Flags from tribal nations are displayed near Cannonball, N.D., in August 2016 in solidarity with the Standing Rock Sioux Tribe in opposition to the Dakota Access Pipeline. (Kyle Martin/For the North Dakota Monitor)
BISMARCK, N.D. (North Dakota Monitor) – The developer of the Dakota Access Pipeline is appealing a North Dakota’s judge’s decision not to interfere in a free speech lawsuit Greenpeace filed against the company overseas.
The Amsterdam-based Greenpeace International filed the case in February in response to Energy Transfer’s lawsuit accusing it of engaging in acts including conspiracy and defamation to stop the Dakota Access Pipeline from being built.
That lawsuit, which is ongoing in North Dakota district court, is also against two other Greenpeace entities: Greenpeace USA and Greenpeace Fund. In March, a Morton County jury handed down a more than $660 million verdict against Greenpeace, which the court later slashed by roughly half.
Greenpeace International’s counter-suit in the Netherlands alleges that Energy Transfer’s legal challenge is a ploy to waste its time and money. The Dutch case also claims Energy Transfer is liable for making defamatory statements about the environmental group. Greenpeace International has asked the court to order Energy Transfer to award it monetary damages.
Energy Transfer this summer asked Southwest District Court Judge James Gion to suspend the overseas lawsuit until the North Dakota case plays out — a request he rejected in September.
Gion found that the cases consider different legal claims, so he didn’t think it necessary to stop the foreign action. Gion also stated he didn’t believe the Netherlands case would move quickly enough to affect the lawsuit in his court.
Now Energy Transfer wants the North Dakota Supreme Court to step in and order Gion to pause the Dutch lawsuit. The high court is set to hear arguments on the appeal on Dec. 18.
In its petition to the Supreme Court, Energy Transfer claims the Dutch case “collaterally attacks the jury verdict” and is an attempt to sidestep North Dakota’s legal system.
“This Court’s intervention is needed to prevent a foreign entity (Greenpeace) from inviting a foreign tribunal to sit in judgment over North Dakota’s judiciary,” Energy Transfer wrote.
While Energy Transfer acknowledges no North Dakota court has ever attempted to pause a case in another country, they say it’s necessary in order to preserve the integrity of the North Dakota suit.
Greenpeace International has indicated it will participate in oral arguments before the high court in support of Gion’s decision. In legal documents, the organization said Energy Transfer has no basis for involving it in the North Dakota suit in the first place. It said it never had any staff visit North Dakota during the Dakota Access Pipeline protests, and that it only ever peripherally supported activism against the pipeline.
“International is a Netherlands entity with no connection to North Dakota,” it wrote. “It has thus consistently objected to Plaintiffs’ contentions that it could be haled into this jurisdiction to defend itself.”
Greenpeace was one of many activist groups that backed a movement led by the Standing Rock Sioux Tribe to halt construction of the Dakota Access Pipeline, which drew thousands of activists to protest in south-central North Dakota in 2016 and 2017.
The pipeline, often referred to as DAPL, carries crude oil from wells in northwest North Dakota to Illinois and has been in operation since 2017.
The state of North Dakota filed a friend-of-the-court brief in Energy Transfer’s appeal in support of neither party.
The Supreme Court should use the case as an opportunity to develop guidelines on how North Dakota courts should handle requests to halt foreign lawsuits in the future, the state argued.
“In our current era of increasing political polarization, cross-jurisdictional legal tensions are likely to recur as polities continue to be increasingly aggressive in adopting divergent laws,” it wrote.
According to the state’s brief, orders to pause overseas lawsuits are generally warranted when the foreign case is substantially similar to a domestic lawsuit, and when the foreign action could impede the United States’ ability to enforce its own laws.
Greenpeace International’s lawsuit was filed under a 2024 European Union directive meant to protect activists and whistleblowers who face arbitrary legal action for exercising their free speech rights.
Greenpeace International has said its case may be the first to be filed under the new law.
The state of North Dakota in its brief appeared critical of the directive, writing that it “may have been purposefully enacted to facilitate the filing of lawsuits to collaterally challenge or undermine judicial proceedings that occur in third countries.”
Gion has yet to enter a final judgment in the North Dakota lawsuit. Earlier this month, he cut the jury’s more than $660 million verdict against Greenpeace to about $345 million.
Greenpeace has indicated previously that once Gion enters a judgment, it will ask for a new trial. If that request is unsuccessful, they will appeal the case to the North Dakota Supreme Court.
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