On February 24, a trial will begin in a North Dakota court in a case that has drawn the attention of free speech and civil liberties advocates across the country. The lawsuit tests the ability of large corporations and billionaires to use the courts to silence their critics’ constitutional rights. The outcome could set a precedent with far-reaching implications, potentially chilling free speech on a broad scale.
Energy Transfer, a Texas-based fossil fuel company, has sued Greenpeace, a renowned environmental nonprofit organization, for $300 million for participating in protests led by the Standing Rock Sioux Tribe against the company’s Dakota Access Pipeline in 2016-2017. The eye-popping amount could bankrupt Greenpeace.
The trial arrives at a delicate moment when fossil fuel companies are increasingly using legal threats that have the effect of stifling environmental activism and other forms of free speech. In the United States, this trend coincides with the Trump administration’s aggressive rollback of environmental protections and fast-tracking of hundreds of fossil fuel projects. There is a growing concern that those who speak up about fossil fuel projects that harm communities could face severe retaliation.
The Dakota Access Pipeline has become a widely known symbol of corporate abuse
The Dakota Access Pipeline is a hazardous liquid pipeline that transports crude oil for 1,172 miles from oil fields in North Dakota to a depot in Pakota, Illinois. Along the way, it crosses beneath a lake that serves as the primary source of drinking water for the Standing Rock Sioux Tribe.
In 2016, before construction was completed, the Tribe began to raise concerns about the risks that the pipeline posed to their water supply. The Tribe also argued that the pipeline would violate the terms of the Great Sioux Nation’s treaties with the U.S. government. Tribal members began to set up prayer encampments near the proposed water crossing, while youth from the tribe organized a 500 mile relay to deliver a letter to the U.S. government. The Tribe also filed a lawsuit to block approval of the pipeline.
Soon, their protests grew into a worldwide movement. Tens of thousands of representatives of other Indigenous communities, activists, and civil society organizations traveled to Standing Rock. Millions of others around the world joined online campaigns to halt the project.
The protests were overwhelmingly nonviolent but had moments of heightened tension. Some unknown individuals reportedly damaged or destroyed some construction equipment and pipeline infrastructure. Police and security personnel hired by Energy Transfer responded to the protests with numerous arrests while allegedly using militarized counterinsurgency tactics and excessive force, including the use of water cannons in freezing conditions.
In the end, the project went ahead. President Trump – who reportedly had a shareholder interest in the pipeline while the protests took place – approved the project early in his first term. Construction was completed in June 2017.
Energy Transfer used a well-known legal tactic against Greenpeace
In August 2017, soon after the pipeline became operational, Energy Transfer (then called Energy Transfer Partners) sued Greenpeace and others in federal court, alleging $300 million in damages and claiming that Greenpeace had orchestrated the protests. This came as a surprise to many who had been following the situation. Greenpeace was one of hundreds of organizations that supported the protests and did not play any sort of prominent or leadership role. The federal court dismissed that lawsuit in February 2019, but Energy Transfer promptly filed a new lawsuit in North Dakota state court. The litigation has dragged forward and is heading to trial six years later.
The case has become a leading example of a strategic lawsuit against public participation, or SLAPP, in which a powerful corporation or individual takes advantage of the high costs, slow speed, and psychological stress of the litigation process in order to silence their critics.
By bringing this lawsuit, Energy Transfer has put a spotlight on its own record
The risk with litigation, of course, is that both parties’ actions may come to light. Both Greenpeace and Energy Transfer would have disclosed extensive documentation as part of the discovery process before trial. Late last year, Greenpeace’s lawyers asked the court to penalize Energy Transfer for allegedly attempting to withhold information about its pipeline safety record. As the trial proceeds, we can expect to learn much more about Energy Transfer’s behavior in North Dakota and in other communities where it operates around the United States.
According to its website, Energy Transfer is a $68 billion corporation that operates 130,000 miles of pipelines in the United States with assets in 44 states. Often, oil and gas pipelines do not exist in enclosed spaces – they can cut through areas like families’ backyards, communities’ drinking water sources, farmers’ crop fields, schools, and public parks where children play – and spills can occur at any of these points. As a result of this lawsuit, there may be heightened scrutiny of Energy Transfer’s environmental practices and track record in communities where it operates.
In the seven years since Energy Transfer first sued Greenpeace, numerous allegations and reports have arisen about the company’s record:
- The Standing Rock Sioux Tribe reviewed the safety record of Energy Transfer and its related companies and concluded that they have the overall worst spill record among hazardous liquid pipeline operators in the United States. (See also this article in Bloomberg.) According to a legal complaint that the tribe filed in October 2024, the company experienced at least 66 “significant incidents” – almost one per month – from 2017 to 2023, spilling more than 2 million gallons of oil and causing property damage of almost $57 million. Likewise, in an April 2018 report, Greenpeace found that Energy Transfer and its related company Sunoco had reported 527 incidents of hazardous liquid spills at its pipelines between 2007 and 2017, an average of one spill every eleven days.
- In October 2022, Energy Transfer pled no contest and was convicted of 23 criminal violations in Pennsylvania. The crimes included using unapproved (i.e. toxic) drilling fluid additives, failing repeatedly to report environmental incidents, and discharging industrial waste into Pennsylvania waterways. Soon after, the U.S. Environmental Protection Agency proposed to debar Energy Transfer, which had the effect of immediately preventing the company from receiving federal contracts and assistance for an indefinite period – an effort we expect the Trump Administration to try to reverse.
- In 2021, the U.S. Federal Energy Regulatory Commission (FERC), which regulates interstate pipelines, proposed that Energy Transfer pay a $40 million fine (later increased to $60 million) for allegedly using unapproved, toxic chemicals while drilling under the Tuscarawas River in Ohio and improperly disposing of the contaminated mud. Years later, the decision on whether to impose the fine remains unresolved.
- In February 2021, Texas experienced a disastrous winter storm that left millions without power for days during dangerously cold weather conditions. Hundreds died as a result of the power outages. Gas became scarce and prices spiked up to 15,000% above their normal rates. Accusations of price gouging arose against several fossil fuel companies, including Energy Transfer. Energy Transfer was among the biggest earners, reportedly earning $2.4 billion from selling its gas at elevated prices during the storm.
- A few months later, in June 2021, as Texas government officials considered policy reforms to respond to the power outages, Energy Transfer’s executive chairman Kelcy Warren donated $1 million to the Texas governor. The governor later signed a series of laws purportedly to resolve the power grid issue but did not include any reforms or oversight of the fossil fuel industry. When Texas politician Beto O’Rourke accused Warren of corruption and extortion, Warren responded with a retaliatory SLAPP lawsuit – which was later dismissed by Texas courts as a violation of O’Rourke’s First Amendment rights.
- A political donation by Warren also raised eyebrows. By late 2016, the U.S. government had withheld approvals for Energy Transfer to complete construction of the Dakota Access Pipeline. E&E News (Politico), Salon, and several other media outlets observed that Warren donated $250,000 to Donald Trump’s inaugural committee on December 14, 2016. On January 24, 2017 – five days into his first term – the president issued a memorandum approving construction of the pipeline.
- Although Kelcy Warren has a personal fortune of almost $8 billion, a 2021 ProPublica investigation alleged that he repeatedly paid zero dollars in federal taxes – likely a lower tax bill than most of Energy Transfer’s working class employees. This is not unique among billionaires. In Warren’s case, based on the same report, he likely benefited from numerous tax breaks and subsidies that artificially prop up the fossil fuel industry and that can be accessed by fossil fuel executives for their personal taxes.
- In response to the protests at Standing Rock, an Energy Transfer private security contractor allegedly used militarized, counter-terrorism tactics against the protesters. For example, investigative journalists reported that the security firm sent undercover agents to infiltrate protest camps, used aerial and audio surveillance, tracked the movements of individual protesters, and attempted to convince law enforcement authorities to apply anti-terrorism laws against the protesters. Energy Transfer appears to have used information collected by its contractor to file its SLAPP lawsuit against Greenpeace.
We expect that many other details about Energy Transfer’s practices will come to light during the trial. There is a real possibility that this lawsuit could backfire for the company – even in a national political environment that is highly favorable to the fossil fuel industry. But the outcomes of this trial are far from certain. In our next article, we will examine the risks of this lawsuit in more detail.
Note: EarthRights International represented some of the defendants in the initial federal lawsuit but is not involved in the state trial nor Greenpeace’s legal defense. EarthRights is a member of the Protect the Protest task force, which supports victims of SLAPPs and other predatory legal tactics.
