A controversial pipeline across the Dakotas — which is at the center of a dizzying array of lawsuits that threaten to bankrupt Greenpeace — has received a major endorsement from the federal government.
On Friday, the Army Corps of Engineers, which manages land that the pipeline, the Dakota Access Pipeline, crosses at Lake Oahe, released a long-awaited environmental impact statement. The nearly 500-page document concluded that the pipeline could continue operating while recommending additional safety measures to protect water in the area.
The report’s finding wasn’t unexpected, and the government’s decision must still be finalized. But it’s important because it could weaken long-running litigation against the Dakota Access Pipeline filed by the Standing Rock Sioux Tribe, which claimed that the pipeline was operating illegally because it lacked a crucial easement and a final environmental impact report. The latest lawsuit was dismissed in March, and the tribe has appealed the decision.
Gov. Kelly Armstrong of North Dakota heralded the Army Corps report, saying the pipeline “has become an essential part of our nation’s energy infrastructure.” A lawyer for the tribe did not respond immediately to a request for comment.
The report came a day after two extraordinary court hearings in another matter related to the pipeline: a battle between Greenpeace and Energy Transfer, the pipeline company. The two have been fighting for years over Greenpeace’s role in protests against the pipeline nearly a decade ago that were led by the Standing Rock Sioux Tribe and attracted thousands of people. Energy Transfer accused Greenpeace of playing a key role in the protests, which the environmental group has denied.
Earlier this year, Energy Transfer won a major victory — hundreds of millions of dollars in damages that threatened to bankrupt Greenpeace in the United States.
On Thursday, as the two sides continued to spar, Judge James Gion, who oversaw the trial, expressed exasperation from the bench. “I’m Energy Transfer-Greenpeace’d out,” he said.
Later, he recalled “the hours that I spent reading, and then rereading, and then going down and telling my wife, ‘I think I should resign.’” He called the case “torturous,” saying, “we are in areas of the law that I don’t know if they even talked about in law school.”
In yet another hearing on Thursday, at the North Dakota Supreme Court, Energy Transfer sought to persuade the justices to force Judge Gion to issue an injunction against Greenpeace International, the group’s coordinating body, based in Amsterdam, to stop the group from suing Energy Transfer in Dutch courts.
In other words, Energy Transfer wants a court in the United States to try to block a lawsuit in a different country. (Greenpeace International was one of three Greenpeace entities sued by Energy Transfer; the other two constitute Greenpeace USA.)
The Dutch legal action claims that Energy Transfer’s lawsuit in the United States was illegal, under European rules, because it was an attempt to silence critics of the pipeline company through costly and time-consuming litigation. That’s what is known as a SLAPP suit, or Strategic Litigation Against Public Participation.
Greenpeace International said its only participation in the pipeline protests involved signing a letter to financiers of the project.
Earlier this year, Judge Gion denied Energy Transfer’s request to issue an injunction against the Dutch lawsuit. Such injunctions are rarely granted, based on the notion that they can be seen as interfering with another country’s affairs. Energy Transfer is now asking North Dakota’s top court to force Judge Gion to reverse that decision, arguing that Greenpeace is trying to avoid paying any judgment.
“Greenpeace ran to Amsterdam seeking, quote, protection from this lawsuit,” said Brad Hubbard, a lawyer for Energy Transfer.
Elizabeth A. Elsberry, who argued on behalf of Greenpeace International, asked the court to uphold Judge Gion’s decision, noting that he found the claims in the two lawsuits were starkly different.
The five-judge panel was left to grapple with complicated questions, including the details of European laws and how they compare with American ones. Most American states have anti-SLAPP laws, for example, though North Dakota does not. But those laws simply allow judges to dismiss cases in their early stages, not to award damages.
The proceedings — particularly the one at the North Dakota Supreme Court — were being closely watched as one of the first tests of the new European anti-SLAPP directive.
Jasmijn de Zeeuw, a researcher at Free Press Unlimited, an international press-freedom organization based in Amsterdam, said the directive came in response to the 2017 killing of the Maltese investigative journalist Daphne Caruana Galizia, who was facing numerous lawsuits. Ms. de Zeeuw said Greenpeace International was “using the European anti-SLAPP Directive exactly as it was intended: to protect public watchdogs against legal bullying.”
Judge Gion is scheduled to hold another hearing on Jan. 23. If he finalizes the verdict, it would allow Greenpeace to request a new trial and then appeal if that request is denied.
Karen Zraick covers legal affairs for the Climate desk and the courtroom clashes playing out over climate and environmental policy.
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