On February 24, a landmark trial will begin in North Dakota state court that could have significant implications for free speech on a national scale. Energy Transfer, a multibillion dollar fossil fuel corporation based in Texas, has sued Greenpeace USA for $300 million in a lawsuit that could put the renowned environmental nonprofit out of business. This lawsuit has gained notoriety as an especially brazen attack by a corporation on Americans’ free speech.
In this article, we will examine Energy Transfer’s allegations in more detail and why this lawsuit is so dangerous.
But first: A brief background on the legal tactic known as a “SLAPP”
In the American justice system, civil litigation plays an important role in ensuring that a person who suffers harm can seek remedies and compensation from others who contributed to the harm. However, civil litigation can be expensive, time-consuming, and stressful, especially in “David versus Goliath” battles where one party is at risk of losing everything, while the other party has seemingly endless resources to continue the litigation for years. This is why many wealthy people and corporations have found that they can effectively use the litigation process itself to unfairly harm their opponents, even if the claims are baseless and the court eventually dismisses the case.
In legal circles, we refer to this tactic as a “strategic lawsuit against public participation” or SLAPP when it targets free speech, freedom of the press, and freedom of assembly in particular. The nonpartisan Uniform Law Commission describes SLAPPs as the use of the civil litigation system “not to seek redress or relief for harm or to vindicate one’s legal rights, but rather to silence or intimidate citizens by subjecting them to costly and lengthy litigation.”
Energy Transfer’s lawsuit is an emblematic example of a SLAPP
Energy Transfer’s lawsuit against Greenpeace is a clear example of a SLAPP: it attempts to punish Greenpeace for free speech activities that are protected under the First Amendment of the U.S. Constitution. Protests – even protests that cause inconveniences to a corporation – are an important part of the democratic process and are constitutionally protected activities. If criminal activity occurs during a protest, the perpetrators can be punished – but isolated criminal activities do not cancel out the free speech rights of others who lawfully participated in the protest. Likewise, some protesters choose to participate in “civil disobedience,” which often involves the conscientious and nonviolent breach of laws such as trespassing on private property or blocking traffic as a form of peaceful protest. These actions can be punished, but the punishment needs to be proportional – which usually entails a small fine.
Energy Transfer is trying to hold Greenpeace liable for allegedly being part of a “network of putative not-for-profits and rogue eco-terrorist groups.” In reality, consistent with its decades-long commitment to nonviolent direct action, Greenpeace’s biggest contribution to the protests here was to support a team that conducted de-escalation and non-violence training for activists at Standing Rock. Energy Transfer is expected to attempt to recharacterize that training as an effort to incite violence and crimes.
Indeed, throughout the litigation, Energy Transfer has struggled to articulate what this lawsuit is about. As Greenpeace observed, the initial complaint in federal court read like “polluter fanfiction” that tried to draw wild and unsubstantiated connections between the many actors who criticized the pipeline. In July 2018, the federal court ordered Energy Transfer to amend its complaint and allege specific allegations for Greenpeace.
Energy Transfer amended its complaint, but the federal court dismissed the case in February 2019, noting that the “Plaintiff already had a chance to amend the complaint to allege valid [racketeering] claims, and that any additional amendments would be futile.”
Energy Transfer refiled in North Dakota state court, this time using more artfully constructed language. In 2022, as litigation proceeded, the company voluntarily narrowed its list of claims – presumably because some of the original claims were too unsupported to argue in court or because they could backfire, for example if the company feared that these claims would open it up to discovery that would disclose damaging details about its record. What remains are three categories of claims:
- Defamation – Energy Transfer seeks to hold Greenpeace liable for repeating widely circulated and accepted statements made by the Standing Rock Sioux about the company’s alleged encroachment on tribal lands, desecration of cultural resources, and use of excessive force against protesters.
- Tortious interference with contractual relations – Energy Transfer seeks to hold Greenpeace liable for signing onto a letter, along with several hundred other organizations, sent to banks financing the Dakota Access Pipeline. The company claims that the banks made decisions to withdraw and delay financing based on this letter, rather than on the banks’ own due diligence.
- Collective liability – Energy Transfer seeks to hold Greenpeace liable for alleged criminal acts done by unknown individuals who were present at the protests. In other words, the company claims that Greenpeace, by providing training for activists on de-escalation, nonviolence, and safety, is liable for anything that happened at the protest.
During the trial, we expect that Energy Transfer will attempt to convince the jury that Greenpeace orchestrated or incited the protests against the Dakota Access Pipeline in 2016-2017 and that they should be held responsible for isolated, alleged criminal acts that took place during the protests. Energy Transfer claims to have suffered a range of damages to its property, business relationships, and reputation as a result of the protests. How they calculated $300 million in damages, and how those damages link to Greenpeace remain a mystery.
In media interviews, Energy Transfer has been explicit about its true intentions
In media interviews, the company’s chief executive Kelcy Warren has made it clear that this lawsuit is about “sending a message” and dismantling what he sees as unlawful criticism of his business activities. In a 2017 interview with a North Dakota media outlet, for example, Warren said, “Could we get some monetary damages out of this thing, and probably will we? Yeah, sure. Is that my primary objective? Absolutely not. It’s to send a message – you can’t do this, this is unlawful, and it’s not going to be tolerated in the United States.” (KVLY Valley News Live, August 31, 2017, starting at 4:00)
In the same interview, in response to the journalist’s question, “Are you trying to cease funding for organizations like Greenpeace?” Warren responded: “Absolutely.” (starting at 8:00)
At times, Energy Transfer executives have also reportedly expressed hostility towards environmental activists in general. In a profile on Warren published in September 2024, for example, the Wall Street Journal wrote that he once said that green activists should be “removed from the gene pool.”
Conclusion
In 2017, when Energy Transfer filed its original lawsuit, local communities were raising concerns about several of its pipeline projects around the country. The company’s motivation in suing a well-known entity like Greenpeace, it seems, was to “send a message” that would scare people from criticizing the corporation’s activities.
The irony is that Energy Transfer’s actions may have the opposite effect. As the Wall Street Journal noted in its profile on Warren: “Some oil-and-gas investors expressed concerns about the claim, saying it makes the industry look vindictive and could result in a reinvigorated protest movement.” Indeed, Energy Transfer’s continued attack on Greenpeace – combined with an anticipated rise in attempts by fossil fuel companies to sidestep environmental and safety protections during the Trump era – are almost certain to result in a reinvigorated protest movement.
For more background on the lawsuit, please see Part 1 in this series.
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.
