It's Not Just About Greenpeace. The First Amendment Is On Trial In North Dakota.

In a tiny rural courthouse, the constitutional right to protest is under attack by Energy Transfer in a way that hurts the entire nation. This is a deeply un-American trial.

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I want to share this video I shot on the banks of the frozen Missouri River in Bismarck, North Dakota — just miles from the historic $900 million SLAPP harassment lawsuit filed by the Energy Transfer pipeline company against Greenpeace. I made the video after spending several days in a court in Morton County with a group of attorneys monitoring a trial that is fast turning into a mockery of the rule of law with the ultimate goal of undermining the right to protest in this country. (I am writing here in my own capacity and I do not speak for the monitoring team.)

First, a little background. A SLAPP lawsuit is filed by a corporation not to litigate real claims, but to use the burdensome procedures of a litigation to harass and try to silence a critic. To avoid the expense of a SLAPP lawsuit, many targets simply abandon their advocacy. SLAPP lawsuits violate the Constitution and are illegal, but pro-corporate judges (like the one presiding in North Dakota) often let them go forward. Greenpeace has been dealing with some version of the abusive Energy Transfer SLAPP lawsuit since 2017, costing the organization millions of dollars in legal fees and massive amounts of lost staff time. The company is suing Greenpeace on the theory that its minor support of the Indigenous-led protests at Standing Rock in 2016 delayed the Dakota Access Pipeline and caused economic harm to the company.

After years of litigation, the trial finally started in North Dakota on February 24. It is expected to last until the end of March. In the meantime, the Chairperson of the Standing Rock Sioux — the Indigenous group which led the protests — issued this statement about the trial. It explains the tribe’s opposition to the pipeline, which traverses traditional ancestral lands, has led to the desecration of cultural sites, and already has reportedly created significant pollution through the leakage of more than 1 million gallons of drilling fluids.

The video speaks for itself, but I want to add a couple of points. For a fossil fuel company, the “dark art” of a successful SLAPP harassment lawsuit is to make the trial proceeding look fair to the naked eye even though it’s structured to guarantee a result for industry. That’s what I am witnessing in North Dakota. There’s a judge presiding, lawyers arguing points of law, and a jury of citizens in the jury box. It looks normal, but it’s not.

Energy Transfer and its billionaire CEO Kelcy Warren — a major donor to all three Trump campaigns — are trying to pull off a sleight of hand against Greenpeace. But in my opinion, the company’s strategy is slowly being exposed. It’s obvious to anyone watching in court that the trial is deeply biased against Greenpeace.

It starts with the fact the jury is not impartial. Several members of the jury work in the fossil fuel industry or have ties to the industry, as documented by news sources and in a powerful motion filed by Greenpeace to change the venue. Morton County, where the trial is being held, is heavily dependent on fossil fuels for its economic well-being. President Trump won 75% of the vote there in the recent election. There’s not a single Native American or person of color on the jury even though issues of Indigenous rights are central to the dispute. Even more shocking, 97% of county residents surveyed prior to trial indicated they could not be a fair juror in the case, according to the National Jury Project.

In light of this data, Judge James Gion’s repeated refusal to move the trial to another venue is I believe a serious dereliction of duty that likely will result in a reversal on appeal. Energy Transfer and its law firm Gibson Dunn (the same firm Chevron used to attack me and the Amazon communities of Ecuador) likely chose to file the case in Morton County because they knew Greenpeace could not get a fair trial there. Also disturbing is that the company’s theory of liability is a direct attack on the First Amendment and the right to protest for everyone.

Even though Greenpeace played only a very limited role at the Indigenous-led protests at Standing Rock — the group only had six people there for a limited time in support — the pipeline company believes anyone who was there should be held responsible for 100% of the harm caused by all 100,000 protestors, including the few who committed acts of vandalism or violence. This is preposterous and a direct attack on our Constitution. It’s also a tricked-up way to force Greenpeace into bankruptcy given the company estimates damages from the protests to be as high as $900 million. Under the company’s theory, Greenpeace should be responsible for all of it. (This damages figure is hugely exaggerated and there appears to be no causal link between Greenpeace and the damages.)

At the insistence of Energy Transfer, public and media access to the trial has been severely restricted. It’s a choreography so ugly the pipeline company and its lawyers don’t want people to see it. The public and the media have been denied access to a live stream that flows privately to the lawyers for the parties, even though it is customary to live stream and even broadcast high-profile trials in the state. Moreover, 8,000 pages of evidence (most of it embarrassing to the pipeline company) have been sealed by the judge at the request of Energy Transfer, preventing public scrutiny. Energy Transfer wants the trial to take place in darkness, but reporters from around the country have flooded into the courtroom. Articles on the trial and its flaws are appearing all over the globe, including in The New York Times, Washington Post, Associated Press, CNN, The Guardian, Inside Climate News, Slate, Democracy Now, Common Dreams, and Truthout. (For links to the articles, go to our website at trialmonitors.org and click on “news coverage”.)

A SLAPP attack only works to optimal effect if the public accepts the trial as legitimate; that’s not likely to happen here. Our trial monitoring group is calling it out. We will produce a final report when the trial is over documenting all of the abuses, large and small. I believe Greenpeace already is winning this battle in the court of public opinion and ultimately has a very good chance of winning the legal case in an appellate court.

We all have a role to play. To protect the climate movement and free speech, I am calling on everyone to step up and protect Greenpeace at this critical moment. Please spread the word and share the video. To learn about our monitoring work at the trial, please go to trialmonitors.org. To help Greenpeace, go to GreenpeaceOnTrial.org.

-Steven