline and by conducting training in non-violent direct action at the site. The company quickly refiled the case in the more friendly confines of state court. Literally every judge in the judicial district where it was filed recused themselves because of conflicts of interest.
Here are some of the more fundamental problems we observed that clearly violated the fair trial rights of Greenpeace:
-
The jury – the most sacred due process protection available to a defendant – was patently biased in favor of the company. Seven of the 11 people seated had ties to the fossil fuel industry. Some had admitted they could not be fair, but the judge seated them anyway. There was no Native American or person of color on the jury even though issues of Indigenous rights were central to the trial.
-
Morton county, where the trial was held and where many of the protests took place, voted 75% for Trump in the last election and has extensive ties to the fossil fuel industry. In a pre-trial survey, 97% of residents in the county said they could not be fair to Greenpeace. Yet the judge refused repeated requests by Greenpeace to move the case.
-
Energy Transfer ran a major television and online advertising campaign in the county lauding itself in the weeks leading up to the trial. A newspaper called Central ND News, with articles critical of the protests, was also sent to county residents; Greenpeace believed Energy Transfer might have been responsible for it. But the court refused to allow Greenpeace to use court discovery procedures to determine how this unethical campaign to taint the jury pool happened.
-
Adding to the absurdity, Greenpeace was blamed for the entire protest movement even though it played only a minimal role. The protests were led by the Standing Rock Sioux Tribe, on whose ancestral land the Dakota Access pipeline was being built. In fact, only six of the 100,000 people who came to the protests were from Greenpeace – yet Energy Transfer was able to convince the jury to hold the organization responsible for every dollar of supposed damages that occurred over seven months of protests.
-
Secrecy pervaded the proceedings. The court repeatedly refused to open a live stream to the public or to create and release transcripts. A request by media organizations (including the Wall Street Journal and the New York Times) to access the live stream was denied. Thousands of key documents were sealed and thus hidden from public scrutiny.
-
The judge, James Gion, made evidentiary decisions that gutted Greenpeace’s ability to mount a defense. For example, a major expert report showed that the pipeline had leaked roughly 1m gallons of drilling fluids into drinking water sources used by millions of people. Greenpeace lawyers needed the document to debunk the argument that the pipeline was safe, but the judge refused to let the organization use it.
-
The 35-page verdict form was confusing and the results seemed to prove the jury was in fact confused. It appears the exorbitant damages number was calculated by pulling numbers out of thin air – including millions for public relations expenses, private security costs, which were being paid anyway, and refinancing costs due to various banks withdrawing from the project once they learned about the protests. (Lobbying banks is also constitutionally protected advocacy.)
The inability of Judge Gion to manage the case such that Greenpeace’s fair trial rights were respected was evident. It was almost excruciating to watch. It felt more like a choreographed show than an adversarial proceeding. Greenpeace was consistently – and, in our opinion, falsely – portrayed by the Energy Transfer lawyer Trey Cox as a criminal enterprise that exploited Indigenous peoples for its own gain. He used words such as “mafia” and “coded language” to describe the group’s operations. (Cox works for the same law firm, Gibson, Dunn & Crutcher, that Chevron used to orchestrate my 993-day detention after I helped Amazon communities win the $10bn Ecuador pollution case.)
The verdict represents more than a financial blow against Greenpeace. It has huge and very troubling implications for free speech across the nation. The result threatens the rights of religious groups and political organizations. It implicates the rights of churches and charities. If the theory of the case stands, pretty much anyone in the United States can face ruin for exercising their constitutional right to speak on an issue of public importance – including adherents of conservative causes. It’s a corporate playbook that started with Chevron’s legal attacks on me and the Amazon communities in 2009. Gibson, Dunn & Crutcher markets the playbook to its corporate clients.
The case also highlights the Trump administration’s broader attack on progressive activism. From proposed legislation that would allow the treasury department to unilaterally revoke the non-profit status of organizations deemed “terrorism-supporting” to the FBI’s reported plans to criminally prosecute climate groups, the goal is clear: suppress dissent. Greenpeace is in the crosshairs because its brand is global and its success in fighting polluters over the last several decades is outstanding.
This is why it is critical for Greenpeace and its allies to lean into the verdict and issue a call to action to the entire environmental movement and broader civil society organizations. Greenpeace is without question the world’s largest environmental activist group, with chapters in 25 countries. It gave birth to the non-Indigenous part of the modern environmental movement in the early 1970s and captured the imagination of the world by engaging in spectacular and creative actions to save whales in the north Pacific and to stop nuclear testing. Greenpeace needs to be protected in this critical moment.
There is more than a glimmer of hope. A hearing is scheduled for July in Amsterdam in the Greenpeace lawsuit against Energy Transfer. If Greenpeace prevails on appeal in North Dakota and wins in Europe, it might be Energy Transfer paying substantial sums to Greenpeace rather than the other way around.
There are realistic scenarios where Greenpeace emerges from this experience stronger than ever. The key is to keep grinding and calling out this abuse loudly and publicly. The world will respond.
