What I observed in North Dakota was shocking. Greenpeace lost the trial not because it did something wrong, but because it was denied a fair trial.

Steven Donziger

Mar 26, 2025

(Please consider upgrading to a paid subscription. This is one of the few ways I can generate income after Chevron took my law license and President Biden denied me a pardon. If not, no worries. Please read on.)

Donziger On Justice is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber.Subscribe

The stunning jury verdict last week for $667 million against Greenpeace in North Dakota state court is a direct attack on the climate movement, Indigenous Peoples, and the First  Amendment. The proceedings were so deeply flawed – at core the trial was really about crushing  dissent — that I believe there is a good chance it will be reversed on appeal and ultimately backfire against the plaintiff Energy Transfer pipeline company. 

While some are suggesting this verdict could spell the end of Greenpeace, I actually think the organization could emerge from the experience stronger and more resilient.

I am part of an independent monitoring team of nine attorneys and four prominent human rights advocates that sat through every minute of the three-week trial, held in a nondescript courthouse in rural Morton County. Energy Transfer sued Greenpeace for alleged damages it claimed derived from the historic Indigenous-led Standing Rock protests in 2016 against the Dakota Access Pipeline. Our presence in court was essential given that the company was able to shroud the trial in secrecy. There was no court reporter and there still is no public transcript or recording of the proceedings, although we are currently writing a comprehensive report documenting what happened.

What we observed was shocking. We believe Greenpeace lost not because it did something wrong, but because it was denied a fair trial. 

The legendary US human rights attorney Marty Garbus, a member of our team who has practiced law for more than six decades and who represented Nelson Mandela and Vaclav Havel, said it was the most unfair trial he had ever witnessed. This is precisely why many of the monitors believe there is a good chance Greenpeace will not pay the first  dollar of the judgement and might actually recoup significant damages from Energy Transfer in a separate case in Europe. That case, currently being heard in Dutch courts, would entitle Greenpeace to compensation based on a finding that the North Dakota case is an illegitimate attempt to squelch free speech. 

This case against Greenpeace is widely regarded by First Amendment scholars as a SLAPP harassment lawsuit (SLAPP stands for Strategic Lawsuit Against Public Participation). SLAPPs are designed not to resolve legitimate legal claims, but to use courts to try to intimidate, silence, and even bankrupt an adversary. SLAPP lawsuits by their very nature violate the Constitution because they trespass on the First Amendment right to speech. Allowing such cases to proceed almost always saddles the target with backbreaking legal expenses that can silence even the most resilient leaders and organizations. 

Energy Transfer’s plan was to use the case to try to silence Greenpeace, but the case was never just about Greenpeace.

It was really about using Greenpeace as a proxy to attack the sovereignty of the Standing Rock Sioux Tribe (which led the protests and on whose land the pipeline was routed) as well as the broader climate justice movement which is trying mightily to transition our country to a clean energy economy. The protests and the climate movement’s goals are a direct threat to Energy Transfer’s business model.

That might help explain why Kelcy Warren, the founder and CEO of Energy Transfer, said the  main purpose of the lawsuit against Greenpeace was to “send a message” rather than to  collect money. A major Trump supporter and the mastermind of the lawsuit, Warren once  gave an interview where he said activists “should be removed from the gene pool.” After making a major contribution to Donald Trump’s inaugural committee in 2017, the Trump Administration quickly approved a key easement for the North Dakota pipeline that had  been denied by President Obama.  

Donziger On Justice is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber.Subscribe

The case against Greenpeace has all the telltale signs of an illegitimate SLAPP – so much so that it was originally thrown out of federal court in 2019. In that earlier iteration of the case, Energy Transfer openly claimed Greenpeace had engaged in a racketeering conspiracy and “terrorism” by speaking out against the pipeline and by doing training at the site in non-violent direct action. The company quickly refiled the case in the more friendly confines of state court. Literally every single judge in the judicial district where it was filed recused themselves because of conflicts of interest.

Here are just some of the fundamental problems we observed that clearly violated the fair trial rights of Greenpeace:

• The jury – the most sacred due process protection available to a defendant — was  patently biased in favor of the company. Seven of the 11 people seated had ties to the  fossil fuel industry. Some had admitted they could not be fair, but the judge seated them anyway. There was no Native American or person of color on the jury even though issues of  Indigenous rights were central to the trial. 
• Morton County, where the trial was held and where many of the protests took place,  voted 75% for Donald Trump in the last election and has extensive ties to the fossil fuel  industry. In a pre-trial survey, 97% of residents in the county said they could not be fair to  Greenpeace. Yet the judge refused repeated requests by Greenpeace to move the case. 
• Energy Transfer ran a major television and online advertising campaign in the county  lauding itself in the weeks leading up to the trial. The company also sent a fake newspaper (called the Central North Dakota News) with pro-industry propaganda to households in the  county. The court refused to allow Greenpeace to take discovery to determine how this  unethical campaign to taint the jury pool happened.
• Adding to the absurdity, Greenpeace was blamed for the entire protest movement even though it played only a minimal role. The protests were led by the Standing Rock Sioux tribe  on whose ancestral land the Dakota Access Pipeline was being built. In fact, only six of the  100,000 people who came to the protests were from Greenpeace – yet Energy Transfer was  able to convince the jury to hold the organization responsible for every dollar of supposed  damages that occurred over seven months of protests. 
• Secrecy pervaded the proceedings. The court repeatedly refused to open a live stream to  the public or to create and release transcripts. A request by media organizations (including  The Wall Street Journal and The New York Times) to access the live stream was denied.  Thousands of key documents were sealed and thus hidden from public scrutiny. 
• The judge, James Gion, made evidentiary decisions that systematically gutted  Greenpeace’s ability to mount a defense. For example, a major expert report showed that  the pipeline had leaked roughly 1 million gallons of drilling fluids into drinking water sources used by millions of people. Greenpeace lawyers needed the document to debunk  the argument that the pipeline was safe, but the judge refused to let them use it. 
• The 35-page verdict form was confusing and the results seemed to prove the jury was in fact confused. It appears the exorbitant damages number was calculated by pulling  numbers out of thin air – including millions for public relations expenses, private security costs which were being paid anyway, and refinancing costs due to various banks  withdrawing from the project once they learned about the protests. (Lobbying banks is also  constitutionally-protected advocacy.)

The inability of Judge Gion to ensure that Greenpeace’s fair trial rights were  respected was evident. It was almost excruciating to watch. It felt more like a  choreographed show than an adversarial proceeding. Greenpeace was consistently – and  in our opinion, falsely – portrayed by Energy Transfer lawyer Trey Cox as a criminal enterprise that exploited Indigenous peoples for their own gain. He used words like “mafia”  and “coded language” to describe the group’s operations. (Cox works for the same law firm Chevron used to orchestrate my 993-day arbitrary detention from 2019 to 2022 after I helped Amazon communities win the landmark $10 billion Ecuador pollution case.) 

The verdict represents more than a financial blow against Greenpeace. It has huge and troubling implications for free speech across the nation. The result threatens the  rights of religious groups and political organizations. It implicates the rights of churches  and charities. If the theory of the case stands, pretty much anyone in the United States can face financial ruin for exercising their constitutional right to speak on an issue of public importance – even adherents of conservative causes. It’s really a corporate playbook that started with Chevron’s legal attacks on me and the Amazon communities in 2009, and continues with the assault on Greenpeace. It’s being carried out by a law firm (Gibson Dunn &  Crutcher) that markets the playbook to its corporate clients. 

The case against Greenpeace also highlights the Trump administration’s broader attack on progressive activism. From proposed legislation that would allow the Treasury Department to unilaterally revoke the nonprofit status of organizations deemed “terrorism-supporting” to  the FBI’s reported plans to criminally prosecute climate groups, the goal is clear: suppress dissent. Greenpeace is in the crosshairs because its brand is global and its success in fighting polluters over the last several decades is outstanding. 

This is why it is critical for Greenpeace and its allies to lean into the verdict and issue a call to action to the entire environmental movement and broader civil society organizations. Greenpeace is without question the world’s largest environmental activist group with chapters in 25 countries. It gave birth to the non-Indigenous part of the modern  environmental movement in the early 1970s and captured the imagination of the world by engaging in spectacular and creative actions to save whales in the North Pacific and to stop nuclear testing.

Greenpeace needs to be protected in this critical moment. What ultimately happens here will have a huge impact on the First Amendment.

There is more than a glimmer of hope. A hearing is scheduled for July in Amsterdam on the  Greenpeace lawsuit against Energy Transfer. If Greenpeace prevails on appeal in North Dakota and wins in Europe, it might be Energy Transfer paying substantial sums to Greenpeace rather than the other way around. The judgement in North Dakota is not nearly as dismal as many in the media are making it appear.  

There are realistic scenarios where Greenpeace emerges from this experience stronger than ever. The key is to keep grinding and calling out the legal abuse loudly and publicly. The world will respond.

Please read and share this article, which was co-published by Common Dreams.

-Steven

Donziger On Justice is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber.