NEW YORK CITY, NY – A fossil fuel company’s potential victory in a $300 million lawsuit against Greenpeace has massive implications on what could happen to free speech rights in the U.S., according to the Guardian’s Nina Lakhani and Rachel Leingang in Fossil fuel firm’s $300m trial against Greenpeace to begin: ‘Weaponizing the judicial system.’
In late February, the lawsuit against Greenpeace opened in rural North Dakota, Lakhani and Leingang reported, noting the case has been called “baseless, bad faith litigation that threatens free speech” by officials familiar with constitutional rights.
Dallas-based Energy Transfer Partners, an oil and gas company giant, has filed the lawsuit against Greenpeace, accusing the organization of defamation and orchestrating criminal behavior, in reference to the anti-pipeline protests of 2016 and 2017, Lakhani and Leingang stated.
The Guardian detailed that the 2016 and 2017 protests were organized by the Standing Rock Sioux tribe and received the support of other Sioux tribes and over 300 sovereign tribal nations.
After Energy Transfer’s security used pepper spray and attack dogs against nonviolent protesters, the Guardian added, people across the country and internationally were enraged and decided to stand in solidarity with Standing Rock.
This gave way to an international movement, where thousands participated in the DAPL (Dakota Access Pipeline) protests, added the Guardian, noting among the supporters was Greenpeace, a non-profit group that agreed with Standing Rock’s position in the anti-pipeline demonstrations.
Energy Transfer’s main allegation, reported Lakhani and Leingang, is that thousands of protestors “were ‘incited’ to come to North Dakota thanks to a ‘misinformation campaign’ by Greenpeace.”
Though the lawsuit has been denounced as a strategic move on Energy Transfer’s part, the company is moving forward with the $300 million case, which threatens to bankrupt Greenpeace US, claimed the Guardian, explaining the jury trial, estimated to span five weeks, would commence Feb. 24 in Mandan in Morton County, ND.
The result of the lawsuit has more significant implications, however. As Lakhani and Leingang wrote, “the biggest impact could be a chilling effect on free speech and activism more broadly.”
The authors quoted Kirk Herbertson, an attorney and the director for advocacy and campaigns at EarthRights International, who stated, “This case is an emblematic example of a SLAPP [Strategic Lawsuit Against Public Participation] lawsuit—a way of weaponizing the legal system by wealthy and powerful people to silence their critics by dragging them through long, stressful, expensive litigation where winning is almost irrelevant.”
“This was not a Greenpeace event,” Herbertson said, about the protests at Standing Rock. “There is nothing in the court filings that show Energy Transfer suffered actual harm due to actions by Greenpeace.”
Lakhani and Leingang wrote that Herbertson reiterated that the case is “a trophy hunt,” a way to silence free speech for personal gain rather than a good faith attempt to seek reparations for the damage Energy Transfer claims to have suffered.
In 2017, Energy Transfer filed a RICO lawsuit against Greenpeace, alleging federal racketeering and state tort claims, the Guardian wrote, noting Kelcy Warren, the company’s founder and major Trump campaign donor, told CNBC Energy Transfer was “greatly harmed” by Greenpeace.
Warren stated, “Everybody’s afraid of these environmental groups and the fear that if you fight back it may look wrong…but what they did to us is wrong and they’re going to pay for it,” in the Guardian report.
Lakhani and Leingang noted previous statements made by Warren show he opposes environmental activists, and has a history of “relentless pursuit against green groups.”
According to Lakhani and Leingang, six years after the protests, this will be the first case in the new Trump administration testing the confines and freedoms of the First Amendment.
At the center of the lawsuit are nine statements Greenpeace made during the Standing Rock protests. The Guardian writes none of these statements were original to Greenpeace, and three were written by a different organization.
However, as Lakhani and Leingang commented, Energy Transfer is seeking to hold Greenpeace liable for those statements and the actions taken by protestors, which have no proven connection to the organization.
The Guardian cited James Wheaton, a journalism law professor at Stanford and UC Berkeley, who said, “Greenpeace is a great big target. If you’re trying to send a message to the world, go after Greenpeace.”
Lakhani and Leingang add supporters of Greenpeace recognize the lawsuit to be meritless, with more than 330,000 people and 430 organizations, including notable ones such as Amnesty International, signing an open letter denouncing the lawsuit as meritless– “an attempt to rewrite history by claiming that Greenpeace orchestrated what was an Indigenous-led movement.”
Even before the protests of 2016 and 2017, the Standing Rock tribe opposed the pipelines, which the Guardian writes was “a violation of its sovereignty as it crosses unceded historical and sacred Sioux territorial lands.”
In October, the tribe filed a lawsuit, and want a federal court to shut the pipeline down, detailed Lakhani and Leingang.
Scott Wilson Badenoch, a former chair of the American Bar Association’s Environmental Justice Committee, opined to the Guardian, “The tribe was 100% responsible and autonomous in their decision making and how they protested.”
Badenoch adds that “the jury pool seems to be impossibly tainted,” wrote Lakhani and Leingang, who report Badenoch has worked as an international trial monitor, and said cases in Cambodia and Ecuador were easier to monitor than this one, exemplifying the bad faith present in this SLAPP suit.
Due to concerns about judicial bias and violations of due process, Badenoch and a team of attorneys—which include respected members and Indigenous rights lawyers—are to monitor this case closely, writes Lakhani and Leingang.
The Guardian authors explain Judge James Gion was assigned to the case from a different jurisdiction in North Dakota after every other judge in Morton County recused themselves, and Judge Gion denied requests from Greenpeace’s legal team to move the case to a different court because of concerns about jury bias.
Indeed, 75 percent of voters in Morton County voted for Trump in the latest election, who ordered an expedited review of the DAPL projects in his first term, claimed Lakhani and Leingang.
The courtroom has limited seating for observers, so Greenpeace filed a motion asking the court to livestream proceedings, and the trial monitoring committee also requested livestream proceedings. Lakhani and Leingang report that Judge Gion denied the motion and the request, ruling that livestreaming would interfere with Energy Transfer’s “right to a fair trial.”
Lakhani and Leingang write Greenpeace continues to be concerned about potential judicial and jury bias. And, recently, mysterious rightwing mailers have arrived at the homes of residents in Morton County that Greenpeace claims could further taint the jury pool.
The mailers, which look like a newspaper, are dubbed “Central ND News” and contain articles portraying Energy Transfer in a favorable light, backing the use of fossil fuels, wrote the Guardian.
Lakhani and Leingang include an article from the “Central ND News,” which is an interview of a former protestor who now “says she believes the protestors created ‘a local ecological disaster’ and approves of the pipeline.”
Greenpeace wanted to investigate whether the mailers were being funded by Energy Transfer, but Judge Gion denied this request for discovery, stated Lakhani and Leingang.
However, ExxonMobil reported Kelcy Warren, Energy Transfer’s CEO, donated to a political action committee that paid a publishing company associated with the group behind the mailer, noted Lakhani and Leingang.
Though he denied Greenpeace’s requests and motions multiple times, Judge Gion allowed Energy Transfer to seal evidence that included details about the pipeline’s safety, the Guardian reported, and Lakhani and Leingang explained that public safety had initially raised concerns among the Standing Rock tribe and led them to protest for the pipeline shutdown.
Leaks in the pipeline could contaminate Lake Oahe, the community’s primary water source. Energy Transfer has “a chequered environmental health and safety record, and was responsible for the worst pipeline fuel leaks in 2024,” reported Lakhani and Leingang.
In the case, Greenpeace is being represented by Davis Wright Tremaine, a firm known for taking First Amendment cases concerning free speech, though Energy Transfer claims that is not what the lawsuit is about, said the Guardian, noting Energy Transfer claims, “It is about them not following the law.”
Lakhani and Leingang stated that Energy Transfer is being represented by Gibson Dunn & Crutcher, which represented Chevron against Steven Donziger in a landmark pollution case.
According to Lakhani and Leingang, this is not the first time CEO Warren has issued a SLAPP lawsuit. He filed suit against Texas lawmaker Beto O’Rourke in 2021, after O’Rourke critiqued Warren’s profits.
Earlier in February, Greenpeace International filed a lawsuit in a Dutch court to recover “all damages and costs it has suffered as a result of ET’s back-to-back, meritless lawsuits,” wrote Lakhani and Leingang.
This case established a new European law to curb malicious lawsuits used to silence journalists and activists, said the Guardian, adding, it is a step forward for Europe, as opposed to the U.S., where two bipartisan efforts to pass federal anti-SLAPP laws have not led to any new progress.
