Greenpeace remains determined to fight the corporate silencing of dissent

This article Greenpeace remains determined to fight the corporate silencing of dissent was originally published by Waging Nonviolence.

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In March, Greenpeace organizers and supporters found themselves waiting for a jury verdict in a North Dakota courthouse. Knowing the decision in this civil court case could force the organization to pay hundreds of millions in damages, many found themselves wondering how things had reached this point.

“We were still asking, why are we even in this courtroom?” said Madison Carter, a spokesperson for Greenpeace USA.

Pipeline builder Energy Transfer launched the lawsuit in 2019 against Greenpeace USA and Greenpeace International, but its allegations — of defamation, false statements to banks, and aiding and abetting property damage — stemmed from the 2016 mass protests against the Dakota Access oil pipeline at Standing Rock. Greenpeace flatly denies all the charges.

As Carter and others watched the trial unfold, their sense of puzzlement only grew. The Standing Rock protests were an almost entirely peaceful affair, with Indigenous water protectors and their allies responding nonviolently to a police force that included water cannons and attack dogs.

What’s more, Greenpeace’s presence at the protests did not reflect a group seeking the limelight. Its role in the Indigenous-led protests was basically that of a supporting side actor. And yet, the lawsuit effectively accused it of masterminding the Standing Rock protests from behind the scenes.

“This movement isn’t about Greenpeace, it’s about Indigenous voices,” Carter said. “It’s a shame that in this trial, people are seeing just our name in the headline. It’s erasing the Indigenous leadership that was the true impetus for the movement.”

Energy Transfer’s lawsuit has the look of a SLAPP suit — the term for cases designed to discourage dissent against corporations’ activities — with Greenpeace being singled out as a convenient scapegoat. As one of the few large environmental groups that supports nonviolent direct action, Greenpeace has long been a target for corporations that want to shut down protest. As such, how the organization’s supporters and the broader climate movement push back against the legal attack could have far-reaching implications for other nonviolent social movements.

A complicating factor is that — in staunchly conservative, pro-fossil fuel Morton County, North Dakota, where the trial took place — a fair hearing was always going to be a difficult proposition.

Prominent environmental lawyer Steven Donziger — who was himself once the target of a SLAPP suit — organized a group of attorneys to observe the Greenpeace trial proceedings. As he wrote in an email to supporters, “Prior to the trial, 97 percent of county residents admitted they could not be fair if asked to be jurors, but the pro-industry judge refused to move the trial to a suitable venue.”

In March, the jury returned a verdict demanding Greenpeace entities pay over $660 million to Energy Transfer, an amount that — if approved by the court — could force the organization to close its doors in the U.S. Last week, Greenpeace formally asked District Judge James Gion to reduce the sum. It also intends to appeal the jury’s decision to the North Dakota Supreme Court.

“Everybody should be watching this case because it threatens not just climate organizations, but anyone involved in protest,” Carter said. “We’re asking people to join us in what comes next — because this verdict won’t be the end of the story.”

A ‘test dummy’ case

At the height of the Standing Rock protests in 2016, some 10,000 people camped in the planned path of the Dakota Access Pipeline, which crossed under a Missouri River reservoir essential to the Standing Rock Sioux Tribe’s water supply. Members of that tribe and the neighboring Cheyenne River Sioux built an encampment to physically impede pipeline construction, calling on supporters from all over the U.S. to join them.

Over the next several months, thousands of people including members of almost 200 Indigenous nations responded to the invitation, traveling to Standing Rock to lend their support. National climate groups urged supporters to participate in the nonviolent, Indigenous-led protests.

Countless organizations, from green groups to churches to student delegations, gave assistance to Standing Rock by donating supplies, volunteering time and resources, or sending members to participate in the encampment. For its relatively minor part, Greenpeace sent a delegation of nonviolent direct action trainers from the Indigenous Power Project.

The protests eventually led to the Dakota Access Pipeline being briefly halted by the outgoing Obama administration. This decision was swiftly reversed by the Trump administration in 2017. Although the pipeline was ultimately built, Standing Rock drew national attention to the issues at stake, including Indigenous sovereignty and tribal opposition to large energy projects. Several other major oil and gas pipelines have been opposed by similar encampments since — posing a potentially existential threat to the fossil fuel industry, which can no longer count on being able to build large projects without delays caused by activists.

All this likely explains the decision by Energy Transfer’s corporate officials to mount a lawsuit that would punish groups with a presence at Standing Rock. In 2017, the company filed a suit against Greenpeace and several other organizations, but it was thrown out by a federal judge in 2019.

“So, they filed almost exactly the same suit in a North Dakota state court days later,” Carter said.

The state court case only names Greenpeace entities as defendants, not the Standing Rock Tribe or any other non-Greenpeace organizations. Energy Transfer CEO Kelcy Warren has said publicly that the suit’s primary objective is not to recover lost damages, but send a message to environmental groups.

“We’ve fully believed from the beginning we were being used as a test dummy, to see if billionaire corporations can successfully target organizations doing things they don’t like,” Carter said.

The jury’s decision to side with Energy Transfer was disappointing for climate activists, but not surprising. The real test will come in the months ahead as climate and environmental groups show how effectively they can unite to fight the lower court decision on appeal. A final, higher-court ruling against Greenpeace could bankrupt the organization in the U.S., but the most worrying part may be the precedent it would set for other organizations.

“We’ve already been forced to spend millions fighting this SLAPP suit,” Carter said. “That’s a lot of money for us — but could a local Planned Parenthood chapter, for example, withstand this kind of attack at all? We don’t want them to have to ask that question.”

Not the end of the fight

From its earliest history, Greenpeace has fought back against attacks from polluting interests. In that sense, the legal assault from Energy Transfer is part of a long line of attempts by corporations and governments to shut the organization down.

“For us, this is almost on a par with the attack on the Rainbow Warrior,” said Daniel Simons of Greenpeace International, referring to the notorious 1985 bombing of a Greenpeace vessel by the French government. “Energy Transfer is trying to destroy both Greenpeace in the U.S. and our global coordinating network.”

However, Greenpeace organizations aren’t a precarious set of dominoes that can easily be toppled together. For one thing, Greenpeace International’s involvement at Standing Rock was even smaller than that of Greenpeace USA, essentially amounting to signing an open letter in support of the protests alongside hundreds of other organizations. It’s also unclear how a U.S. court judgement against Greenpeace’s international arm could be enforced.

“Our assets are located in the Netherlands,” Simons said. “To seize any of them, Energy Transfer would have to get a favorable judgement from a Dutch court — which is unlikely, because of the criteria for recognizing a foreign judgement here. The trial has to have been fair and the judgment consistent with Dutch policy, including E.U. human rights protections.”

In February, Greenpeace International filed its own countersuit against Energy Transfer, under an E.U. anti-SLAPP suit law passed just last year. It is an example of how the climate movement is not only fighting back against Energy Transfer, but going on the offense to show there are consequences to attacking the right to protest.

Around 500 organizations representing millions of people have signed an open letter opposing Energy Transfer’s lawsuit, and many prominent activists have spoken out in support of Greenpeace.

“Throughout this ordeal we’ve been met with incredible support from the ground, from Indigenous allies to the Unitarian Church to other local residents,” Carter said.

Greenpeace USA plans to appeal the North Dakota verdict to the state’s five-judge Supreme Court, where the organization hopes to get a fairer hearing than at the jury trial. While some state charges can’t be heard at the federal level, others involving First Amendment issues can potentially be taken to the U.S. Supreme Court itself.

“We’ll take as many things there as we can, if we have to,” Carter said.

Greenpeace is raising money for its Warrior Defense Fund, which helps cover legal costs and other expenses associated with its court fight. The organization also hopes people throughout the climate movement will help spread the word that the pushback against Energy Transfer continues.

“We need to turn outrage into activism,” Greenpeace USA’s National Campaigns Director Rolf Skar said in a webinar for supporters soon after the jury announced its verdict. “We need as many people as possible to know this is not the end of the fight.”

Organizers like Skar and Carter also hope the Greenpeace case draws attention to the wider need for SLAPP suit reform in the U.S. Thirty-three states plus Washington, D.C. now have anti-SLAPP statutes that would likely have prevented a case like Energy Transfer’s from moving forward there. However, there is no such law in North Dakota or at the federal level.

While anti-SLAPP legislation is unlikely to advance under the current Congress, in the long term it could prove an important front in the fight for the right to protest. In December, a bipartisan group of senators introduced a federal anti-SLAPP bill known as the Free Speech Protection Act.

The next step in the unfolding court case will be a May 27 district court hearing on whether to reduce the size of the jury’s award to Energy Transfer, which Greenpeace says is larger than that allowed by state law. Once a final district court judgement is entered, Greenpeace plans to appeal the jury’s decision to North Dakota’s highest court.

“We believe very strongly in our case,” Carter said. “At the North Dakota Supreme Court, it will be considered by a panel of people who have studied state law for a very long time, and we’re hopeful they will rule in our favor. If that doesn’t happen, we’ve already said that’s not going to be the end.”

This article Greenpeace remains determined to fight the corporate silencing of dissent was originally published by Waging Nonviolence.

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