Pipeline developer goes to ND Supreme Court seeking to block Greenpeace Netherlands lawsuit

BISMARCK, N.D. (North Dakota Monitor) — A court case involving Greenpeace and the Dakota Access Pipeline developer went before the North Dakota Supreme Court on Thursday, with justices asked to stop a counter-suit pending in the Netherlands.

Amsterdam-based Greenpeace International is a defendant in an ongoing lawsuit in North Dakota district court, where Energy Transfer accuses it and two other Greenpeace entities of conspiring to use unlawful tactics to stop the Dakota Access Pipeline from being built.

All three Greenpeace defendants deny the allegations and claim the case is a tactic to waste their time and money as punishment for opposing the pipeline.

This led Greenpeace International to counter-sue Energy Transfer in a Dutch court in February under a European Union directive that provides recourse to those targeted by frivolous lawsuits for exercising their free speech.

The overseas lawsuit also argues Energy Transfer harmed Greenpeace International by bringing a similar federal lawsuit against it in 2017, which was dismissed, and for defaming the environmental group.

Greenpeace International wants the Dutch court to order Energy Transfer to award it monetary damages.

Energy Transfer this summer asked Southwest Judicial District Court Judge James Gion to suspend the Dutch lawsuit until the North Dakota case plays out, which Gion denied in September. Energy Transfer appealed the decision.

“Rather than take responsibility for its misconduct, Greenpeace ran to Amsterdam seeking ‘protection’ from this lawsuit,” Brad Hubbard, an attorney arguing for the pipeline developer, told the North Dakota Supreme Court on Thursday.

Brad Hubbard, representing Dakota Access Pipeline developer Energy Transfer, asks the North Dakota Supreme Court to block a foreign lawsuit against the company brought by Greenpeace International. (Photo by Kyle Martin/For the North Dakota Monitor)

Gion found that the lawsuits are about fundamentally different legal claims, so he didn’t think it necessary to stop the foreign action.

Hubbard disputed Gion’s conclusion that the cases don’t overlap. He said the European Union directive is designed to undermine the authority of foreign courts.

“This court’s intervention is needed to block the wasteful litigation of the issues tried and decided by the jury,” he said.

Betsy Elsberry, an attorney representing Greenpeace International, said the overseas lawsuit is wholly separate from the case before Gion.

Elsberry also argued that Gion acted within his discretion as district court judge when he denied Energy Transfer’s request.

“It is Judge Gion who listened to the North Dakota claims for three weeks,” she told the high court. “He determined that they are not the same as those being brought forth in the Dutch court.”

Jurisdiction was another recurring issue during the hearing.

Some of the justices asked why Greenpeace International filed the suit in the Netherlands as opposed to seeking relief by bringing counterclaims in North Dakota.

Elsberry said it would be improper to bring such claims in North Dakota since Greenpeace International is a Dutch organization, and Energy Transfer is headquartered in Texas. North Dakota courts wouldn’t have jurisdiction, she said.

Gion doesn’t have the authority to stop the Dutch case for similar reasons, Elsberry added.

Chief Justice Jon Jensen said the North Dakota Supreme Court will take the matter under advisement. District court judges James Shockman and Stephanie Hayden sat on the court in place of Justices Douglas Bahr and Daniel Crothers, who recused.

Gion has yet to make a final decision on the outcome of the lawsuit.

A Morton County jury in March handed down a more than $660 million verdict against Greenpeace after a three-and-a-half week trial. Gion recently cut that sum by about half.

Energy Transfer said previously it planned to ask the North Dakota Supreme Court to reverse Gion’s revisions to the defamation and conspiracy awards.

Marco Simons, interim general counsel for Greenpeace’s USA affiliate, said once Gion enters a final judgment, they plan to ask for a new trial. If that request is unsuccessful, they will appeal.

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.

North Dakota Monitor reporter Mary Steurer can be reached at msteurer@northdakotamonitor.com.