Silencing Greenpeace

In a stark example of a Strategic Lawsuit Against Public Participation (SLAPP), a United States (US) state court compelled Greenpeace to pay hundreds of millions of dollars for facilitating trespass, conversion, nuisance, defamation, and civil conspiracy (Energy Transfer v Greenpeace). The case is a backlash to months of extensive protests in 2016 against the construction of the Dakota Access Pipeline, with particular emphasis on the risks that the pipeline posed for the tribal lands of the Standing Rock Sioux Tribe in North Dakota. Notably, the pipeline was constructed to cross underneath a waterway just a few miles upstream from the Standing Rock Reservation. While the protests opposing the pipeline manifested around the country and abroad, the epicenter of the protests was the occupation of the construction site. The protests and civil disobedience actions there were heavily policed, resulting in hundreds of arrests and extensive use of police force.

Energy Transfer, the plaintiff, is a partial owner of the Dakota Access Pipeline and was leading the pipeline construction. In 2017, Energy Transfer first sought legal action against Greenpeace and other environmental rights organizations involved in the protests, with a lawsuit based on defamation and racketeering claims. That initial legal action was dismissed in February of 2019 by a federal district court, with the federal racketeering claims having been dismissed with prejudice, i.e., permanently. One week later, Energy Transfer filed a new lawsuit in the North Dakota state district court against Greenpeace, along with Red Warrior Society and three private individuals (including the famous indigenous environmental rights activist Krystal Two Bulls). It was this second attempt in the state courts which resulted in last week’s jury verdict that found Greenpeace liable for more than $660 million.

While jury trial has on several occasions proved to be an obstacle to trashing the civil rights of climate activists in the UK (see e.g., here, here, here, and here), in Energy Transfer v Greenpeace the jury sent a devastating blow to those seeking to protect minority rights and the environment. The jury was taken from residents of Mandan County, North Dakota, where the state district court was located and the protest actions against the pipeline occurred. For a political conflict that largely overlaps with injustices faced by indigenous peoples, the setting of Mandan County is particularly troubling. In the 2010 US Census, 93% of the county identified as White and less than 4% as Native American. Furthermore, the Mandan oil refinery – the largest in North Dakota – is a significant source of employment for residents of the county. The lawsuit seemingly sought to divide the residents from the protest actions by emphasizing the costs incurred by state and local taxpayers – allegedly $38 million – as a result of the protests.

Silencing Civil Society

Energy Transfer’s lawsuit was filed against three Greenpeace entities: Greenpeace International; Greenpeace, Inc; and the Greenpeace Fund, Inc. The latter two entities together form the operation of ‘Greenpeace USA’, while the first entity is the Netherlands-based international body at the center of the global Greenpeace network. By doing so, the plaintiffs sought to link together various communications campaigns, direct action trainings, and fundraising activities as a coordinated campaign against Energy Transfer. It is also noteworthy that the Energy Transfer lawsuit linked Greenpeace to the actions of other non-parties, such as BankTrack and Earth First!, seemingly positioning the three Greenpeace entities as puppet masters of a global campaign against Energy Transfer and its financiers. The lawsuit particularly emphasized the harm caused by Greenpeace and others’ campaigns seeking to divorce the financial actors who worked with Energy Transfer from the pipeline project. Ultimately, the lawsuit amounts to a strategy of pinning collective responsibility for a complex, multifaceted and long term series of protest and civil disobedience actions onto a single, large civil society organization. In addition, portraying Greenpeace as the puppet master behind the protests is disrespectful and patronizing to the Standing Rock Sioux Tribe, as its Chairwoman points out. The verdict in Energy Transfer v Greenpeace denies the members of the Sioux community autonomous actorness and so continuously and legally reinforces the historical disenfranchisement of indigenous communities.

Energy Transfer’s lawsuit amounts to a silencing move against climate activists, similar to what we have witnessed earlier on this side of the Atlantic. In July 2024, five Just Stop Oil activists were found guilty of conspiracy to cause a public nuisance due to having participated in a Zoom call in which Just Stop Oil sought to recruit activists to take part in protest action that included a temporary blockade of the M25 motorway. They were sentenced variously to four and five years imprisonment, the longest sentences ever issued by a UK court for non-violent protest activities. Rather than focusing on the actual protesters, i.e., those causing damage, these judicial actions go after the civil society actors that organize non-institutional interest representation in the democratic process. And, by doing so, they damage the resilience of democracies.

What does this mean for Europe?

Recognising the danger posed by a rising number of SLAPPs for democratic resilience in Europe, last year, the EU adopted the Anti-SLAPP Directive. Its objective is to protect members of civil society, including journalists, from manifestly unfounded claims or abusive proceedings in civil courts. It seeks to achieve this objective by allowing for a dismissal of these claims at the earliest possible stage and empowering the judge to impose penalties against plaintiffs filing manifestly unfounded claims. The Directive’s Article 5 requirement that the SLAPP has cross-border implications would be met in the case of Energy Transfer v Greenpeace. And there is a fair case to be made that Energy Transfer’s lawsuit amounts to a ‘disproportionate, excessive or unreasonable claim’ due to the ‘excessive dispute value’ (Article 4(3)(a)), despite its success in the state jury trial.

Article 16 of the directive specifically requires that EU member states refuse the recognition and enforcement of a SLAPP judgment delivered in a third country against a person domiciled in the EU if such judgment is considered manifestly unfounded or abusive in the member state in question. The Netherlands is currently in the process of implementing the Directive but takes the position that Dutch civil law already provides for most of the measures prescribed by the directive. Greenpeace International is based in Amsterdam and countered the SLAPP by Energy Transfer in Dutch courts before the court in North Dakota gave its verdict. In increasingly confrontational relations with the US Government, specifically on the issues of free speech (see: here; for a fact check: here) and academic freedom, this case offers a crucial stress test as to whether Dutch law interpreted in light of the EU Directive is capable of protecting civil society actors in Europe from US interference.

Greenpeace International and its European national associations are no strangers to SLAPPs, having successfully defended themselves against them in Europe’s national courts in recent years, including against an $11 million claim brought by Shell in the UK, a claim against Greenpeace France brought by TotalEnergies in France seeking the erasure of a report calculating TotalEnergies greenhouse gas emissions, and a claim brought against Greenpeace Italy by the oil and gas company ENI in Italy which is still ongoing litigation. However, the challenge posed by the Energy Transfer lawsuit provides a more substantial test of the Anti-SLAPP Directive’s measures.

Non-institutional interest representation is essential for democracy

There are diverse theories of liberal democratic institutions, each with their own valuation of majoritarian decision-making, direct participation and deliberation. However, universal to all of them is the fundamental protection of freedoms of speech and assembly, including the ability for civil society organizations to freely organize, as essential elements of the democratic process. Protest is generally protected by these freedoms; however, the protection of civil disobedient protest actions which cause damage to property is substantially more controversial.

Energy Transfer postures its lawsuit as a legitimate legal response to alleged defamation and other civil wrongs connected to the protestors’ disobedience. However, its attempt to pin Greenpeace with responsibility for the consequences of hundreds of private individuals’ actions, and the financial sum it pursues as damages, substantiate its characterization as a SLAPP. The EU has correctly recognized the harm posed by SLAPPs in so far that they diminish civil society’s capacity to represent under- or unrepresented interest groups, and leverage civil law proceedings to stifle dissent in favor of the economically and politically powerful. Rather than using litigation as a means of participating in democratic deliberation and the implementation of law, SLAPPs use law to suppress deliberation and participation. Now, we will see if the Anti-SLAPP Directive is robust enough to protect European civil society actors from abusive lawsuits.