Protest Rights Are at Stake as Pipeline Company Brings Greenpeace to Trial

A civil trial commences on February 24 that will determine whether Greenpeace must pay $300 million in damages to Energy Transfer Partners, the corporation behind the Dakota Access Pipeline (DAPL). The lawsuit alleges that Greenpeace “incited” and masterminded the NoDAPL Water Protectors uprising of 2016-2017, in which thousands of Indigenous people and allies gathered on Standing Rock Sioux lands to protest DAPL construction. On the basis of a legally circumspect theory of collective liability, the lawsuit seeks financial compensation for crimes committed by protesters, as well as damages for business relationships frayed by a successful divestment campaign directed at DAPL investors.

In 2016, protests began against DAPL, a pipeline slated to ferry fracked oil underneath a fragile water crossing a mere half mile north of the Standing Rock Sioux Nation. Using tactics ranging from confrontational demonstrations to divestment campaigns, protesters stalled construction, forced environmental reevaluation of the permit and caused investors to pull out of the project. Although Donald Trump approved the pipeline during his first administration in 2017, the movement successfully delayed construction and increased the cost of the project.

After the dust settled, Energy Transfer Partners sought someone to blame. At first glance, Greenpeace was an unlikely target. From the outset, the movement was led by the Standing Rock Lakota/Dakota people. But the law firm behind Energy Transfer Partners’ suit had a playbook ready. A year prior, the firm sued Greenpeace over its advocacy against a forestry company harvesting in a sensitive boreal forest. In 2017, Energy Transfer Partners filed a civil RICO suit alleging that Greenpeace, along with other major environmental advocacy organizations, ran an illegal racketeering enterprise. Written in order to catch slippery members of the Mafia, RICO statutes employ a vague definition of extortion. Corporations have exploited this breadth to pursue constitutionally circumspect cases against activist organizations of all political leanings. In the 2017 suit, Energy Transfer Partners filed an 187-page complaint making a staggering array of allegations, including that Greenpeace facilitated interstate drug trafficking and that Democracy Now! promulgated a disinformation campaign.

That case was thrown out of federal court, but Energy Transfer Partners filed a subsequent lawsuit in North Dakota state court, this time alleging conspiracy and defamation. The suit comprised three major allegations: that Greenpeace made false statements to “incite” protests; that Greenpeace organized and funded property destruction and violence; and that Greenpeace defamed Energy Transfer Partners by making false statements to DAPL lenders and investors. The key ingredient — an aggrieved corporation alleging defamation over First Amendment-protected speech — places this suit squarely within the category of Strategic Lawsuits Against Public Participation (SLAPPs), with an added element of collective liability for protest. Thirty-five states and Washington, D.C. have SLAPP protections, but North Dakota has none.

“Inciting Protest”

In 2016, when Greenpeace received word that Indigenous groups at Standing Rock needed outside support, the organization put boots on the ground in North Dakota. Greenpeace supported the Indigenous People’s Power Project, a nonprofit group that teaches protesters nonviolent direct action tactics.

“We were working to empower others to teach and share skills, particularly around deescalation. Nonviolence is something we care deeply about, and we believed in supporting that,” Deepa Padmanabha, senior legal advisor to Greenpeace, told Truthout.

Conscious of the history of environmental movements ignoring Indigenous activism, Greenpeace sought out the opportunity to play a support role in the NoDAPL fight.

“Big Greens have a problematic history of white supremacy, patriarchy, all of the things,” Padmanabha said, using the term “Big Greens” to refer to large environmental advocacy nonprofits. “And this was an example of how a Big Green could actually be there in solidarity and be an ally for frontline fights led by impacted communities.”

From the point of view of Greenpeace — and many Indigenous organizers — Greenpeace showed up to provide support at a critical juncture, at the upswell of the Sacred Stone protest camp. According to the lawsuit, the direct action training covered how protesters could lock their bodies to construction equipment and form blockades.

Energy Transfer Partners will argue that Greenpeace should be held liable for any illegal conduct of individuals that took place at protests.

Led by Indigenous organizers, protesters blocked roads, locked themselves to construction equipment and held mass demonstrations. At one point, the sheriff of Morton County issued orders to halt construction due to the safety hazard posed by protesters. Delays in construction bought time — time for legal cases to proceed through court, for the movement to grow and for divestment campaigns to proceed.

When police and private security responded to protests by bringing in attack dogs and injuring hundreds by blasting water cannons in subfreezing weather, NoDAPL hit international headlines. At its peak, during Thanksgiving of 2016, several thousand people occupied the Sacred Stone protest camp. Indigenous people from around the country turned out in solidarity with the Standing Rock Lakota/Dakota people. An Indigenous veteran of the 1973 Pine Ridge standoff remarked that these DAPL protests were reminiscent of the American Indian Movement uprising at Wounded Knee.

During the trial, lawyers for Energy Transfer Partners will argue that Greenpeace orchestrated the protests. Both Greenpeace and Indigenous organizers of the movement expressed outrage at the narrative woven by the pipeline company.

“It’s history repeating itself,” said Indigenous NoDAPL organizer Waniya Locke, responding to a question from Truthout about how the lawsuit’s allegations were received among Indigenous communities. “It’s very, very discomforting that they’re trying to erase the Indigenous narrative straight across the boards, from education, to big media, down to this lawsuit.”

In court, Greenpeace will be forced to defend itself against allegations that the organization — rather than Indigenous organizers — led DAPL protests. Energy Transfer Partners will argue that Greenpeace should be held liable for any illegal conduct of individuals that took place at protests, going so far in the complaint as to allege that Greenpeace served as a “front organization” for a particularly militant wing of the movement. Engaging a dangerous theory of collective liability, Energy Transfer Partners’ lawsuit seeks to hold Greenpeace responsible for protesters who threw Molotov cocktails, burned construction equipment and brought knives to protests. Under this theory, organizations and individuals providing training could hold almost unlimited liability for the downstream actions of other people, regardless of whether crimes committed were in violation of the principles espoused. Earlier this year, a district court ruled that a protest organizer could not be held liable for violence committed by an attendee acting against the intent of the organizer. The ruling did not deter Energy Transfer Partners.

Padmanabha expressed concern about the impacts an adverse ruling would have on civil society: “By creating that sort of collective liability, anybody who has any involvement in training, principles of safety, of nonviolence, of deescalation, can be held accountable for anything that happens. That precedent is intended to have a chilling impact.”

SLAPPed for Speech

Retaliation for First Amendment-protected speech is a hallmark of SLAPPs, and Energy Transfer Partners’ suit fits the pattern. Energy Transfer Partners is seeking the last word — and $300 million in damages — on points of political contention between the pipeline company and the Standing Rock Lakota/Dakota people.

At the epicenter of the DAPL fight was concern over the risks to the water supply posed by the pipeline’s crossing under Lake Oahe. The land at issue, aside from being part of broader unceded Lakota/Dakota homelands, also belonged to Standing Rock under the treaty establishing the reservation until 1944, when the U.S. government seized the land under eminent domain. Greenpeace, along with virtually every other organization supporting the NoDAPL struggle, affirmed the Standing Rock nation’s claim to the land. In the suit, Energy Transfer Partners seeks damages over this political — and constitutionally protected — assertion.

“If a member of the Standing Rock Sioux, or really anyone, gets up in public and says ‘this land was stolen,’ that is protected speech,” Sarah Ludington, law professor and director of the First Amendment Clinic at the Duke University School of Law, told Truthout. “Said in the context of a protest, for rhetorical or hyperbolic effect, the Supreme Court has held that that kind of speech is covered by the First Amendment.”

Awarding damages requires proving financial harm, and in laying out its arguments, Energy Transfer Partners seeks restitution for Greenpeace’s role in a divestment campaign to pressure lenders and investors to drop out of the project. In many ways, the suit affirms the success of the movement. As Greenpeace, Indigenous activists, and other protesters (including me) held demonstrations at physical bank locations, encouraged the closure of personal bank accounts and demanded meetings with executives, the dominoes began to fall.

Energy Transfer Partners was forced to field queries from DAPL’s financial backers, and as the campaign escalated, stakeholders began to drop the project. ABN AMRO announced it would not pursue new business with Energy Transfer Partners. Five other banks sold their shares in Energy Transfer Partners and/or the pipeline loan.

In the lawsuit, Energy Transfer Partners seeks retribution for the everyday type of advocacy employed by the divestment campaign. The suit alleges that the rhetoric Greenpeace employed in organizational letters, meetings, social media posts and email campaigns amounted to a defamation campaign impacting relationships with investors and creditors. While Energy Transfer Partners has denied that its suit infringes upon free speech, the suit has been widely condemned as a SLAPP, with ramifications for advocacy and civil society.

“The first thing a libel defense attorney says to a client being sued, is ‘don’t say another word on this matter,’” said Ludington. “These suits are absolutely a way to shut people up.”

Striking a Defiant Posture

The suit has a gloomy outlook in North Dakota, where DAPL protests were assessed largely negatively by surrounding (predominantly white) communities. Ludington noted that North Dakota courts have not made sympathetic rulings toward protesters suing over police misconduct. Earlier this year, a dark money group mailed the potential jury pool fake newspapers maligning the protests and lauding Energy Transfer.

Greenpeace has struck a defiant tone, and will appeal to state and federal Supreme Courts if necessary. The organization launched a “We Will Not Be Silenced” campaign, looping in grassroots supporters and civil society. Over 290 organizations signed a letter of solidarity. (Disclosure: My former employer, a nonprofit organization called Defending Rights & Dissent, is a signatory.) In the face of a SLAPP suit intended to dissuade future advocacy, Greenpeace’s defiant tone sends a critical message to the rest of civil society.

The suit “is meant to silence us,” said Greenpeace USA National Program Director Rolf Skar. “And in response we need to give them the exact opposite, to show that this tactic backfires.”