Energy Transfer lawsuit (re Dakota Access Pipeline, USA)

On 22 August 2017, Energy Transfer filed a lawsuit against NGOs and others, including Greenpeace, BankTrack, and Earth First!, in the US District Court of North Dakota over their campaigning around the construction of the Dakota Access Pipeline. Energy Transfer accuses the NGOs of allegedly violating the Racketeer Influenced and Corrupt Organizations Act (RICO Act) through criminal activity and misinformation about the pipeline’s impacts on tribal lands and the environment, and of inflicting financial damage to the company. The NGOs deny the allegations.

The plaintiffs, Energy Transfer Partner and Energy Transfer Equity (both part of Energy Transfer), allege racketeering, conspiracy, defamation, and interference with existing and prospective business relationship. They argue that the pipeline project is mainly located on private lands which was rerouted to avoid sacred and cultural sites, with extensively prior consultation of Rock Sioux Tribe. The companies maintain that this project provides an efficient, safer and better environmental option to transport oil and avoid oil spills in comparison with other means of transportation. According to Energy Transfer the NGOs misrepresented peaceful protestors in North Dakota and were involved in criminal activities such as civil trespass, rioting, assault, menacing, attacks, and destruction of property. The company is seeking compensatory damages.

The NGOs reject the accusations. They consider that this lawsuit is without merit and that it is an attempt by Energy transfer to silence civil society organizations. Greenpeace said the lawsuit was a “Strategic Lawsuit Against Public Participation (SLAPP), which is intended to censor or intimidate critics by burdening them with expensive, time-consuming litigation”. 

In November 2017, BankTrack and Greenpeace filed motions with the District Court of North Dakota to have Energy Transfer's claims against them dismissed for lack of merit. In December 2017, the Center for Constitutional Rights (CCR) filed a memorandum asking for the suit against EarthFirst! to be dismissed as it is a "philosophy" or "movement", and in January 2018 served the companies' attorneys with advanced warning of a motion for sanctions for abuse of legal process. On 6 February 2018, the motion was filed in the US District Court of North Dakota.

Swiss NGO ‘Society for Threatened Peoples’ have also filed a complaint in relation to the Dakota Access Pipeline (DAPL) with the Swiss National Contact Point (NCP) on 24 April 2017. The complaint concerns the ongoing business and financial involvement of Credit Suisse with other companies (including Energy Transfer) linked to the DAPL. On 19 October 2017 the Swiss NCP accepted the request for mediation, and the complaint is on-going.

On 24 July 2018, the North Dakota District Court dismissed Energy Transfer's lawsuit against BankTrack, ruling that the company failed to state a plausible claim against the defendant.  On 3 August 2018, the court blocked Energy Transfer Partners from continuing a lawsuit against the environmental movement Eart First!, and denied the company's petition to include the Earth First Journal as a defendant.  On 6 August 2018, Energy Transfer Partners brought an amended lawsuit, limiting defamation and business interference claims to Greenpeace and adding criminal trespass allegations against all defendants. The amended lawsuit also mentions five new individual defendants, including a man allegedly affiliated with Greenpeace and 2 people associated with the protest group “Red Warrior Camp”.  On 4 September 2018, Greenpeace filed a motion to dismiss the lawsuit against them, arguing that Energy Transfer's revised allegations are "generalized and implausible".

- "Corporate Bullies" Are Using RICO Laws to Go After Greenpeace",  Rebecca Leber, Mother Jones (USA),18 Oct 2017
- "Energy Transfer Suit Claims Greenpeace Incites Eco-Terrorism", Andrew M Harris & Tim Loh, Bloomberg, 22 Aug 2017
- "Dakota Access Pipeline owner sues Greenpeace, arguing it broke organized crime law", Dino Grandoni, Washington Post (USA), 22 Aug 2017

Energy Transfer
Energy Transfer Files Federal Lawsuit Against Greenpeace International, Greenpeace Inc., Greenpeace Fund, Inc., BankTrack And Earth First! For Violation Of Federal And State Racketeering Statutes, 22 Aug 2017

Greenpeace Files Motions to Dismiss in "Meritless" Standing Rock Suit, 29 Nov 2017
- [PDF] United States District Court of North Dakota Western Division  - Motion to dismiss and Memorandum in support, 29 Nov 2017
Greenpeace v. Energy Transfer Partners: The Facts, Aug 2017

- [PDF] United States District Court of North Dakota - Decision on motion to dismiss, 24 July 2018
- [PDF] United States District Court of North Dakota Western Division  - Motion to dismiss, 29 Nov 2017
BankTrack statement on Dakota Access Pipeline lawsuit filed by ETP/ETE, 22 Aug 2017


Court Should Sanction Pipeline Lawyers, Rights Attorneys Say, 6 Feb 2018
Groups Demand Sanctions Against Dakota Access Pipeline Attorneys, 10 Jan 2017
Trump Lawyers Attempt to Sue an Environmental Philosophy under Anti-Racketeering Laws, 5 Dec 2017
Memorandum In Opposition To Plaintiffs’ Motion For Declaration Of Effective Service On Defendant Earth First!, 4 Dec 2017

Earth First!
- [PDF] United States District Court of North Dakota Western Division - Motion for santion, 6 Feb 2017

Vogel Law firm & Kasowitz Benson Torres LLP (Attorneys for plaintiffs)
Energy Transfer Equity, LP., and Energy Transfer Partners, LP. vs. Greenpeace International; Bancktrack; Earth First! & John and Jane Does, 22 Aug 2017

On Swiss NCP complaint:
-Initial Assessment: Specific Instance regarding Credit Suisse submitted by the Society for Threatened Peoples Switzerland, 19 October 2017
-Society for Threatened Peoples vs. Credit Suisse, OECD Watch
-Society for Threatened Peoples files OECD complaint against Credit Suisse at the OECD National Contact Point (NCP) Switzerland, 28 April 2017

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5 September 2018

Greenpeace wants Dakota Access racketeering suit dismissed

Author: Blake Nicholson, CNBC (USA)

The lone remaining environmental group facing racketeering accusations by the developer of the Dakota Access oil pipeline has asked a federal judge to be dismissed from the case.  Greenpeace attorneys on Tuesday filed documents arguing that revised allegations by Texas-based Energy Transfer Partners under the Racketeer Influenced and Corrupt Organizations Act are "generalized and implausible."...U.S. District Judge Billy Roy Wilson...dismissed both BankTrack and Earth First as defendants.  In July, he denied a motion by Greenpeace to be dismissed, as well, but he also ordered ETP to revise the lawsuit that he said contained vague claims.  Company lawyers did so last month.  Greenpeace attorneys maintain that "ETP has utterly failed to follow the court's direction," and that the amended lawsuit "contains much the same inflammatory, insubstantial language" as before.  ETP spokeswoman Vicki Granado declined comment...Company lawyers...asked Wilson to reconsider his late August order that the company identify 20 unnamed individual defendants in its lawsuit within a month or have them dismissed as defendants.  ETP wants the opportunity to gather more evidence to properly identify the people that it alleges played a role in inciting a massive protest against the pipeline while it was being built...

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7 August 2018

USA: Court blocks lawsuit against Earth First! filed by Energy Transfer Partners over campaign opposing Dakota Access pipeline

Author: Center for Constitutional Rights

"Judge Slams Pipeline Corporation for Frivolous Legal Claims Against Activists", 3 Aug 2018

...[A] federal judge blocked Energy Transfer Partners (ETP), the corporation behind the Dakota Access Pipeline, from continuing a lawsuit against Earth First!. ETP had filed a...lawsuit, claiming the environmental movement Earth First! had funded a violent terrorist presence and criminal enterprise at the Standing Rock protests...[T]he court rejected ETP’s allegations as factually unsupported.  The judge also blocked ETP’s attempt to collect discovery against the Earth First! Journal, a non-party in the suit...The judge had given ETP until today to provide a sufficient reason why he should not dismiss Earth First! from the lawsuit...After the judge ruled that Earth First! had not been properly served, ETP sought permission to take discovery against Earth First! Journal or amend the complaint to include the Journal as a defendant...Amending the complaint to add Earth First! Journal as a party responsible for an alleged criminal enterprise would be “futile and possibly frivolous,” the judge wrote...

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7 August 2018

USA: Energy Transfer Partners adds more defendants to its lawsuit against NGOs over campaign opposing Dakota Access pipeline

Author: Blake Nicholson, Star Tribune (USA)

"Dakota Access developer amends $1B racketeering lawsuit", 6 Aug 2018

The developer of the Dakota Access oil pipeline...amended a $1 billion racketeering lawsuit it filed last August against three environmental entities after a federal judge criticized the original filing as vague and threatened to throw it out of court...U.S. District Judge Billy Roy Wilson said Texas-based Energy Transfer Partners hadn't proven its case against the Earth First environmental movement, though he said it could sue individual members if it had enough evidence...ETP...added five individual defendants: a man allegedly affiliated with Greenpeace, two Iowa women who have publicly claimed to have vandalized the pipeline, and two people associated with the Red Warrior Camp, a protest group alleged to have advocated aggressive tactics such as arson.  The company also amended its accusations, limiting defamation and business interference claims to Greenpeace and adding a criminal trespass count against all defendants...Wilson had ordered ETP to show why Earth First shouldn't be tossed. Company attorneys...argued that ETP...should be given permission to add the...Earth First Journal to the lawsuit.  Wilson...ruled that naming the Journal as a defendant "would be futile and possibly frivolous."  He also denied ETP the opportunity to gather more evidence to prove its case...Wilson said he would allow ETP to add to the lawsuit "any person or entity" directly responsible for such acts, though he added that any additions must be supported by evidence...

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25 July 2018

USA: Court dismisses Energy Transfer's lawsuit against BankTrack over campaign opposing construction of Dakota Access Pipeline

Author: BankTrack

"Judge dismisses DAPL case against BankTrack in full", 25 July 2018

The lawsuit filed against BankTrack by Energy Transfer Partners (ETP), the company behind the Dakota Access Pipeline, has been dismissed by a North Dakota District Court.  The judge ruled that Energy Transfer had failed to state a plausible Racketeer Influenced and Corrupt Organisations Act (RICO) claim against BankTrack, and that without that, the court has no jurisdiction over BankTrack for the additional non-federal claims...BankTrack director Johan Frijns said: “We’re very pleased to learn that the frivolous claims against BankTrack have been dismissed...BankTrack raised legitimate human rights concerns arising from the Dakota Access Pipeline with the banks financing the project...We hope the judge will now similarly dismiss the case against the other defendants...”...BankTrack, Earth First! and Greenpeace were named as defendants in the lawsuit by Energy Transfer Equity and Energy Transfer Partners (ETE and ETP), the companies behind the Dakota Access Pipeline, in September 2017...

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24 July 2018

Energy Transfer et al. v. Greenpeace et al. - Decision on BankTrack's motion to dismiss

Author: North Dakota District Court (USA)

Download the full document here

6 February 2018

Court Should Sanction Pipeline Lawyers, Rights Attorneys Say

Author: Center for Constitutional Rights (CCR)

Yesterday, the Center for Constitutional Rights (CCR) and Earth First! Journal urged a federal court to impose sanctions against Donald Trump's go-to law firm, Kasowitz Benson Torres, which represents corporations developing the Dakota Access Pipeline. The sanctions motion claims that Energy Transfer Partners (ETP) and Energy Transfer Equity (ETE) misused the legal system by suing "Earth First!" for federal racketeering, despite knowing that "Earth First!" is a philosophy or an idea, not an entity that can be sued.

...Last month, CCR served Kasowitz Benson Torres and its co-counsel the Vogel Law Firm with the motion, as the primary rule governing sanctions requires that the offending lawyers receive advance notice of a sanctions motion in order to give them the opportunity to withdraw their improperly filed papers. Kasowitz Benson Torres and the Vogel Law Firm have not done so...

...“Trump’s lawyers were given an opportunity to withdraw papers they knew were improper and avoid sanctions,” ... “Their refusal leaves no doubt that the aim of this lawsuit is not to address racketeering, but to scare activists opposing pipelines into silence. It’s not working.”


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7 December 2017

USA: Court must dismiss Energy Transfer's suit against EarthFirst! as it is a philosophy, NGO says

Author: Center for Constitutional Rights (CCR)

" Trump Lawyers Attempt to Sue an Environmental Philosophy under Anti-Racketeering Laws ", 5 Dec 2017

On behalf of the environmental magazine the Earth First! Journal, the Center for Constitutional Rights urged a court to dismiss parts of a lawsuit brought by Energy Transfer Partners (ETP) and Energy Transfer Equity (ETE)...[which] have attempted to sue the broad social movement known as Earth First! for racketeering. 

...Today’s filing points out that the plaintiff pipeline companies themselves admit Earth First! is a “philosophy” or “movement” with “no members” or “formal leadership”; as a matter of law, therefore, it cannot be sued. Trump’s lawyers nonetheless attempted to serve the movement Earth First! by mailing a complaint to the offices of the Earth First! Journal in Lake Worth, Florida, a small collective typically made up of two to five staff members.

...Advocates say the suits are part of the ongoing labeling of social activism as terrorism, from environmental and animal rights activism to the Black Lives Matter movement.

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23 October 2017

Commentary: Companies' lawsuits against environmental groups threaten free speech & advocacy

Author: Rebecca Leber, Mother Jones (USA)

"Corporate Bullies" Are Using RICO Laws to Go After Greenpeace ", 18 Oct 2017

Increasingly, Greenpeace has become the target of major corporations that have argued its aggressive campaigning...constitutes “illegal enterprises” better suited to prosecution under a law that’s known for going after the Mafia. 

...Resolute Forest Products used the Racketeer Influenced and Corrupt Organization Act (RICO) to accuse Greenpeace of “fraudulently” inducing people all over the world “to donate millions of dollars based on materially false and misleading claims about its purported environmental purpose and its ‘campaigns’ against targeted companies.”

...Free speech advocates also consider the case to be another example of a SLAPP [strategic lawsuit against public participation] lawsuit...[T]he judge found that the case applies to California’s anti-SLAPP law…

...A more serious suit was filed in August by Energy Transfer Partners—the firm behind the Dakota Access Pipeline—against Greenpeace and other environmental groups. Energy Transfer Partners sued the groups this summer also by claiming RICO applies. That case could entitle Energy Transfer Partners to $1 billion in damages if it is successful. Even if they ultimately fail, Greenpeace resources will be tied up in legal fees fighting the charges.

...For First Amendment advocates, these RICO cases against environmental groups are a way of distracting from more serious questions of free speech.

[Also refers to ExxonMobil]

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29 August 2017

Nordic investors reject Dakota pipeline operator’s allegations

Author: Nerijus Adomaitis & Ethan Lou, Reuters

Nordic investors rejected on Tuesday allegations in a lawsuit by the operator of Dakota Access Pipeline (DAPL) that they divested from the project due to pressure from Greenpeace and other environmental groups…

The pipeline’s operator Energy Transfer Partners LP sued Greenpeace last week, saying the negative publicity against it, its sister company Energy Transfer Equity LP and other firms caused billions of dollars in damage.

Nordic bank Nordea, Norwegian private pension fund Storebrand, Norway’s public sector pension fund KLP and Norwegian commercial bank DNB, mentioned in the lawsuit, said their decisions to divest from the DAPL and companies involved was a result of their own due diligence…

“We find it puzzling that ETP refers to KLP’s decision in its discussion of alleged damages when the company made no effort to avail itself of multiple opportunities for comment,” KLP’s acting head of responsible investments Annie Bersagel told Reuters…

KLP said in March its decision was based on “an unacceptable risk of contributing to serious or systematic human rights violations.”…

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25 August 2017

Dakota pipeline lawsuit against campaign groups: the SRI sector reacts [subscription required]

Author: Paul Verney, Responsible Investor

Energy Transfer Partners’ lawsuit against NGOs it terms “rogue eco-terrorists” could damage future investments in controversial projects such as the Dakota Access Pipeline (DAPL) project, according to sustainable investment industry figures...

Peter Chapman, Executive Director of Canadian shareholder body SHARE...said: “Lawsuits against civil society organizations that are initiated by corporations risk reputational damage for companies and their shareholders and financing partners.

“Investors look for company commitment to good relations with indigenous communities backed up sound management, good governance and successful implementation. Investors expect companies to learn from their experience and be forward-looking.”...

Boston Common helped lead the investor coalition that issued the investor statement in February to the 17 banks financing the project and it also helped organize other investor initiatives regarding DAPL including recruiting lead investors that filed shareholder proposals with Marathon Petroleum, Enbridge and Phillips 66.

Heim said he expected the coalition of investors that he's worked with on DAPL to share its view that pipeline companies should have a consultative process with Indigenous Peoples...

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