Energy Transfer Is Putting Free Speech and Climate Activism on Trial

Imagine a world without effective nonprofit advocacy. When a corporation exploits a local community, no one speaks up or resists. Everyone is too afraid of the weaponized legal system, too vulnerable to liability. The ultra-wealthy take whatever they want and leave others to pick up the pieces. Opposition and resistance have been extinguished.

Those are the risks of a lawsuit against Greenpeace, now going to trial in North Dakota after a seven-year legal battle. Energy Transfer, the company behind the Dakota Access Pipeline, is seeking $300 million for tort damages, including defamation. Energy Transfer’s previous attempt to sue Greenpeace under federal anti-racketeering laws was blocked by the courts. But the state charges have been upheld, with a trial beginning on February 24, and free-speech advocates are raising alarms about the dangerous precedent that would follow a loss for Greenpeace, or even from the trial proceeding at all.

I recently spoke with Scott W. Badenoch, Jr., a visiting attorney at the Environmental Law Institute. He’s part of a team of distinguished international legal scholars, including Steven Donziger and Jeanne Mirer, who have launched a Trial Monitoring Committee to ensure the case against Greenpeace proceeds fairly and transparently.

While the Trial Monitors and some activists will be on the ground in North Dakota, we need to make noise online and in the media, ensuring that as many people as possible know what’s at stake.

As Badenoch described it, the court is trying to maintain “as much of a black box as you could possibly create in the U.S. court system.” Judge James Gion recently denied a motion to allow live streaming of the trial proceedings.

Instead, Badenoch said the case should be dismissed immediately. The allegations attempt to hold Greenpeace responsible for the actions of activists and volunteers unaffiliated with the group. Legal advocates and climate organizers have called it an unconstitutional SLAPP suit, intended to burden Greenpeace with costly legal fees, shut them down, and restrict the free speech of nonprofits more broadly. “There is absolutely no justification for this trial happening in this court, at this time, with this judge,” Badenoch said. “Just none.”

In a press release from the Trial Monitoring Committee, Steven Donziger pointed to recent trends, writing that “this appears to be part of a broader strategy by the fossil fuel industry to weaponize the courts against activists and weaken organizations like Greenpeace in retaliation for their advocacy.”

While the trial itself presents dangers, the recent actions of Energy Transfer have also brought accusations of jury-tampering. In October, residents of rural Morton County, North Dakota, where the trial will be set, received what appeared to be a legitimate newspaper. However, it contained almost exclusively critical attacks on Greenpeace and the pipeline protests, while praising Energy Transfer. The “newspaper” was actually a political mailer from a company called Metric Media, with links to electioneering and fossil fuel companies, as reported in the North Dakota News Cooperative. Even more concerning, financial records link the CEO of Energy Transfer, Texas billionaire Kelcy Warren, to the creation of the fake newspaper. It looks a like blatant attempt to taint the jury pool. Despite this, Judge Gion refused to allow Greenpeace to investigate the origins of the biased mailer.

The crucial role of the Trial Monitoring Committee is to bring attention to these abuses of due process. “We are going to monitor this case one way or the other,” Badenoch told me. “But the more that [Judge Gion] withholds transparency and access from us, the more obvious it is that something is going on that they don’t want people to see.”

Meanwhile, the stakes of the case extend far beyond Greenpeace. If Energy Transfer is successful, Badenoch said, the precedent would be cataclysmic for nonprofit advocacy. An organization could be held liable for any actions by any activists, however tenuously affiliated. “Literally every social justice, climate justice, civil rights, human rights organization across the country—and maybe the planet—is at risk of legal murder in a courtroom, where an organization is put to death by a SLAPP suit.”

As members of the public, that means we all have a responsibility to advocate for transparency, fairness, and ideally dismissal of Energy Transfer’s lawsuit. While the Trial Monitors and some activists will be on the ground in North Dakota, we need to make noise online and in the media, ensuring that as many people as possible know what’s at stake. Badenoch was emphatic about this: “The number one thing is to bring attention to the case. Don’t let Greenpeace die with a whimper.”

In a time of chaos and distraction, it’s all too easy to let cases like this one go unnoticed. But the risks are simply too dire to ignore. “It’s absolutely terrifying for advocacy in this country and beyond. The risks are really hard to overstate,” Badenoch told me. “If Greenpeace is allowed to die in this field in North Dakota, then every single nonprofit is next in line.”