A jury decision holding Greenpeace liable for defamation for its role in protesting the Dakota Access pipeline is raising alarms among legal observers about the potential chilling effect on public protest.
On Wednesday, a nine-person jury in North Dakota’s Morton County District Court ordered Greenpeace to pay pipeline developer Energy Transfer more than $660 million in damages. The case is connected to 2016 and 2017 protests against the pipeline and its construction under a reservoir that serves as the primary water supply for the Standing Rock Sioux Tribe.
The decision is a loss for Greenpeace, “but more so for the First Amendment right to speak out, and thus for all Americans,” said James Wheaton, the founder and senior counsel for the public interest law firm the First Amendment Project.
“If huge corporations can do this to one they can do it to everyone,” Wheaton said in an email.
Greenpeace doesn’t have the money to pay the damages, the group’s interim Executive Director Sushma Raman told POLITICO’s E&E News. But the case is not about the money, she said, it is meant to silence the company’s critics.
“You can’t sue a movement, and you can’t bankrupt a movement,” Raman said. “So irrespective of what happened today with the verdict, we are confident that the work will continue.”
Energy Transfer had claimed Greenpeace had tried to stop the pipeline’s construction and that it had paid individuals to protest the project and made false statements about the project.
“The law that can come down in this case can affect any demonstration, religious or political. It’s far bigger than the environmental movement,” said Marty Garbus, a trial attorney who has represented high-profile clients including Nelson Mandela, Daniel Ellsberg, Cesar Chavez, and Václav Havel.
He described the North Dakota district court as allowing Energy Transfer to “run roughshod over the rule of law.”
Garbus is part of a group of independent trial monitors who has been observing the case since it was filed in state court. They said in a joint statement Wednesday that they had observed “multiple violations of due process” that prevented Greenpeace from getting a fair trial.
They alleged that the jury in the case was “patently biased” in Energy Transfer’s favor and said the judge “lacked the requisite experience” to properly rule on the complex First Amendment claims in the case.
Vicki Granado, a spokesperson for Energy Transfer, said that while the company is “pleased that Greenpeace has been held accountable for their actions against us,” the “win is really for the people” of Mandan, North Dakota, “who had to live through the daily harassment and disruptions caused by the protesters who were funded and trained by Greenpeace.”
“It is also a win for all law-abiding Americans who understand the difference between the right to free speech and breaking the law,” Granado said in a statement Wednesday.
Path to appeal
Legal experts said Greenpeace has a good case to appeal the decision, which the organization stated it plans to do. Since North Dakota does not have an appellate level court, the appeal would go straight to the state Supreme Court.
The case may eventually make it up to the U.S. Supreme Court on First Amendment grounds, if Greenpeace loses again before the state Supreme Court.
The case has been cited as an example of a strategic lawsuit designed to discourage free speech, said Blake Klinkner, an assistant law professor at the University of North Dakota. They are often referred to as SLAPP (strategic lawsuit against public participation) lawsuits.
“In many cases, it isn’t as much that you think you’re going to win a lawsuit. It’s just that by filing a lawsuit, in and of itself, that often makes people fearful to speak out, makes people fearful to protest,” Klinkner said.
“That’s one of the concerns that’s been raised here,” he added.
He noted that Greenpeace International, which was also named in the suit, is countersuing Energy Transfer in the Netherlands in an anti-SLAPP case under European law.
“So there’s a chance that, perhaps down the road, relatively shortly, we may actually have a European court verdict that is the opposite saying … this lawsuit [is] solely for the purpose of harassing, intimidating, trying to chill speech, and you’re liable under European law for that kind of conduct,” he said.
Energy Transfer’s legal challenge came after protests against the Dakota Access pipeline dominated national headlines at the end of the Obama administration. The Standing Rock Sioux Tribe had led opposition to the project and warned the crude oil pipeline threatened their nearby reservation and the surrounding environment.
The tribe later sued in federal court to block construction of the pipeline beneath the human-made Lake Oahe in the Dakotas.
The U.S. Court of Appeals for the District of Columbia Circuit ordered further environmental review of the pipeline, but reversed a 2020 order to shut down the pipeline from Judge James Boasberg of the U.S. District Court for the District of Columbia. (Boasberg recently made headlines over his order to block the deportation of migrants from Venezuela, raising the ire of President Donald Trump.)
Wednesday’s decision drew praise from North Dakota Republican Sen. Kevin Cramer, who congratulated Energy Transfer on its “big victory,” in a statement.
“Today, justice has been done with Greenpeace and its radical environmentalist buddies who encouraged this destructive behavior during the Dakota Access Pipeline protests with their defamatory and false claims about the pipeline,” Cramer said. “They can think twice now about doing it again.”
Reporters Lesley Clark, Carlos Anchondo and Mike Soraghan contributed.
This story also appears in Climatewire.
