SLAPP Lawsuit Against Greenpeace Is An Attack on the Entire Climate Movement

Fossil fuel tycoon Kelcy Warren is set to begin a preposterous $300m harassment case in North Dakota against Greenpeace. This must be resisted.

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The long-running legal attack on Greenpeace financed by the Energy Transfer pipeline company and its chairman Kelcy Warren is set to enter a decisive phase this week in a courthouse in North Dakota. The stakes are high not just for Greenpeace, but for the entire climate justice movement and indeed for all activists who rely on free speech protections to fight corporate abuse wherever it occurs.

I want to say at the outset that I believe Greenpeace has a decent chance of coming out of this trial stronger than ever. Even though the proceedings appear hopelessly rigged against the organization, the trial represents an enormous opportunity for the climate justice movement to fight back and turn the tables on industry — and to stop the growing trend of corporate abuse of the legal system. But for that to happen, we must all pay close attention and engage.

As background, Warren’s $300 million SLAPP harassment lawsuit against Greenpeace is set for opening arguments on Wednesday in the small town of Mandan. Make no mistake: the goal of the case is to crush Greenpeace and to weaken all climate justice groups. I am calling on the world to help Greenpeace stand up to Warren’s bullying by bearing witness to this trial, which after reading court documents appears choreographed to produce an Energy Transfer “victory” by excluding critical evidence key to Greenpeace’s defense. (To keep up with developments at the trial, which is scheduled to last five weeks, please go to Trialmonitors.org and the Greenpeace site GreenpeaceOnTrial.org.)

Fossil fuel billionaire Kelcy Warren is on a crusade to try to intimidate the climate justice movement. It’s up to all of us to fight back.

Given that I was targeted by Chevron with a monster SLAPP lawsuit in New York that led to three years of arbitrary detention after helping Amazon communities win the Ecuador pollution case, I have decided to get personally involved.

I have helped to enlist several prominent attorneys to travel with me to North Dakota to monitor the Greenpeace proceedings. They include the legendary civil rights leader Marty Garbus (who represented Nelson Mandela and Vaclav Havel), Indigenous rights lawyer Natali Segovia, and longtime human rights leader Jeanne Mirer, the President of the International Association of Democratic Lawyers. The noted South African legal scholar Jackie Dugard, who teaches human rights law at Columbia, will also be joining us. We will sit in court alongside law students from Columbia, Georgetown, and NYU to track each phase of the trial. We plan to issue briefings and statements. At the end, we will publish a report that can be used by courts and international human rights bodies to dissect what happened and if appropriate to take action against Warren and his company.

Here’s my bottom line: the court documents suggest Greenpeace has a low chance of winning the trial. The judge has made a series of rulings that make it inordinately difficult for Greenpeace to mount a full defense. The jury is drawn from a county that is strongly pro-Trump. Whatever the result, do not take any outcome as a “defeat” for Greenpeace. The organization with our help can and I believe will win in the court of public opinion and ultimately in appellate courts.

As background, the construction of Energy Transfer’s Dakota Access Pipeline (DAPL) across Indigenous ancestral lands in North Dakota prompted tens of thousands of people to protest in 2016 and 2017. Greenpeace played a relatively minor role in speaking out in support of the Indigenous-led protests, organized primarily by female leaders of the Standing Rock Sioux. The pipeline is now operating, apparently illegally without proper environmental permits. Fears that Indigenous lands and waterways would be polluted appear to have been borne out, with evidence emerging from an expert report filed in court by the Water Protector Legal Collective (a report since sealed by the judge) that millions of people face potential health risks from leaks of toxic contaminants from the pipeline into drinking water sources.

There is little doubt that Warren is a hard-right ideologue. He has pumped tens of millions of dollars into the case over the last several years. After his first lawsuit against Greenpeace was dismissed by a federal court in 2019, he filed a similar case in state court that is based largely on three defamation claims. That’s the one going to trial this week. He once said activists “should be removed from the gene pool.” He and his employees contributed more than $12 million to Trump’s 2024 campaign. While I do not believe Warren’s strategy will work — the climate movement has gotten stronger since the lawsuits were filed — the stakes are high given that Greenpeace all but founded the modern environment movement in the early 1970s and has been successfully battling fossil fuel polluters ever since.

Warren’s other problem is that Energy Transfer is a serial polluter. It was recently convicted in Pennsylvania of 48 criminal violations of environmental laws, according to a court filing in the North Dakota trial. The company also has been barred from entering into contracts with the federal government given its lack of integrity.

It’s not only me who believes this trial is a deeply problematic attack on the Constitution. The allegations against Greenpeace have been condemned as illegitimate by just about every First Amendment legal scholar in the country who has examined the case. While most of us believe the US justice system suffers from serious flaws, Warren’s trial in my view takes the unfairness to a whole new level. The rules appear to have been consciously structured to crush Greenpeace as part of the same corporate playbook Chevron used against me the Amazon communities of Ecuador who won a landmark $10 billion pollution judgment. That’s not surprising given that Energy Transfer is using the same law firm (Gibson Dunn) that Chevron used against me.

The attack on Greenpeace also is happening with the apparent approval of Judge James Gion. Gion has granted motion after motion presented by the company, while denying almost every significant motion filed by Greenpeace. It appears to be a degree of judicial bias that threatens to reach staggering levels. Trials like this are set up to appear to the unsuspecting public like real contests, but technical rulings made in advance can largely preordain the outcome. I believe that’s happening here.

Warren and his team of lawyers from the Gibson Dunn law firm have convinced Gion to exclude critical evidence that Greenpeace believes undermines its right to defend itself against highly suspect “defamation” claims stemming from statements it made in support of the Indigenous-led protests. The judge even barred used of the term SLAPP during the trial. (This is directly from the corporate SLAPP playbook: the judge in the Chevron case against me barred use of the word “pollution” during a trial stemming from the company’s toxic dumping in Ecuador.)

Judge James G. Gion is presiding over the SLAPP case filed by Energy Transfer against Greenpeace.

Gion also has severely restricted the public’s access to the trial, ensuring the proceedings are shrouded in secrecy. Even though the live streaming of trials is frequent in North Dakota — two high-profile criminal trials recently were televised by Court TV and there is a live stream link on the court’s website — Gion at the insistence of the Gibson Dunn lawyers has refused all public and media access to a live stream under the bizarre theory it would deny the “fair trial rights” of the company. Worse, almost all legal filings in the case are not available electronically on the court’s website, as they are in most courts. Gion also has sealed critical documents related to the pipeline’s pollution, according to a legal filing by the Water Protector Legal Collective. To watch the trial, one has to physically make the trek to North Dakota and sit in a courtroom that only has 65 seats.

News report also indicate that Warren’s company sent a fake pro-industry “independent” newspaper to households in the jury catchment area. The newspaper is called “Central ND News”; articles are slanted against the protestors and in favor of the company. Gion predictably denied Greenpeace’s attempt to take discovery to determine who paid for the so-called newspaper. He also recently denied several motions from Greenpeace to dismiss the case on SLAPP and other grounds.

Warren and the Gibson Dunn lawyers are of course banking on people not paying attention. Let’s not give him that. Several prominent national newspapers and media outlets have written stories in the lead-up to the trial, even if there is virtually no coverage in North Dakota. As trial monitors, we plan to issue regular statements and briefings which the public can access. I will also be posting on social media accounts. (Again, please follow developments at trialmonitors.org.)

A SLAPP case can be defeated or its impacts blunted if it is called out loudly, publicly, and consisently. Please spread the word and build solidarity. We all have a role to play.

—Steven