davel

Paywall bypass: http://archive.today/2025.03.20-015329/https://www.nytimes.com/2025/03/19/climate/greenpeace-energy-transfer-dakota-access-verdict.html

A North Dakota jury on Wednesday awarded damages totaling more than $660 million to the Texas-based pipeline company Energy Transfer, which had sued Greenpeace over its role in protests nearly a decade ago against the Dakota Access Pipeline.

The verdict was a major blow to the environmental organization. Greenpeace had said that Energy Transfer’s claimed damages, in the range of $300 million, would be enough to put the group out of business in the United States. The jury on Wednesday awarded far more than that.

Greenpeace said it would appeal. The group has maintained that it played only a minor part in demonstrations led by the Standing Rock Sioux Tribe. It has portrayed the lawsuit as an attempt to stifle oil-industry critics.

The nine-person jury in the Morton County courthouse in Mandan, N.D., about 45 minutes north of where the protests took place, returned the verdict after roughly two days of deliberations.

It took about a half-hour simply to read out the long list of questions posed to the jurors, such as whether they found that Greenpeace had committed trespass, defamation and conspiracy, among other violations, and how much money they would award for each offense.

Afterward, outside the courthouse in Mandan, both sides invoked the right to free speech, but in very different ways.

“We should all be concerned about the attacks on our First Amendment, and lawsuits like this that really threaten our rights to peaceful protest and free speech,” said Deepa Padmanabha, a senior legal adviser for Greenpeace USA.

Just moments before, Trey Cox of the firm Gibson Dunn & Crutcher, the lead lawyer for Energy Transfer, had called the verdict “a powerful affirmation" of the First Amendment. “Peaceful protest is an inherent American right,” he said. “However, violent and destructive protest is unlawful and unacceptable.”

Earlier in the week, during closing arguments on Monday, Energy Transfer’s co-founder and board chairman, Kelcy Warren, an ally and donor to President Trump, had the last word for the plaintiffs when his lawyers played a recording of comments he made in a video deposition for the jurors. “We’ve got to stand up for ourselves,” Mr. Warren said, arguing that protesters had created “a total false narrative” about his company. “It was time to fight back.”

Energy Transfer is one of the largest pipeline companies in the country. The protests over its construction of the Dakota Access Pipeline drew national attention and thousands of people to monthslong encampments in 2016 and 2017.

The demonstrators gathered on and around the Standing Rock Sioux Reservation, arguing that the pipeline cut through sacred land and could endanger the local water supply. The Standing Rock Sioux Tribe sued to stop the project, and members of other tribes, environmentalists and celebrities were among the many who flocked to the rural area, including two figures who are now members of Mr. Trump’s cabinet: Robert F. Kennedy Jr. and Tulsi Gabbard.

But the protests erupted into acts of vandalism and violence at times, alienating people in the surrounding community in the Bismarck-Mandan area.

Greenpeace has long argued that the lawsuit was a threat to First Amendment rights, brought by a deep-pocketed plaintiff and carrying dangerous implications for organizations that speak out about a broad range of issues. Greenpeace has called the lawsuit a strategic lawsuit against public participation, or SLAPP suit, the term for cases meant to hinder free speech by raising the risk of expensive legal battles. Many states have laws that make it difficult to pursue such cases, though not North Dakota.

Mr. Cox laced into Greenpeace during closing arguments on Monday. The company accused Greenpeace of funding and supporting attacks and protests that delayed the pipeline’s construction, raised costs and harmed Energy Transfer’s reputation.

Jurors, Mr. Cox said, would have the “privilege” of telling the group that its actions were “unacceptable to the American way.” He laid out costs incurred that tallied up to about $340 million and asked for punitive damages on top of that.

“Greenpeace took a small, disorganized, local issue and exploited it to shut down the Dakota Access Pipeline and promote its own selfish agenda,” he said. “They thought they’d never get caught.”

The 1,172-mile underground pipeline has been operating since 2017 but is awaiting final permits for a small section where it crosses federal territory underneath Lake Oahe on the Missouri River, near Standing Rock. The tribe is still trying to shut down the pipeline in a different lawsuit.

Lawyers for Greenpeace called the case against the group a “ridiculous” attempt to pin blame on it for everything that happened during months of raucous protests, including federal-government delays in issuing permits.

Three Greenpeace entities were named in the lawsuit: Greenpeace Inc., Greenpeace Fund and Greenpeace International. Greenpeace Inc. is the arm of the group that organizes public campaigns and protests. It is based in Washington, as is Greenpeace Fund, which raises money and awards grants.

The third entity named in the lawsuit, Greenpeace International, based in Amsterdam, is the coordinating body for 25 independent Greenpeace groups around the world.

It was principally the actions of Greenpeace Inc. that were at the heart of the trial, which began Feb. 24. They included training people in protest tactics, dispatching its “rolling sunlight” solar-panel truck to provide power, and offering funds and other supplies. Greenpeace International maintained that its only involvement was signing a letter to banks expressing opposition to the pipeline, a document that was signed by hundreds and that had been drafted by a Dutch organization. Greenpeace Fund said it had no involvement.

On Wednesday, the jurors found Greenpeace Inc. liable for the vast majority of the damages awarded, which came to more than $660 million, according to representatives for both Greenpeace and Energy Transfer. The damages cover dozens of figures that were read out in court for each defendant on each claim.

Separately, Greenpeace International this year had countersued Energy Transfer in the Netherlands, invoking a new European Union directive against SLAPP suits as well as Dutch law.

During closing arguments on Monday in North Dakota, Everett Jack Jr. of the firm Davis Wright Tremaine, the lead lawyer for the Greenpeace Inc., was a study in contrast with Mr. Cox. Both men wore dark suits and red ties to make their final arguments before the jury. But their demeanors were polar opposites.

Mr. Cox was energetic, indignant, even wheeling out a cart stacked with boxes of evidence during his rebuttal to argue that he had proved his case. Mr. Jack was calm and measured, recounting the chronology of how the protests developed to make the case that they had swelled well before Greenpeace got involved.

Given the months of disruptions caused locally by the protests, the jury pool in the area was widely expected to favor Energy Transfer.

Among the observers in the courtroom were a group of lawyers calling themselves the Trial Monitoring Committee who criticized the court for denying a Greenpeace petition to move the trial to the bigger city of Fargo, which was not as affected by the protests. The group included Martin Garbus, a prominent First Amendment lawyer, and Steven Donziger, who is well-known for his yearslong legal battle with Chevron over pollution in Ecuador.

After the verdict, Mr. Garbus called it “the worst First Amendment case decision I have ever seen” and expressed concern that an appeal that reached the Supreme Court could be used to overturn decades of precedent around free-speech protections.

The group also took issue with the number of jurors with ties to the oil industry or who had expressed negative views of protests during jury selection. But Suja A. Thomas, a law professor at the University of Illinois and an expert on juries, said the precedent in North Dakota courts was not to use “blanket disqualifications of jurors just because they might have some kind of interest,” whether it’s financial or based on experience or opinion.

Rather, the judge has to determine whether each individual juror can be impartial. “There can be interest; they have to determine whether the interest is significant enough such that the person cannot be fair,” Ms. Thomas said.

Natali Segovia is the executive director of Water Protector Legal Collective, an Indigenous-led legal and advocacy nonprofit group that grew out of the Standing Rock protests. Ms. Segovia, who is also a member of the trial monitoring group, said her organization was involved with about 800 criminal cases that resulted from the protests. The vast majority have been dismissed, she said.

What had gotten lost during the Greenpeace trial, she said, was the concern about water that had spurred so much protest. She said she saw a larger dynamic at play. “At its core, it’s a proxy war against Indigenous sovereignty using an international environmental organization,” she said.

Bullets:

• The war in Ukraine consumes vast quantities of arms and ammunition, supplied almost entirely by the US and the EU.
• Battlefield demands in Ukraine far outstrip the combined production of the entire Western bloc.
• Arsenals across the EU are empty, and the United States is far more reluctant today to supply the Ukraine war effort.
• But Europe faces severe problems in their efforts to rearm, and to make good their public support and promises to Ukraine.
• Despite having a far smaller economy than either the US or the EU, Russia easily produces more ammunition and war materiel than the NATO countries, combined.
• Meanwhile, Russia's close ally China has the world's most productive industrial sector, and monopolies on the supply chains necessary to build armaments.
• Last year, China cut off exports of antimony, a critical component of explosives, and antimony prices have more than quadrupled in less than a year.

As our thrilling national descent into fascism proceeds day by day, along with it comes an increasingly frantic search for the answer to the question: “Who will save us?” The more ruthlessly the crank of oppression turns, the larger the pool of citizens becomes who begin casting their eyes to the horizon of American society in search of saviors. Where will we find those fabled heroes of civil society, those true believers in freedom and democracy, who will form the firewall to stop what is happening from happening?

None of us can predict the future, but it is possible to make some well-informed guesses about where we should—and should not—expect to see The Resistance forming in earnest. In any situation like ours, where a vindictive and dictatorial figure with no regard for law or morality is centralizing power in his own hands, it does not take a crystal ball to know how different groups will respond. It only takes an understanding of incentives, and of human nature. Here is one thing that I feel very confident in saying: The people and institutions in America who have the most will do the least in this fight. Do not be surprised when your search for saviors among the pillars of society fails.

Business will not save us.

Rich individuals will not save us.

The law will not save us.

Congress will not save us.

Universities will not save us.

Unions. Will unions save us? Organized labor is the most robust form of resistance to the type of oppression that is coming. That will not change. The existing union establishment, though, is vulnerable to the same forces that are pressing other institutions down into their holes. Big unions are entities completely enmeshed in a legal framework that the government is capable of manipulating or scrapping altogether. The administration just tossed out an existing union contract covering nearly 50,000 TSA agents. Is that “legal?” Maybe, though that is an illustration of the inadequacy of the law more than anything else. Is it an outrageous and existential attack on union power that demands a strike in response? Yes. But a strike would be illegal, and the workers could be fired, and the union itself could be subject to enormous fines and penalties, and it is extremely unlikely that a strike will happen. (I do not mean to portray this as an uncomplicated choice. Some of the most aggressive strikes in labor history have failed and destroyed entire unions and harmed worker power for decades to come. The dangers are very real.) What existing unions already have acts as a disincentive for them to take risks, lest they experience an abrupt and major loss. Instead, they will subject themselves to slower, more gradual losses: The government will make it hard to organize new members, easy for employers to retaliate against union drives, and public sector unions will be stripped of every last scrap of influence. I believe in the labor movement, but it would be dishonest not to observe that our own institutions have the same weak points as those discussed above.

So where does this leave us? If the most powerful and wealthiest parts of society will not form the vanguard of the resistance, who will? It is a question that answers itself. Grassroots movements made up of regular people are where the resistance has to happen. Ideally, enough pressure can be created from below to bolster the fearful institutions into joining the fight. But they will not lead it. At best, they will get on the right side of the fight when they make the judgment that doing so is a bet that has a reasonable chance of success. Allow your disappointment in this fact to be leavened by the knowledge that you, yourself, are the most important determination of what America’s future will look like. If you, and millions of people like you, resolve to stand up, we will win. We have the numbers. If you and I sit around waiting for all of those Respectable Institutions to take the lead, we will be spending the next few years doing nothing except being crestfallen by the inaction from above. I guess we might as well get to it, then. Don’t be sad you’re not rich. Be happy that you’re free.

As we watch the Trump administration’s foreign policy take shape, I am reminded of former President Barack Obama’s 2009 Cairo speech. That was the one where he promised that the US was seeking “a new beginning between the United States and Muslims around the world, one based upon mutual interest and mutual respect.” It was only six months into his presidency when we could still lie to ourselves that the Bush years were a just particularly abhorrent aberration.

There were shifts underway back in 2009 although they certainly didn’t have anything to do with mutual interest and respect. As Obama delivered his lies in Cairo, Obamaians were just gassing up the drones.

And the US shifted from invasion and occupation to more clandestine operations of destabilization, targeted killings, “leading from behind,” and humanitarian regime change operations. They helped craft the international liberal order often utilizing the human rights tools like LGTBQ+ rights, feminism and of course democracy to pursue the same goals as Bush the Younger. but in a more “woke” manner.

Yet this mode of empire had outlived its usefulness. A growing number of states are following Russia’s lead and cracking down on foreign funding of NGOs. There is the inability to bludgeon European voters upset over deteriorating living standards into submission using moralistic certitude. And the dam broke in the US where Trump — with the backing of the majority of plutocrats — is now dismantling this machinery. What will take its place?

Now there are actual shifts taking place under Trump (attempting to get out of Ukraine and dump it on the hapless Europeans, actualizing the long-planned pivot to Asia, a renewed emphasis on shipping lanes, cracking down on DEI and elements of the Blob that hounded him during first term and beyond), but all signs are that the underlying goals of empire remain: that US capital controls the world and can extract rent from every corner of the globe. This isn’t changing based on an election despite Obama’s repeated assurances that “the arc of the moral universe bends towards justice.”

A week ago I wrote about the repackaging of the empire sales pitch to the American working class. Here I’d like to focus on how the Trump rebrand is playing out across the world.

"If the students want to even see the evidence against them, they have to sign a restrictive privacy agreement, and the OIE has thus far been unwilling to amend or alter the contract in order to make it less restrictive. Essentially this agreement amounts to both a gag order and a contract of adhesion—sign or lose your ability to meaningfully participate in the process."

Title VI of the Civil Rights Act, enacted in 1964 to prevent institutions that engage in discrimination from receiving federal funds, states that “no person shall be subject to discrimination because of race, color, or national origin.” The OIE’s guidelines expand who is protected significantly to cover “citizenship or residency in a country with a dominant religion or distinct religious identity,” as well as “veteran or active military status,” as elements of membership in a “protected class.” In this interpretation, negative statements about Israel, or even membership in the Israeli military, could count as prohibited speech resulting in sanction by the university – even if no specific person is being discriminated against.

As an administrative body run by the university, the OIE has the power to both investigate and render verdicts against students based on its findings. If the OIE finds the student is guilty of discriminatory harassment, the OIE and the dean of the school will then convene separately to determine what type of punishment the student will face—outside of their presence. Students can also be subjected to provisional punishments like withholding of diplomas or suspension from campus before a finding is even made on their case.

The use of the OIE comes at a time when the Trump administration is escalating threats against schools where large protests have been led by students since the start of Israel’s war in Gaza. On Tuesday, Trump posted on Truth Social that, “All Federal Funding will STOP for any College, School, or University that allows illegal protests. Agitators will be imprisoned/or permanently sent back to the country from which they came. American students will be permanently expelled or, depending on the crime, arrested.”

In addition to creating a mechanism for anonymous complaints about individuals on campus to be submitted, the OIE’s expansive definition of discrimination can also target faculty, staff, and student workers for “failure to report”—meaning that even failing to a report an incident to the OIE that another party later deemed discriminatory could result in disciplinary measures. Students who have been called into hearings with the office say that they have been pressured to give names of other students that the office suspected to be involved in campus protest activity.

Individuals who have had disciplinary records created by the office could also have that information turned over to law enforcement and even the U.S. Congress, which has indicated an interest in regulating pro-Palestinian speech on campus and even seeking deportations and other measures against students who have engaged in speech deemed hostile to Israel. Congress has demanded that schools hand over disciplinary records of students involved in protests, amid growing pressure on schools to comply.

In recent weeks, Columbia has announced the expulsion of a number of students for participating in protests at the school. The expulsions come amid announcements by the Department of Justice’s new task force on antisemitism that it plans to visit Columbia and several other universities that were sites of anti-Israel protest over the past year. That effort has also been supported by private sector actors that have made surveillance and targeting of students over their speech on the subject a priority.

“Anybody can go on the website of the OIE and file a complaint. They can take screenshots of posts from Instagram, photographs of art pieces, submit social media comments out of context, and even quote people without actual proof other than that someone alleges they said something,” added Greer. “We have seen a proliferation of these cases since the OIE office was opened, the complaints are just flooding in.”

Transformation of quantity into quality