The yearslong court battle over a controversial pipeline — a fight so aggressive, it’s threatening to bankrupt Greenpeace USA — has taken a strange legal twist.
Energy Transfer, the company that won a nearly $670 million judgment against Greenpeace earlier this year over protests against its Dakota Access Pipeline, is mounting a full-court press with its latest strategy. The pipeline company and its allies are exhorting North Dakota’s Supreme Court to block a countersuit from an international branch of Greenpeace in the Netherlands.
In other words, Energy Transfer is asking judges in North Dakota to stop a lawsuit filed under the laws of a different country. The details of its efforts at the state’s Supreme Court haven’t been previously reported.
The strategy is unusual, but not unheard-of.
George A. Bermann, a professor at Columbia Law School and expert on transnational litigation, said that courts generally issue international injunctions like this only sparingly because they are seen as interfering with foreign courts.
If the North Dakota court did issue one, enforcing it would be another matter, he said, because of the messy questions about jurisdiction.
Greenpeace International, were it to defy such an order, might face a contempt ruling by a North Dakota court. But if Greenpeace International has no presence in North Dakota, it could be difficult for the court to collect, he said.
“What Greenpeace would have to worry about is whether any jurisdiction in which it has assets would be willing to enforce that order,” Professor Bermann said.
Earlier this year, a jury in Mandan, N.D., ordered Greenpeace entities to pay nearly $670 million to Energy Transfer after a three-week trial over allegations of trespassing, defamation and conspiracy. Greenpeace maintained that it had played only a supporting role in peaceful protests.
Last month, Judge James Gion, who oversaw the trial, reduced the award by nearly half, citing legal technicalities. According to Greenpeace, the judge cut Greenpeace USA’s share to some $280 million, with Greenpeace International, based in Amsterdam and also named in the suit, owing about $65 million.
If the verdict stands, Greenpeace may be forced to shut down its U.S. operations. But Judge Gion still has not finalized it, a crucial step that will allow Greenpeace to formally appeal.
Energy Transfer’s new legal strategy is focused on a separate and novel countersuit, filed against it in the Netherlands. There, Greenpeace International is suing Energy Transfer based on a new European Union directive aimed at reining in what are known as SLAPP lawsuits, or those aimed at stifling free speech. (SLAPP stands for Strategic Litigation Against Public Participation.)
Many U.S. states also have laws against SLAPP suits, but not North Dakota.
In a brief in the Dutch court, Greenpeace International said the powerful and politically connected company had brought the case, and an earlier lawsuit in federal court, precisely to bury its critics in costly litigation. Energy Transfer is led by Kelcy Warren, a Trump donor and billionaire who has spoken bluntly about the case.
The filing referenced comments that Mr. Warren made in a 2017 television interview in which he accused environmentalists of torching equipment and causing millions of dollars in damage. “Everybody’s afraid of these environmental groups and the fear that it may look wrong if you fight back with these people, but what they did to us is wrong, and they’re going to pay for it,” he said.
Vicki Granado, a spokeswoman for Energy Transfer, said the company was “pleased that Greenpeace has been held accountable for its actions and that a jury recognized these were not law-abiding, peaceful protests as Greenpeace tries to claim.” She declined to comment further on the appeal.
Greenpeace International said its only connection to the protests was signing a letter calling on financiers to withhold support for the pipeline. It asked the court to block efforts to enforce the verdict and to force Energy Transfer to pay the expenses it had accrued over years of litigation.
Ashkhen Kazaryan, a senior legal fellow at The Future of Free Speech, a think tank at Vanderbilt University in Nashville, said that the European Union directive takes a different approach than U.S. states with anti-SLAPP laws. In those states, the laws allow judges to dismiss cases early in the legal process if they are deemed to be abusive and involve an imbalance of power between the parties.
But the E.U.’s directive allows parties to sue in European courts for damages caused by litigation. If the Dutch court ruled in Greenpeace’s favor, financial penalties could hypothetically be extracted from Energy Transfer assets in Europe, Ms. Kazaryan said.
Energy Transfer asked Judge Gion in July to block Greenpeace from pursuing the Dutch suit, arguing that it amounted to interference with the American system. Judge Gion denied the request, writing that the U.S. Court of Appeals for the Eighth Circuit, which covers North Dakota, has taken a conservative approach regarding matters in foreign courts. The company then appealed to the justices of the state’s Supreme Court.
Greenpeace International’s lawsuit is “an affront to North Dakota’s sovereignty,” lawyers for the company wrote in a petition filed in September.
In recent days, a host of business groups have filed amicus briefs in support of Energy Transfer’s petition. Among them was the American Energy Association, whose members include Liberty Energy, the fracking company founded by Energy Secretary Chris Wright. Its brief called the suit “a clearly vexatious collateral attack filed for the express purpose of evading domestic liability.”
Daniel Simons, senior legal counsel for strategic defense for Greenpeace International, said the framing of the Dutch lawsuit as an attack on North Dakota’s courts was “mere propaganda.”
The solicitor general of North Dakota, Philip Axt, submitted a brief that did not explicitly support either side, but argued that a state court does have the power to issue international injunctions against lawsuits filed abroad. Mr. Axt pointed to decisions in other federal appellate courts that differed from the Eighth Circuit’s approach.
Heated protests against construction of the pipeline in 2016 and 2017 attracted thousands of supporters from around the world. The pipeline runs close to the border of the Standing Rock Sioux Tribe’s reservation, and under Lake Oahe, which supplies its drinking water.
The tribe has tried for years to shut down the pipeline in court. In March, Chief Judge James E. Boasberg of the U.S. District Court in Washington dismissed the tribe’s most recent lawsuit, which was filed against the U.S. Army Corps of Engineers last year.
This month the tribe reopened its fight, asking the U.S. Court of Appeals for the District of Columbia Circuit to reverse that ruling. It said the pipeline is operating without a crucial easement and without a final environmental impact statement, in violation of federal laws.
“We will not allow our water, sacred sites, or future generations be compromised,” said Steve Sitting Bear, the chairman of the Standing Rock Sioux Tribe.
The pipeline, which carries crude oil from North Dakota to Illinois, is a threat to Native sovereignty and encroaches on lands that the tribe never gave up rights to, the tribe said. The appeal, filed Nov. 5, focused on the risk of oil spills and what it said was a lack of adequate planning for such dangers. The Army Corps of Engineers did not respond to a request for comment.
Karen Zraick covers legal affairs for the Climate desk and the courtroom clashes playing out over climate and environmental policy.
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