By: Mary Steurer (ND Monitor)
Greenpeace wants a North Dakota judge to reduce the nearly $667 million in damages it was ordered to pay the developer of the Dakota Access Pipeline in March, arguing that the award is excessive and unreasonable.
A Morton County jury handed down the sum following a more than three-week trial earlier this year. Jurors found the environmental group at fault for damages related to protests against the pipeline in North Dakota in 2016 and 2017, and for publishing defamatory statements that harmed Energy Transfer’s business.
Greenpeace was one of many activist groups that backed the movement, which drew thousands to rural south-central North Dakota to protest in solidarity with the Standing Rock Sioux Tribe.
Greenpeace denies Energy Transfer’s allegations and says the company only brought the lawsuit to chill environmental activism. The defendants have yet to appeal.
In the meantime, attorneys for Greenpeace have asked Southwest Judicial District Judge James Gion to slash the nearly $667 million award, claiming it exceeds statutory caps on damages and that the verdict is riddled with inconsistencies.
“This is the poster child of where the court needs to step in,” Steven Caplow, an attorney representing Greenpeace, said in a Thursday morning remote hearing.
Energy Transfer says Gion should let the jury’s award stand. Trey Cox, an attorney representing the pipeline developer, called the damages “consistent with the evidence produced at trial and the law of the state of North Dakota.”
In North Dakota, a punitive damage award cannot exceed two times the compensatory damage award, or the amount granted to make up for financial losses a party suffered.
Greenpeace and Energy Transfer disagree as to whether the verdict meets this requirement. Caplow argued that the punitive damages must be reduced by roughly $43 million to be consistent with state law, while Cox said the damages don’t exceed the cap and ought to be left in place.
Greenpeace also claims the award includes costs that should actually be attributed to Energy Transfer or other third parties. Greenpeace maintains it only had six employees visit the protest camps, and that its presence was small compared to the many other activist groups that supported the movement.
Caplow argued that Energy Transfer without sufficient evidence is holding Greenpeace responsible for all damages the company incurred in connection to the protests. He said the award unfairly compensates Energy Transfer for expenses it sustained before any Greenpeace employees set foot in North Dakota, for example.
Greenpeace also alleges the jury form — which the jurors had to fill out to issue their verdict — was flawed in a way that inflated the damages attributed to the environmental group.
Before the jurors deliberated, Gion directed them to consider whether each damage Energy Transfer claimed was directly caused by Greenpeace, or whether and to what extent they resulted from the actions of another group. Despite this being part of the instructions, there wasn’t space on the form for the jury to conduct this analysis, Caplow said.
That meant jurors were deprived of an opportunity to voice whether they believe Energy Transfer or other groups shared responsibility for any of the $667 million award, Caplow argued.
Cox said Greenpeace could have proposed changes to the form to address this issue, but didn’t.
Greenpeace also asked Gion to remove hundreds of millions of dollars of defamation-related damages, claiming the award is not supported by the evidence presented at trial. The jury awarded Energy Transfer damages for statements Greenpeace published about the pipeline between November 2016 and June 2018.
The environmental group maintains that none of the statements are defamatory, but also says that even if they were, they cannot be held solely responsible for defamation. Greenpeace says the statements originated with other sources — including the Standing Rock Sioux Tribe — and were circulated by hundreds of other outlets well before it published anything about the pipeline.
Additionally, Greenpeace says a significant portion of the $667 million includes compensation for damages Energy Transfer did not formally request relief for, including some Greenpeace says the company referenced during trial but didn’t claim in its written complaint.
Energy Transfer disputes the notion that Gion has discretion to reduce the jury’s award.
Energy Transfer’s lawsuit is against three Greenpeace entities — Greenpeace USA, Greenpeace International and Greenpeace Fund. Greenpeace USA was found at fault for most of the claims brought by Energy Transfer. The jury did not find Greenpeace International and Greenpeace Fund responsible for on-the-ground harms committed by protesters, though it did find those entities responsible for defamation and interfering with Energy Transfer’s business. Additionally, the jury found Greenpeace USA and Greenpeace International liable for conspiracy.
Matt Kelly, an attorney representing Greenpeace Fund, said during Thursday’s hearing that the award against the organization should be tossed out. The jury ordered Greenpeace Fund to pay roughly $130 million despite the fact that it did not find the organization at fault for most of the major claims in the case, Kelly said.
“We were forced to litigate for seven years on claims where there was no basis for any liability against Greenpeace Fund,” Kelly said during the hearing. “The idea that we should be forced to bear those costs, at this point, is ridiculous.”
Greenpeace International in court filings argued similarly that the nearly $132 million in damages it was ordered to pay should be dropped.
Energy Transfer says that the awards are valid because the jury found both of the organizations at fault for interfering with the company’s business.
Gion took the motion under advisement. Greenpeace in separate motions has asked Gion to fully reverse the jury’s verdict. The parties are scheduled to reconvene for another hearing on May 27.
Greenpeace USA has announced its intent to appeal the verdict to the North Dakota Supreme Court.
