By: Mary Steurer (North Dakota Monitor)
Attorneys for Greenpeace argued this week that a jury’s decision ordering it to pay $667 million to the developer of the Dakota Access Pipeline cannot stand.
A Morton County jury delivered the verdict on March 19 after more than three weeks of trial. Jurors found the environmental group responsible for damages related to anti-pipeline protests in North Dakota in 2016 and 2017, as well as for publishing defamatory statements about Energy Transfer.
Greenpeace says the jury’s decision was not based on fact, but bias against the protest movement.
“What the verdict in this case reflected, your honor, is the community’s desire to punish someone who was involved in the protests,” said Everett Jack, an attorney representing Greenpeace’s U.S. affiliate.
The arguments followed a hearing earlier this month during which Greenpeace asked Southwest Judicial District Court Judge James Gion to reduce the $667 million award if he moves forward with a judgment against the environmental group.
Energy Transfer wants Gion to uphold the jury’s decision in full.
The award includes more than $200 million of compensatory damages — or money meant to make the plaintiffs whole for financial harms — and another roughly $400 million in punitive damages.
Energy Transfer’s core argument is that Greenpeace trained protesters to wage violent attacks to stop the Dakota Access Pipeline and that it deliberately published false statements to sabotage the company’s business.
Greenpeace was one of many activist groups that sent representatives to south-central North Dakota to protest in solidarity with the Standing Rock Sioux Tribe. It denies Energy Transfer’s allegations and says the lawsuit is an attempt to discourage environmental activism.
During a Tuesday hearing, attorneys representing the environmental group doubled down on their claims that Energy Transfer presented no concrete evidence during the trial that Greenpeace caused the company to suffer financially.
The lawsuit is against three Greenpeace entities: Greenpeace International, Greenpeace USA, and Greenpeace Fund, its United States-based fundraising arm.
Only Greenpeace USA had employees at the protests. Greenpeace USA says it had six staff members visit to provide peripheral support to the Indigenous-led demonstrations, including supplies and nonviolent trainings.
Energy Transfer attorney Trey Cox argued that Gion has no reason not to honor the jury’s verdict.
Cox said the acts the jury found Greenpeace liable for — including defamatory speech, trespassing and abuse of property — do not count as constitutionally protected speech.
“They’re trying to wrap themselves in the First Amendment,” he said.
Cox said Greenpeace is willfully ignoring documentation Energy Transfer presented to the jury linking Greenpeace personnel to attacks against the pipeline, and that the jury’s decision is the most important indicator of the evidence’s credibility.
Attorneys also asked Gion to toss the jury’s verdict finding the three organizations liable for defamation. Energy Transfer alleges that Greenpeace published nine defamatory statements about the Dakota Access Pipeline that harmed the energy company’s business relationships.
In the United States, the standard for proving defamation claims is high — especially for individuals and organizations in the public eye.
Greenpeace attorneys said the nine statements don’t meet this threshold for multiple reasons.
For one, each of the nine statements was either factually true or reflected opinions about what happened at Standing Rock, Jack said.
Energy Transfer also did not demonstrate that Greenpeace made the statements knowing they were false or with “reckless disregard” for their veracity, which are other key standards required for proving defamation, he added.
Greenpeace has also said it was not the first to circulate the statements, and that they were contemporaneously published by hundreds of other organizations and media outlets.
Judges must act as the “gatekeeper” on defamation claims to make sure the decision does not violate free speech rights, Adam Caldwell, an attorney representing Greenpeace International, argued. This standard was set in the landmark U.S. Supreme Court case on defamation New York Times v. Sullivan, he said.
Jack also argued that under North Dakota law, proving a defamation claim requires that a third party testify that they believe the statements in question are defamatory. He said none of Energy Transfer’s witnesses fulfilled this requirement.
He pointed to the testimony of Greenpeace employees who said they believed the statements were true and came from credible sources.
Cox said jurors likely rejected this testimony as unconvincing.
“Given the very large exemplary damage award, we can readily infer that this jury found these witnesses to be liars,” Cox said. “We found them to be concealing things, to be hiding things, to be non-credible.”
Greenpeace International and Greenpeace Fund — which does not engage in organizing activities — say Energy Transfer has no right to involve them in the case. Neither had any personnel visit North Dakota.
Greenpeace International says it is not subject to the court’s jurisdiction because it is a Netherlands-based organization that was not involved in the protests.
“The only evidence was affirmative evidence from International that it had never set foot in North Dakota,” Caldwell said. “It’s a textbook case of lack of personal jurisdiction.”
While Greenpeace International did sign onto a letter that included two of the statements the jury found defamatory, it was one of more than 500 signatories, he said.
Greenpeace Fund similarly said there was no evidence linking it to the case.
“We shouldn’t be here,” said Matt Kelly, an attorney representing the organization.
Energy Transfer has argued that Greenpeace Fund and Greenpeace International conspired with Greenpeace USA on its anti-pipeline efforts. The jury found Greenpeace International and Greenpeace USA liable for conspiracy, but not Greenpeace Fund.
Gion took the motions under advisement.
The parties also recently presented arguments on a separate set of motions asking Gion to reduce the jury’s nearly $667 million award against Greenpeace. Greenpeace claims the award exceeds statutory caps on damages and that the verdict is riddled with inconsistencies.
If the jury’s decision is allowed to stand, defendants have the option to appeal the verdict to the North Dakota Supreme Court. Greenpeace USA and Greenpeace International have disclosed their intent to appeal.
