About a month after losing a massive court case, Greenpeace was still being Greenpeace.
On April 11, activists from the organization dumped red dye into a U.S. embassy pond in London to protest support for Israel in the ongoing Gaza conflict.
They filmed the demonstration, put the video on social media and released a statement that the activists were “highly trained” and any safety and security risks had been mitigated.
For now, the group continues to operate as if it doesn’t have a $660 million fine hanging over its head, as the energy industry and environmental groups keep an eye out for the next court move.
“The case is one of the largest protest-related judgments in U.S. history,” said Tom Sharp, director of permitting intelligence for analytical firm Arbo. Besides the money, the case could change how the energy industry and the nongovernmental organizations (NGOs) that frequently oppose it interact.
North Dakota knock-down
In March, a jury in Mandan, North Dakota, found Greenpeace liable for claims in a lawsuit brought by midstream company Energy Transfer. The case went back to 2016, during the installation of the Dakota Access Pipeline.
The 1,172-mile, 750,000 bbl/d crude line runs out of the Bakken Shale and terminates in Illinois.
Energy Transfer’s plan for the line to cross the Missouri River upstream of the Standing Rock Sioux Tribe’s reservation led to raucous protests, and the company was furious at Greenpeace’s involvement. According to Energy Transfer, the organization defamed the midstream company and encouraged protesters to trespass on the construction site, leading to a long and occasionally violent conflict.
Protesters occupied federal lands for months before they were finally ordered off, in a conflict that drew international attention.
“We felt compelled to file this lawsuit because of the damage they caused,” said Energy Transfer CEO Kelcy Warren in a video statement the company placed on YouTube as part of its campaign.
The company sued Greenpeace’s three entities—Greenpeace USA, Greenpeace International and Greenpeace Fund. According to court documents, Greenpeace organizations made numerous defaming statements—nine were cited in court—about Energy Transfer’s conduct.
The defaming statements wrongfully accused Energy Transfer of reckless actions, such as violating and damaging Sioux sacred sites and physically attacking peaceful protesters, among other falsehoods. The court also found that Greenpeace activists and allies trespassed on the property.
Overall, the lawsuit accused the NGO of a coordinated campaign to delay the Dakota Access Pipeline through trespass, nuisance, defamation and conspiracy, Sharp said. Greenpeace claimed that it only played a minor role behind the tribal nations protesting the project. The North Dakota jury agreed unanimously with Energy Transfer.
Two other lawsuits on the project that don’t involve Energy Transfer are still going through the courts. In 2019, the state of North Dakota sued the U.S. Army Corps of Engineers for $38 million. The state claims the corps mishandled its protest response. The Army Corps has jurisdiction over the pipeline segment and owns the land that became site of the largest protest camp in 2017. A judge has yet to rule on the case.
In October 2024, the Standing Rock Sioux Tribe also sued the Army Corps for allowing the pipeline to operate without an easement. The tribe wants the line shut down.
SLAPP heard round the U.S.
Sharp said the case could have major implications for the future strategies of both sides in the forever conflict between energy companies and environmental NGOs.
“It represents a legal strategy shift: from challenging specific statements to portraying environmental opposition as a coordinated enterprise of economic sabotage,” Sharp wrote.
Energy Transfer’s case against Greenpeace went after the organization for its conduct during the protest and, importantly, in a jurisdiction where protest does not fall under the protections offered under Anti-SLAPP laws.
“SLAPP” is an acronym for “strategic litigation against public participation.” Anti-SLAPP laws are meant to favor free speech by protecting protesters from excessive legal costs. (The irony being that lawfare has been the primary weapon against other projects such as the Mountain Valley Pipeline.)
Different states have different anti-SLAPP laws, and the protections vary even in states with extensive energy infrastructure. The Institute for Free Speech, an NGO dedicated to First Amendment protection, has a grading system for the laws of each state. The scale depends on the level and number of protections provided for people involved in public advocacy.
The laws can provide for early dismissal of cases, meaning the legal fees don’t add up, or shifting fees to the plaintiffs to discourage harassment.
Some of the states with robust protections may surprise people. Texas, Louisiana and Oklahoma all have top anti-SLAPP measures, according to the Institute of Free Speech. Illinois, Iowa and the rest of northern central U.S. states do not—especially North Dakota.
The North Dakota jury, picked from the community that went through the years of protests, was evidently not happy with Greenpeace and approved a penalty more than double Energy Transfer’s original lawsuit for $300 million.
Greenpeace sought on multiple occasions to change the venue on the trial and was denied. Energy Transfer is based in Texas but filed the lawsuit in North Dakota.
“Greenpeace’s vulnerability was a function of location as much as conduct,” Sharp said. “North Dakota’s lack of a SLAPP statute made it fertile ground for Energy Transfer’s strategy. The same case in Texas or California likely wouldn’t have made it past early dismissal.”
Not so appealing
Greenpeace announced its intent to appeal at the end of the trial in Mandan. The case would go before the North Dakota Supreme Court, though even analysts sympathetic to the environmental group doubt the verdict will be overturned.
Patrick Parenteau, a retired environmental law professor at the Vermont Law and Graduate School, estimated the chances of reversal at less than half in an April analysis in the environmental publication Grist. The justices, he wrote, are more likely to reduce the $660 million judgment.
Depending on the actions of the North Dakota high court, Greenpeace could then press its case to the U.S. Supreme Court, based on free speech principles. The move would be risky, Parenteau said, because of the current conservative makeup of the court and the potential for the case to set a legal precedent on protests that NGOs may not like.
Before the North Dakota trial ended, Greenpeace International had already filed a countersuit against Energy Transfer in the European Union, which passed anti-SLAPP rules a year ago.
According to court documents, Greenpeace International owes $132 million of the $660 million claim, and the organization seeks to recover costs through the EU court system. The hearing is scheduled for July.
Either way, the EU outcome will have limited influence for most organizations within the U.S. that don’t have an international wing.
“Greenpeace operates under a formal international structure,” Sharp said. “Others may coordinate across borders, but Greenpeace can play offense in Europe because of its large international wing.”
Protest organizers will likely take lessons from the case’s immediate outcome. Sharp predicted a recalibration for the environmental movement and a change in protest strategy.
“Venue has always shaped risk, but it plays a new role with respect to environmental advocacy,” he said. “Expect NGOs to vet tactics more carefully to narrow geographic exposure.”