(The Center Square) – Eight years after the completion of the Dakota Access Pipeline (DAPL) and accompanying protests at the Standing Rock Sioux Reservation, the long-awaited trial between Energy Transfer and Greenpeace is winding down. Closing arguments in the trial are set to begin Monday, followed by jury deliberations and a verdict.
The lawsuit hinges on Greenpeace’s involvement in protests that occurred in the fall of 2016, as well as its communication with banks that were financing the pipeline’s construction.
Energy Transfer has tried to prove that the environmental activist group funded and incited violence, trespassing and other unlawful acts, delaying the project’s completion by five months, causing financial losses for the company. Energy Transfer also alleges that through defamation, Greenpeace pressured nearly half of the pipeline’s investors to withdraw or reduce their support for the project.
Greenpeace maintains that it does not promote or support violent protests, and that it only relayed information it believed was true at the time and that the pipeline’s investors stepped back from the project for reasons of their own.
Much of Energy Transfer’s allegations stem from Greenpeace’s ties to the Red Warrior Society, a Native American resistance group that led multiple attacks and demonstrations on pipeline construction sites, “brandishing weapons,” assaulting a security guard, throwing rocks and bottles at cars, and launching Molotov cocktails at police while burning construction equipment, according to the energy company’s complaint. Red Warrior Society felt the project was infringing on sacred tribal territory.
The first major confrontation with pipeline employees led by the Red Warrior Society occurred on Aug. 10, 2016, and several more followed through mid-September. Meanwhile, Greenpeace led supply drives for the Red Warrior Camp at Standing Rock in 10 cities across the U.S. through at least Sept. 19, according to the complaint.
Energy Transfer called Red Warrior Society an “informal organization of the most violent, most radical anti-DAPL activists in North Dakota and across the country.”
“Red Warrior Society, and its members at Red Warrior Camp, distinguished themselves from other activists by their express rejection of non-violent protest, and embrace of ‘militant direct action’ tactics,” reads Energy Transfer’s Second Amended Complaint.
Greenpeace also encouraged the banks backing the pipeline to withdraw from the project, circulating what Energy Transfer has called “defamatory statements” both online and in more personal interactions. Greenpeace said that the company had “deliberately desecrated documented burial grounds and other culturally important sites” and that the pipeline crossed tribal land.
Energy Transfer finished installation of the roughly 1,200-mile pipeline in 2017 in the wake of the intense protests by the Standing Rock Sioux Tribe. The company cites the protests as the reason for a five-month delay in the pipeline’s completion, forcing it to miss a Jan. 1, 2017, online production date that cost them lost profits and shareholder value.
Dallas-based Energy Transfer is suing Greenpeace for $300 million.
It became clear through expert witness testimony from Sebastian Braun, Iowa State University’s director of American Indian Studies and a professor of political science, that the reason Energy Transfer claims it did not cross tribal land, while Greenpeace maintains it did, is based on the definition of tribal land. The pipeline does not cross reservation land, but it does cross land designated as tribal land in the Treaty of 1868. The U.S. government, the Supreme Court ruled in 1980, later violated that treaty in an unlawful taking of some Sioux land. The tribe still considers its tribal land to be what was outlined in the treaty.
Braun also instructed the court on sacred sites and said that sometimes – and maybe more often than not – the only people who can identify whether land is sacred to a particular tribe are members of that tribe. According to Energy Transfer, the Sioux tribe refused to meet with the company enough times to ensure it had a proper rendering of the sites. Other tribes did sufficiently meet with Energy Transfer, the company says, which resulted in 140 modifications to the pipeline’s route to accommodate special cultural or historical sites.
The company cited the 2016 ruling from the U.S. District Court for the District of Columbia in Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers as evidence that it did its due diligence working to avoid sites of particular significance to indigenous groups.
“[T]his is not a case about empty gestures. . . . [T]he Corps and the Tribe engaged in meaningful exchanges that in some cases resulted in concrete changes to the pipeline’s route,” the judge ruled.
However, in 2020, the judge partially reversed his decision and determined a more thorough environmental assessment needed to be done.
Both Energy Transfer and Greenpeace rested their cases Thursday, after two weeks of witnesses from Energy Transfer and one week of witnesses from Greenpeace.
Heading into the trial’s final days, the jury will be reminded in jury instructions – the judge’s guidance on the law that needs to be applied to the case, developed with input from both the defendants’ and plaintiffs’ legal counsel – that the standard of proof in a civil trial is lower than it is in a criminal trial. The standard of proof in criminal trials is “beyond a reasonable doubt.” In civil cases like this, the standard of proof is either “preponderance of the evidence” or “clear and convincing evidence.”
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North Dakota law also requires that circumstantial evidence be considered just as thoughtfully and impartially as direct evidence, reflecting that neither is inherently superior to the other.
The judge is expected to give the jury its final instructions Monday, followed by closing arguments from both parties. The jury will begin deliberations after closing arguments.