On Wednesday, a jury in North Dakota found that environmental activist group Greenpeace USA will have to pay $660 million to Dallas-based oil company Energy Transfer for defamation in protests nearly a decade ago.

Energy Transfer sued Greenpeace for "defamation and orchestrating criminal behavior by protestors" at the Dakota Access pipeline, which cuts across Standing Rock Sioux Tribe land. The protests took place in 2016 and 2017, and while there were some incidents of criminal charges for things like destroying and vandalizing pipeline equipment, the majority of the protests were peaceful.

Energy Transfer leveraged this handful of incidents to paint Greenpeace and the protestors as encouraging illegal activity during the protests, leading to the suit in North Dakota civil court.

The lawsuit exhibits all the traits of what are known as Strategic Lawsuits Against Public Participation (SLAPP), which paint protesters with criminal strokes for the purpose of suppressing free speech, dissent, and discouraging future activism. The jury’s decision could have a resounding impact on free speech and public protest, fueling deeper concern from legal observers already ringing the alarm bell about attacks from the current administration on other fronts of free speech.

The Dakota Pipeline Protests & Suits

The Dakota Pipeline (DAPL) is an 1172-mile underground oil pipeline that became operational in 2017. It moves crude oil from North Dakota to Illinois and was constructed across Sioux Tribe land in North Dakota. Greenpeace and the Standing Rock Sioux Tribe opposed the pipeline because of environmental risks and the violation of Indigenous lands. The protests were covered nationally and internationally and became a flashpoint for the climate movement.

Energy Transfer first filed a RICO (Racketeer Influenced and Corrupt Organizations Act) suit against Greenpeace in 2017 in federal court. RICO is a US law that was originally used by the government to go after groups that work together in a pattern of illegal activity. It was mostly a tool used to fight organized crime. In recent years, RICO has expanded to include lawsuits against various entities, including political and activist groups and corporations. This is the same law that was used to take down former Trump lawyer and “RICO pioneer” Rudy Giuliani.

Originally, Energy Transfer accused Greenpeace of a RICO violation, saying that the organization was involved in an organized conspiracy to spread false information and incite legal protest against the company. That lawsuit was dismissed in 2019, but Energy Transfer filed the current identical suit in a much more oil-friendly North Dakota state court.

The suit that was decided this week took a long time to work through. Legal proceedings were complex, and Greenpeace tried to change the venue a number of times due to concerns about finding an unbiased jury in North Dakota, where the economy is dominated by oil & gas production. As The Guardian also mentioned, "Mysterious rightwing mailers, made to look like a newspaper called "Central ND News", that contained articles slanted against the pipeline protest or in favor of Energy Transfer were also sent to residents in recent months, which Greenpeace alleged could taint the jury pool."  

Both the North Dakota Supreme Court and the county court shot down Greenpeace’s request for a change in location.

How Did Greenpeace Get Here?

The lawsuit stemmed from Greenpeace’s involvement in the Dakota Access Pipeline protests. Greenpeace teamed up with indigenous rights groups opposed to the pipeline’s construction. Energy Transfer alleged that Greenpeace and other environmental organizations spread false information, encouraged illegal activity (including damaging and spray painting equipment) and caused significant financial losses for the company.

Greenpeace has maintained that its role was limited to advocacy, and the organization has never been charged with criminal activities related to the protest. Energy Transfer framed Greenpeace’s activism as a “coordinated attack” on its business, a common tactic in SLAPP lawsuits that aim to financially and legally exhaust advocacy groups until they can no longer operate. With the huge financial damages Greenpeace may have to pay, it is not clear whether the organization will be able to continue to operate.

The case that Energy Transfer presented was murky at best. Greenpeace's claims about the environmental danger of the pipeline were widely shared by other organizations, scientists, and indigenous leaders. Leaks and spills from pipelines are very well-documented ecological and environmental disasters, and the DAPL has had multiple spills since its construction in 2017. In the first six months of operation, DAPL reported five separate leaks, for example. Finally, Greenpeace's statements were advocacy-based and focused on matters of public concern, which is protected under the First Amendment of the Constitution.

The ruling sets a dangerous precedent. For one, it could very well bankrupt Greenpeace, though the organization plans to appeal. Legal experts think there is a strong case in favor of Greenpeace's claims (and evidence) based on the First Amendment. If, however, the verdict is upheld, it could open the door for other activist and environmental organizations to face similar lawsuits and shut down legal protest and free speech.

In the meantime, it’s likely that Greenpeace will have to scale back operations and shift its strategies or restructure to protect itself from future legal threats.

SLAPP Cases are on the Rise to Suppress Climate Activism

SLAPP cases are on the rise around the world, particularly in the US, where there is an absence of strong federal protections against them. Most of the cases are brought by industries like Big Oil, against journalists, whistleblowers, and environmental organizations worldwide.

Europe has begun to push back against SLAPP lawsuits with new legislation that protects activists and journalists from abusive lawsuits. The EU’s Anti-SLAPP Directive passed last year and allows for early dismissal of baseless lawsuits and imposes financial penalties on companies that abuse the system.

What happens next in the appeal will be an important milestone in the future of both abusive SLAPP lawsuits and Greenpeace. If Greenpeace loses its appeal, more lawsuits will likely target advocacy groups, journalists, and individuals who speak out against corporate malfeasance and environmental damage.

Set against the backdrop of a world that’s already grappling with the quickly evolving impact of climate change, the legal battle that Greenpeace faces represents more than just a dispute. It's a fight over the fundamental right to free speech, protests, and to hold polluting corporations accountable.

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