In August 2017, Energy Transfer Partners (ETP) sued NGOs BankTrack and Greenpeace, as well as the EarthFirst! movement, alleging that their campaigns against the controversial Dakota Access Pipeline amounted to racketeering under the Racketeer Influenced and Corruption Organizations (RICO) Act. For BankTrack in particular, its advocacy consisted of organizing public letters to financial institutions that were backing the pipeline – activity that ETP clearly felt threatened by, but which is also clearly protected by the First Amendment. ETP’s lawsuit attacks this free speech by attempting to re-label their work as mafia-like racketeering, and holding them liable for any alleged criminal act committed against the pipeline by protestors.
Some corporations like ETP have misused the U.S. legal system in order to intimidate and harass their critics, using tactics such as “Strategic Litigation Against Public Participation” (SLAPP). Like other SLAPP tactics, the company’s intention in bringing this lawsuit is not to win, but to overburden the defendants with costly and time-intensive litigation procedures. RICO suits are so expensive to litigate that the process could force a nonprofit organization to close its doors even before it reached trial. The goal of this tactic is to create a chilling effect on civil society advocates’ free speech.
ETP’s SLAPP lawsuit is the second recent attempt by a company to use RICO laws in an attempt to silence its critics. Another, ongoing lawsuit by logging company Resolute makes similar allegations against Greenpeace and Stand.Earth. The New York City-based law firm of Kasowitz Benson Torres LLP represents both ETP and Resolute in these cases.
On July 24, 2018, federal judge Billy Roy Wilson dismissed the claims against BankTrack in a complete victory for the organization, issuing a strong rebuke to ETP and to Kasowitz’s “dangerously broad” interpretation of the RICO statute. The judge has not yet ruled on motions to dismiss by ETP’s other targets, including Greenpeace.
Energy Transfer Partners (ETP) is a Texas-based energy company that is building the Dakota Access Pipeline. It filed the lawsuit along with the related Energy Transfer Equity entity.
ERI is representing BankTrack, a small NGO based in the Netherlands that conducts advocacy aimed at commercial banks that invest in projects that have significant human rights and environmental impacts.
Greenpeace and the Earth First! Movement are also named in the complaint. (The Earth First! movement is not an organized group; the plaintiffs sent the complaint to the Earth First! Journal, a publication that is not named in the complaint.)
Kasowitz Benson Torres LLP is a New York City-based law firm that is representing Resolute in this case. The Kasowitz law firm is also representing another company, Energy Transfer Partners, in a similar SLAPP suit against Greenpeace involving RICO claims. Michael J. Bowe, a lawyer for the firm, has expressed his intention to bring multiple lawsuits against environmental organizations using RICO claims.
BankTrack is represented in court by Missouri environmental lawyer Robin Martinez.
The Center for Constitutional Rights represents Earth First! Journal.
Greenpeace is represented by Davis Wright Tremaine LLP.
A wide range of environmental and social justice groups campaign against the Dakota Access Pipeline, challenging the project’s permit in court, protesting at the pipeline site, and conducting advocacy aimed at the pipeline developers and their financiers. The police and security personnel respond to the protests with mass arrests and allegedly excessive force, including the use of water cannons in freezing weather as well as attack dogs.
In the fall, BankTrack organizes public letters to some of ETP’s financiers, describing the concerns of the protestors. Several banks divested from the project.
Protests against the pipeline continued through February, but the pipeline project is ultimately completed.
In August, ETP sues BankTrack, Greenpeace, and the Earth First! Movement, alleging mafia-like racketeering under the federal RICO law.
In December, the Center for Constitutional Rights opposes the plaintiff’s motion for declaration of effective service against the Earth First! movement, because the Earth First! movement is not an organization.
In February, CCR and Earth First! Journal file a motion in federal court seeking sanctions against the plaintiffs and their attorneys.
The same month, the plaintiffs file a consolidated response to Greenpeace’s and BankTrack’s motions to dismiss. The plaintiffs also file a motion to strike the sanctions motion.
In March, the case is reassigned to Senior Judge Billy Roy Wilson. Judge Wilson issues orders denying the plaintiffs’ motion for declaration of effective service on Earth First!, but also denying the sanctions motion.
In April, Judge Wilson rules that the plaintiffs must serve Earth First!. Practically speaking, this means that Earth First! cannot be held liable as a defendant, since the movement does not exist as an organization.
On July 24, Judge Wilson issues a decision granting BankTrack’s motion to dismiss, a complete victory for the organization. The judge has not yet ruled on motions to dismiss by ETP’s other targets, including Greenpeace.
The ability of companies to use RICO to silence their critics would pose an existential threat to civil society organizations in the United States. Even if such a case were to proceed past the “motion to dismiss” phase and into discovery, it would place such a strain on most civil society organizations’ resources that it could force them out of existence. RICO also allows for plaintiffs to claim treble damages against the defendants, which could also force a civil society organization out of existence. If courts establish precedents where RICO damages are possible, companies would be able to use the mere threat of litigation to force their critics into silence. Public dialogue about corporate behavior would come to an end.
The court’s decision dismissing the case is an important rebuke to this use of the RICO statute. The court ruled that ETP’s interpretation of RICO was “dangerously broad,” and that the law cannot be used to connect public criticism to remote criminal activities. “Otherwise, the Government, individuals, corporations, and interest groups could use criminal and civil liability under RICO to curtail almost any disagreeable, arguably protected speech.”
Democracy Now! | Greenpeace & Indigenous Water Protectors Respond to Lawsuit Accusing DAPL Activists of Eco-Terrorism | September 1, 2017
Bloomberg Businessweek | How a Corporate Assault on Greenpeace Is Spreading | August 28, 2017
Democracy Now! | Energy Transfer Partners Sues Greenpeace & Earth First!, Accusing Groups of “Eco-Terrorism” | August 23, 2017
The Washington Post | Dakota Access Pipeline owner sues Greenpeace, arguing it broke organized crime law | August 22, 2017
NPR | Dakota Access Pipeline Owner Sues Greenpeace For ‘Criminal Activity’ | August 22, 2017