A big trial in a small North Dakota courtroom is testing the First Amendment in the era of Trump

By Laura Paddison, CNN

(CNN) — A high stakes $300 million lawsuit brought by a giant pipeline company against the environmental group Greenpeace is drawing to a conclusion in a small courthouse in North Dakota.

After three weeks of hearings, the case is now in the hands of the jury. What’s decided could bankrupt Greenpeace’s US operations and deal a devastating blow to free speech and protest, experts say.

The lawsuit, brought by Dallas-based Energy Transfer Partners, revolves around protests against the construction of the Dakota Access Pipeline near the Standing Rock Sioux Reservation nearly a decade ago.

Energy Transfer accuses Greenpeace of masterminding the protests, spreading misinformation and causing the company financial loss through damaged property and lost revenues. It’s seeking at least $300 million and potentially more than double that in punitive damages.

Greenpeace says it played only a minor role in what were Indigenous-led protests and that the lawsuit is an attempt to suppress free speech and dissent. “This is a test on our First Amendment rights during a very, very dangerous time in this country’s history,” said Deepa Padmanabha, senior legal advisor for Greenpeace USA.

President Donald Trump’s return to the White House has ushered in a wide rollback of climate and environmental policies, an emboldening of fossil fuel companies and a crackdown on free speech.

Some legal experts say the case has the hallmarks of a so-called SLAPP action, a strategic lawsuit against public participation with the intent to shut down critics or trap them in expensive litigation. Dozens of US states have anti-SLAPP laws, but North Dakota does not.

The consequences of a Greenpeace loss are huge, said James Wheaton, the founder and senior counsel for the First Amendment Project, a public interest law firm. The effect could be “to establish that anybody who assists in putting on a protest is going to be held responsible for what everybody else does at that protest,” he told CNN.

Energy Transfer strongly denies its case is aimed at silencing Greenpeace. “Our lawsuit is about recovering damages for the harm Greenpeace caused our company. It is not about free speech,” said a spokesperson.

Greenpeace’s “organizing, funding, and encouraging the unlawful destruction of property and the dissemination of misinformation goes well beyond the exercise of free speech. We look forward to proving our case and we trust the North Dakota legal system to do that,” they told CNN.

The protests against construction of the Dakota Access Pipeline started in 2016. The Standing Rock Sioux fiercely opposed the pipeline, saying it would endanger the Missouri River, their water source, and damage sacred tribal grounds. Many thousands of people, including representatives of more than 100 tribes and dozens of non-profits, joined in the months-long protest.

Their efforts to halt construction were ultimately unsuccessful, however, and the pipeline started operating in June 2017. It now carries around 750,000 barrels of crude oil a day from North Dakota to Illinois.

Energy Transfer’s legal battle against Greenpeace has been going on for nearly eight years, driven by its CEO, the billionaire Kelcy Warren, a key Trump donor who once said at an oil industry event that pipeline protestors needed to be “removed from the gene pool.”

In an interview with CNBC in 2017, he said Standing Rock protestors had torched equipment and attempted to cut holes in pipelines. “Everybody’s afraid of these environmental groups and the fear it may look wrong if you fight back with these people, but what they did to us is wrong and they’re going to pay for it,” he said.

Energy Transfer launched its first claim against Greenpeace in 2017, alleging it had violated the Racketeer Influenced and Corrupt Organizations Act, legislation aimed at combating organized crime.

That lawsuit was thrown out by a North Dakota federal judge in 2019. A week later, Energy Transfer filed a similar claim in the state court against Greenpeace USA, as well as Netherlands-based Greenpeace International and Washington DC-based Greenpeace Fund.

The current lawsuit accuses Greenpeace of making defamatory statements that harmed the company’s access to financing, including claims the pipeline would damage cultural resources of the Standing Rock Sioux Tribe and that its contractors used excessive force against protestors.

Greenpeace argues these claims had been widely reported in the media before it ever commented on them.

Energy Transfer’s claim also accuses Greenpeace of a series of other offences including nuisance and trespass.

Greenpeace USA’s deputy general counsel Padmanabha said Greenpeace was at the protest to teach “non-violent direct action skills like safety and de-escalation,” she said. “We were in solidarity. This was not a Greenpeace campaign.”

The lawsuit is “trying to hold the Greenpeace entities accountable for every single thing that happened on the ground at Standing Rock,” she added.

There are also concerns that the trial location makes things very tough for Greenpeace.

The case is being tried in the heart of energy country, where three quarters of people voted for Trump, said Marty Garbus, a civil rights lawyer who has been monitoring the trial.

“I don’t know of any case where as many jurors as this have direct involvement with the (oil and gas) industry,” he told CNN. “Why should they favor Greenpeace … over their neighbors (and) friends?”

Greenpeace’s petition earlier to change the court venue from Morton County, an area that was heavily affected by the anti-pipeline protests, was denied earlier this month. The organization was also denied its request for the proceedings to be publicly live streamed.

In February, Greenpeace International filed its own claim against Energy Transfer in a Dutch court using the European Union’s anti-SLAPP legislation, seeking to recover the damages and costs the organization has incurred as a result of the company’s lawsuits.

In North Dakota, it’s now a waiting game. Juries are like “black boxes” and it’s impossible to guess their decision, said Wheaton of the First Amendment Project.

If Greenpeace loses, however, the impacts on protest could be chilling, he said.

“Make an example of one person, especially somebody who’s big, and you’ll scare everybody else.”

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