Energy Transfer vs. Greenpeace trial analysis

We have now seen the entirety of Energy Transfer’s case and the jury has reached its verdict, awarding the company and its affiliate, Dakota Access (together “ET”) over $666 million in compensatory and punitive damages. We can now more fully point out the errors that brought us to this moment, and that will be argued before the entry of the judgment in post-trial motions, and in any appeal. Here is what you need to know about the three Greenpeace defendants¹ and Standing Rock.

Energy Transfer alleges that the Greenpeace defendants selfishly “exploited” the 2016-17 protests against the Dakota Access Pipeline (DAPL). In this telling, the Greenpeace defendants were solely responsible for the rapid growth of the protests and everything that took place there. ET alleges the Greenpeace defendants conspired, acted in secret, and provided money, people and resources that led to violence, property destruction, and delayed DAPL’s construction. ET also alleges that the Greenpeace defendants organized a misinformation campaign that spread malicious falsehoods that damaged ET’s business relationships.

Evidence presented at trial supported that the Standing Rock protests were convened, organized and led by Indigenous people from the area. The Standing Rock Sioux Tribe (SRST) had firmly opposed DAPL since 2014, when the pipeline was rerouted to pass just north of the Standing Rock Reservation. The rallying cry of the protests was “mni wiconi” or “water is life”, reflecting SRST concerns about risks to water resources downstream. Standing Rock Sioux Tribal Chairwoman Janet Alkire released a statement on the trial verdict saying that Energy Transfer’s narrative “that Greenpeace manipulated Standing Rock into protesting DAPL is patronizing and disrespectful to our people.”²

The Greenpeace defendants contended at trial and will contend on appeal that Energy Transfer’s claims against them are totally unfounded, as we describe in more detail below. The jury found otherwise. Notably, one of the arguments that the Greenpeace defendants have repeatedly raised, continue to argue in post-trial motions and will contend on appeal, is that the district court erred in denying the defendants’ motion for change of venue. These points (and others, such as our arguments that we are entitled to relief as a matter of law) are not summarised here, but can be found in our pleadings.³

---

Table of Contents:

1. Greenpeace commitment to non-violence and no property destruction
2. Greenpeace Inc. supported the protests at Standing Rock only because they were asked by local and Indigenous leaders
3. Energy Transfer’s claims and the jury verdict
4. The Greenpeace defendants presented evidence at trial of what they did – and did not do – at Standing Rock
5. The jury found that Greenpeace played a significant role in the protests, but the timeline of events suggests otherwise
6. As Greenpeace defendants have argued and will show on appeal, the nine statements alleged to be defamatory cannot be a basis for recovery of damages consistent with the First Amendment
7. Construction delays were due to the U.S. Army Corps of Engineers withholding the easement
8. Banks made their own decisions about DAPL financing
9. There is no evidence that any alleged damages related to increased security or other costs were proximately caused by the Greenpeace defendants
10. Energy Transfer should take responsibility for its own actions
11. Timeline of Key Events

---

1. Greenpeace commitment to non-violence and no property destruction

Everything the Greenpeace defendants did in support of Standing Rock was consistent with the network’s values and more than 50-year commitment to non-violence, no property destruction, and bearing witness to injustice. We argue in our post-trial motions, as we did at trial, that Energy Transfer presented zero evidence at trial that any Greenpeace staff, funding, equipment, information or other support were involved in any incidents involving violence or property destruction.

One of the three Greenpeace defendants, Greenpeace Inc., supported five Indigenous trainers from the Indigenous Peoples Power Project (IP3) to travel to Standing Rock. Energy Transfer calls them “paid protesters” but they were not paid to protest, but rather to conduct trainings in de-escalation and non-violent direct action (NVDA). Furthermore, Lakota activist and IP3 co-founder Nick Tilsen emphasized that “We’re not protesters, we’re protectors” and that the invitation “came from the Lakota people that were from there.” Tilsen testified that in August 2016 members of the Standing Rock Tribal Council requested that he give a presentation on the idea of NVDA training. Together members of the Tribal Council and IP3 developed Principles for NVDA at Standing Rock.⁴

The Principles were posted on a sign at the entrance to camp, and they guided all of Greenpeace Inc. and IP3 activities at Standing Rock. Core principles include “We are peaceful and prayerful” and “Property damage does not get us closer to our goal.”⁵

A total of six Greenpeace Inc. employees traveled to Standing Rock.⁶ Greenpeace Inc.’s role in supporting the protests was small, but the organization remains proud of standing with the Standing Rock Sioux Tribe (SRST), other Tribal Nations, and the Water Protectors in that moment.

No witness testimony or document presented at trial showed that Greenpeace Inc. engaged in or encouraged violence or property destruction – even Energy Transfer’s witnesses could not point to any such evidence.⁷ Despite this lack of evidence, Energy Transfer’s lawyers persuaded the jury that Greenpeace Inc. had organized, encouraged or participated in violence or property destruction at Standing Rock. The jury was shown evidence of vandalism, destroyed equipment, rocks and other objects thrown at law enforcement, law enforcement being shot at, people receiving death threats – with the implication that Greenpeace was behind it all. But no evidence connected those incidents to the Greenpeace defendants, because Greenpeace did not, and would not, participate in nor encourage any such violent activities.

2. Greenpeace Inc. supported the protests at Standing Rock only because they were asked by local and Indigenous leaders

Greenpeace Inc. played a small, supporting role in a large, Indigenous-led protest. The protest encampments held 10,000 people at their peak in the fall of 2016, and it is estimated that a total of 100,000 people came to stand with Standing Rock over time. Only six of those people were Greenpeace Inc. employees. Over 300 Tribal Nations answered SRST’s call to action, making it reportedly the largest gathering of Tribal Nations in 100 years. Others who came to Standing Rock included faith leaders, veterans groups, celebrities, journalists, an Expert Member of a United Nations advisory body, and Indigenous supporters from around the world. 

Greenpeace Inc. (and the five IP3 trainers financially supported by Greenpeace Inc.) only supported the on the ground activity at Standing Rock when asked by the Indigenous leadership. As Nick Tilsen testified, “Greenpeace did not show up at Standing Rock on their own accord. They only came, in fact, after they were invited to come and after, quite frankly, we’d already established our own nonviolent direct action training principles that were aligned with our values. […] They [Greenpeace Inc.] came to the party later.”⁸

Former Greenpeace Inc. Executive Director Annie Leonard confirmed this account in her testimony, and stated that it was over concerns that the situation was becoming dangerous that Greenpeace Inc. was asked to help out. Describing a conversation with the Indigenous Environmental Network (IEN) Executive Director Tom Goldtooth: “[Tom] wanted it to be peaceful, and he was concerned that there was some tension escalating. And so […] he asked if we could help send some [trainers] or somebody [who] could help in de-escalation [techniques].^”9

Another former Greenpeace Inc. employee testified that when he arrived at camp there was “a lot of tension […] There were a lot of people who were angry in the situation, their voices weren’t being heard, and the pipeline [was] being built without tribal consent.”¹⁰ Greenpeace Inc. was attempting to support non-violent solutions to an escalating conflict, but instead Greenpeace has been blamed for the whole affair.

Tilsen testified that because Greenpeace Inc. staff and the paid IP3 trainers were not Lakota people from the area, they did not play a leadership role in formulating strategy or in deploying non-violent direct actions (NVDAs).¹¹ This approach was consistent with Greenpeace Inc.’s official Indigenous Peoples Policy which requires the organization to “seek input and guidance” from Indigenous leaders before planning any activities that could impact them.¹²

All Greenpeace Inc. employees left the protest by early December 2016, and one staff member returned afterwards in mid-December to help clean up the camp.¹³

3. Energy Transfer’s claims and the jury verdict

Over the course of almost eight years and two lawsuits, Energy Transfer has leveled a lot of accusations against Greenpeace.¹⁴ However, this is what ET’s lawyers said in their closing arguments:

“Greenpeace took a small, disorganized, local issue and exploited it to shut down the Dakota Access Pipeline and to promote its own selfish agenda. It provided money, people and resources into Morton County and caused great harm. They thought they’d never get caught. They thought that no one would ever know that they did it. Well, as I told you in opening, this is the day of reckoning.”¹⁵

The following is what ET’s lawyers claimed to have proven at trial:

1. “Greenpeace acted as one enterprise to stop DAPL at all costs.
2. Greenpeace’s deceptions: Codewords, anonymity, and amnesia.
3. Greenpeace powered camp, funded professional trainers and organized thousands of protestors, causing delay and expense.
4. Greenpeace delayed DAPL construction and disrupted shipper relationships.
5. Greenpeace spread malicious, deceptive stories about Energy Transfer.
6. Greenpeace sabotaged Energy Transfer’s banking relationships.
7. Greenpeace acted with malice throughout.”¹⁶

Based on this, ET alleged the following claims and the associated damages, as calculated by their own damage experts:

Legal Claims:	Energy Transfer’s Claimed Damages:
– Trespass – Trespass to chattel – Conversion – Nuisance – Aiding & abetting to the above – Civil conspiracy	– Increased security costs: $60.2 million – Increased contractor costs: $14.6 million – Purchase of the Cannonball Ranch: $8.4 million
– Tortious interference with shipping relationships	– Lost profits due to delay in pipeline starting operations $80.1 million18
– Defamation – Defamation per se17 – Tortious interference with banking relationships	– Costs from refinancing the construction loan $96.4 million – Increased PR costs $7 million

These damages total $266.7 million and represent the entirety of Energy Transfer’s claimed economic damages related to the Standing Rock protests. ET’s damages experts testified that they were instructed to assume that Greenpeace was responsible for 100% of the protest-related damages – no matter where or when they occurred.¹⁹

The jury agreed with Energy Transfer and awarded over $264 million in compensatory damages, and then added on $402 million in punitive damages, bringing the total to over $666 million. Only Greenpeace Inc. was found liable for trespass, trespass to chattel, conversion, nuisance, and aiding and abetting. All three Greenpeace defendants were found liable for defamation, defamation per se, and tortious interference. Greenpeace Inc. and Greenpeace International were found liable for civil conspiracy. The full jury form can be viewed here.²⁰

We discuss each of these claims and damages categories in more detail below.

4. The Greenpeace defendants presented evidence at trial of what they did – and did not do – at Standing Rock

Greenpeace Inc. presented evidence at trial that its activities at Standing Rock consisted of the following:

• Conducted a supply drive and donated camping and other equipment.
• Sent lockboxes to Standing Rock. Lockboxes are devices that allow people to lock hands together to form a “technical blockade” or a “human blockade” as part of a peaceful resistance. A “human blockade” is a form of peaceful protest where people stand together in a line or a group to draw attention to a cause.  The use of lockboxes is inherently non-violent as it places the activist in a position of vulnerability, where they cannot use their hands even in self-defense. The lockboxes that Greenpeace Inc. sent were made from a straight length of plastic tube with a metal rod in the center that people can attach themselves to. 
• Provided use of the solar powered truck, the “Rolling Sunlight”, with the Greenpeace logo on it, that sat near the entrance to camp and let people charge their phones.
• Provided funding of $15,000 for 5 Indigenous NVDA trainers from IP3 to travel to Standing Rock for 2 weeks (Sept. 1-14, 2016).
• Six Greenpeace Inc. employees traveled to Standing Rock for parts of 4 months. They brought the Rolling Sunlight and camp supplies, helped winterize camp (including by building yurts), and staffed the art tent.
• Two Greenpeace Inc. employees provided a few “technical blockade trainings” to a small group of people. These trainings covered principles of safety and de-escalation. 
• One Greenpeace Inc. employee monitored the progress of pipeline construction and investigated a nearby equipment yard, and shared this information with other Greenpeace Inc. employees and allies.
• One Greenpeace Inc. employee was arrested (but not convicted) for obstructing a public roadway along with a large group of people as part of an NVDA. This incident did not involve trespassing on ET’s property.
• Posted 6 stories on the Greenpeace Inc. website and signed two letters drafted by the reputable Dutch NGO BankTrack (along with 28 and over 500 other entities, respectively). Greenpeace Inc. did not author the BankTrack letters.
• Greenpeace Inc. also provided a small grant of $2,000 to the Sacred Stone Camp and a solar battery in May 2016.

Greenpeace, Inc. contends that the evidence at trial shows that it did not do the following:

• Greenpeace Inc. did not participate in, support, encourage, organize, or fund any incidents of violence or property destruction.
• No Greenpeace Inc. staff members engaged in trespass, trespass to chattel, conversion, or nuisance while at Standing Rock, and during the trial no evidence was presented to the contrary. 
• While Greenpeace Inc. did fund NVDA trainers, those trainings were designed and conducted by IP3 and not Greenpeace Inc. They were based upon the Principles of Direct Action that were co-developed by IP3 and members of the Standing Rock Tribal Council. One of those IP3 trainers was also a Greenpeace Inc. employee, although he participated in his role as an IP3 member.
• While Greenpeace Inc. staff did conduct a limited number of technical blockade trainings, no evidence was presented at trial that any participants in those trainings engaged in trespass, trespass to chattel, conversion, or nuisance, or were encouraged to do so by Greenpeace Inc. staff. 
• While Greenpeace Inc. did send lockboxes to Standing Rock, no evidence was shown that any of those lockboxes were ever used to obstruct Energy Transfer operations. Indeed, multiple law enforcement officers testified that the lockboxes they encountered were typically very different from those sent by Greenpeace Inc, both in design (V-shaped rather than straight) and use (to connect people to equipment rather than people to people).
• In their complaint, ET alleged that Red Warrior Society was a protest faction that used violent and destructive tactics, and also that they were a “front group” that was established, funded and directed by the Greenpeace defendants. The Greenpeace entities contend that no meaningful connection was established at trial between any member of the Greenpeace network and the Red Warrior Society.

Greenpeace International (GPI) did not participate in any on-the-ground protest activities. No GPI staff member traveled to North Dakota and no GPI resources were used there. GPI’s only connection to this case were two allegedly defamatory statements made in one sign-on letter that was drafted by BankTrack and signed by over 500 other groups from over 50 countries.

ET attempted to tie GPI to the protests at Standing Rock by showing an email from a Greenpeace Inc. employee updating members of the global Greenpeace network about the protests at Standing Rock months after they began. The email asked for help with amplifying the Indigenous-led efforts and it was forwarded by two GPI staff members to internal listservs, asking for help with amplification and “to show solidarity.”²¹ It appears these emails are the basis on which the jury found that GPI had formed a conspiracy with Greenpeace Inc.

Greenpeace Fund also did not participate in any on-the-ground protest activities. Fund does not conduct any programmatic or campaign work. Greenpeace Fund’s only purposes as an organization is to fundraise and to make grants for specific campaigns, which go through a rigorous grant approval process. Greenpeace Inc.’s 2016 and 2017 work in support of Standing Rock was not a formal campaign and was therefore not funded by Greenpeace Fund. Additionally, all campaign work funded by Greenpeace Fund is 501(c)(3) permissible, and Greenpeace Fund does not fund protest-related activity.

Annie Leonard testified that, in her personal capacity, she also made introductions between foundations and Indigenous-led groups active at Standing Rock, who were then able to obtain $90,000 in grants.²²

5. The jury found that Greenpeace played a significant role in the protests, but the timeline of events suggests otherwise

ET’s entire case was structured to hold the Greenpeace defendants legally responsible for every person coming to Standing Rock, every single event that happened there, and even actions taken by banks and the U.S. government. This is why ET sought to assign 100% of their total protest-related damages to the Greenpeace defendants, and the Greenpeace defendants alone. Their case allows for zero agency by the Standing Rock Sioux Tribe, other Tribal Nations, other Water Protectors, other groups or protesters, Energy Transfer’s own actions or miscalculations – or even the actual deciding authorities, such as the U.S. Army Corps of Engineers or the financial institutions. Nick Tilsen testified that there were “six to seven” other groups at Standing Rock that conducted trainings in addition to IP3.²³

Their theory has a fatal timeline problem. Key events and actions happened well before the first Greenpeace Inc. staff arrived on the ground (9/5/2016), before GPI was even aware of this happening (late-October 2016), and several months before the first alleged defamatory statement was made (11/7/2016). Energy Transfer’s own corporate and law enforcement witnesses testified to multiple other events and causes that contributed to the growth of the protests and widespread media attention.²⁴

SRST opposition to the pipeline is the one constant running through the entire history of Standing Rock, but during the trial ET sought to erase and minimize their leadership. SRST opposition to DAPL began in 2014 when the pipeline was rerouted, and the Tribe consistently raised their objections with both the plaintiffs and the Army Corps. Internal emails showed that ET leadership viewed the SRST as their “greatest advisory [adversary]”²⁵ and Army Corps staffers felt that “racist comments” from ET leadership were endangering the project.²⁶ When their objections were ignored, the SRST filed a lawsuit against the Army Corps in federal court to halt the pipeline in July 2016. 

Protests led by SRST members grew rapidly during August 2016, and ET responded by filing a lawsuit against Tribal Chairman Dave Archambault on 8/15/2016. The next day Archambault issued a Call to Action asking for the support of other Tribal Nations. On 9/2/2016, former Tribal Historic Preservation Officer Tim Mentz filed a sworn declaration with the court in SRST’s suit against the Army Corps documenting cultural sites and burial grounds adjacent to or within the pipeline corridor. The next day ET sent bulldozers into the area, leading to a confrontation with Water Protectors that led to international media attention and a rapid growth in the size of the camps. All of this took place before any Greenpeace employees came to Standing Rock. See Timeline of Key Events below for more detail.

The only supporting evidence for ET’s theory comes from internal Greenpeace Inc. emails where staff used expansive language like “We stopped that pipeline.”²⁷ But as one witness noted, “when the Cubs won the World Series” any fan would say “we won” even if they weren’t a “root cause” of the victory.²⁸ ET also tries to use Greenpeace Inc. and GPI statements about “unbranded” work to imply that the Greenpeace defendants were the secret engine behind all of the protests,²⁹ when really those statements were general guidance about being respectful of working with mass movements and coalitions, and not taking credit that wasn’t ours. ET’s reliance on these internal statements lays bare their lack of direct evidence of Greenpeace actions.

6. As Greenpeace defendants have argued and will show on appeal, the nine statements alleged to be defamatory cannot be a basis for recovery of damages consistent with the First Amendment

The core of ET’s case involves nine statements on three topics that the jury found to be defamatory. These 9 statements make up the alleged “misinformation campaign” that ET claims caused the protesters to come to Standing Rock and forced it to delay the refinancing of its construction loan years after the resistance at Standing Rock had ended.

The court ruled that because Energy Transfer is a public figure, it must meet the constitutional standard of proving “actual malice.”³⁰ This means it is not enough to show that the alleged statements are false, ET must also show (with clear and convincing evidence) that the Greenpeace entities knew the statements were false, or had serious doubts as to the truth.

The Greenpeace defendants maintain that their statements are either true or protected opinion, and in any event, were not made with any knowledge of falsehood or reckless disregard for the truth. The disagreements with Energy Transfer’s position involve either mischaracterizing what Greenpeace actually said, or else differing opinions. Greenpeace defendants’ employees consistently testified that they relied on credible sources of information – such as the Standing Rock Sioux Tribe and the UN Expert Report – and that they stood by the statements and did not harbor any doubts about their truth when they wrote them. As will be contended in post-trial motions and any appeal, Energy Transfer has not met the constitutional actual malice standard. Seeking massive damages for First Amendment-protected speech has a dire chilling effect.

Furthermore, expert witness Christopher Weil testified that the substance of the statements in question had been widely reported and discussed in the news media and online for months before and after Greenpeace Inc. and GPI made their statements.³¹

7. Construction delays were due to the U.S. Army Corps of Engineers withholding the easement

Energy Transfer was awarded $80.1 million in lost profits related to the five-month delay in DAPL entering commercial operations.³² ET employees testified that they expected to start operations by 1/1/2017, but operations actually began 6/1/2017.³³

However, DAPL could not have entered into commercial operations on their expected date because an easement granting permission to drill under Lake Oahe was also delayed. Energy Transfer witnesses testified that they expected the easement from the Army Corps in mid-August 2016, but the easement was not granted until February 2017 – a delay of nearly six months.³⁴

Since at least February 2015, the SRST had been requesting that the Army Corps pause approvals and conduct a full Environmental Impact Statement (EIS) of the project (rather than the more limited Environmental Assessment that it conducted). On July 25, 2016, the Army Corps granted a permit for the Lake Oahe crossing but did not grant the easement; the SRST sued two days later (7/27/2016). The Obama Administration then released statements on 9/9/2016³⁵ and 11/14/2016³⁶ confirming that the easement would not be granted until further review. On 12/4/2016 the Army Corps concluded that the easement would not be granted until an EIS was completed.³⁷

The above statements all referenced the SRST’s concerns (and lawsuit) – and not Greenpeace – as the reason for the delay. Energy Transfer apparently agreed, and released a statement on 11/15/2016 blaming the Obama administration for political interference in not granting the easement.³⁸ On 12/16/2016, ET sent a memo to the Trump transition team requesting action on approving DAPL. The memo even contained a draft of an Executive Order that President Trump could use to order the Army Corps to approve the easement.³⁹ Neither of these two statements mentioned Greenpeace.

The SRST lawsuit and the lack of the final easement were clear risks to the project that were recognized at the time. Greenpeace’s expert witness Neil Miltonberger testified that the easement was on the pipeline’s “critical path” and since the easement was delayed for over five months “that had a five-month impact on the service day.” Miltonberger also noted that despite all the protest activity, construction on the approach to Lake Oahe (spread 7) was completed in “early November.” He concluded that “the protests were not the cause of the delay in full service.”⁴⁰

The evidence is clear that the Army Corps is the ultimate deciding authority on whether to grant the easement, and that the delay in DAPL entering commercial operations was due to the Army Corps’ caution in the face of the ongoing SRST lawsuit.

Energy Transfer attempts to spin even this governmental delay as Greenpeace’s fault. However, the First Amendment guarantees the right to “petition the government for redress of grievances.” Advocacy on this topic is a core free speech issue. Appeals made to the Obama Administration to withhold the pipeline easement constituted protected speech, just as ET’s own lobbying of the Trump Administration to approve the easement did.

8. Banks made their own decisions about DAPL financing

The Plaintiffs were awarded damages of $96.4 million related to the alleged delay in refinancing their project loan.⁴¹ These damages are dependent on the finding of a tort. If the Greenpeace defendants did not commit a tort, they can’t have committed tortious interference with ET’s banking relationships. Some of the allegedly defamatory statements were included in two letters that were sent to ET’s lenders in November 2016. Those two letters were drafted by an organization called BankTrack. Greenpeace Inc. signed both letters and Greenpeace International signed the second one – along with over 500 other organizations.

The court allowed into the trial additional evidence of constitutionally protected speech directed at ET’s lenders in late 2016 and early 2017, and asking them to pause their participation in the construction loan. Although ET did not allege all of these communications were defamatory, it used them to frame itself as the victim of an illegitimate campaign. As argued by the Greenpeace defendants, writing letters to banks and holding peaceful rallies in public spaces outside bank offices or branches are protected free speech activities. Four banks assigned their participation in the DAPL construction loan to other banks. However, these four banks leaving the construction loan is not what ET is seeking damages for.

ET states that it had planned to refinance the construction loan with bonds sometime between August 2017 and February 2018, and it ultimately did so by March 2019. The refinanced loan had 9 participating banks instead of the original 17. This 12-18 month delay (and smaller group of participating banks) allegedly cost it money in the form of duration fees, project loan interest and higher interest rates on the bonds.⁴² Once again, there were no witnesses from banks at trial testifying that the alleged defamatory statements, or indeed any Greenpeace actions, were responsible for these higher costs.

On the contrary, ET’s own Board Meeting Minutes (on 2/6/2018, 3/28/2018, 6/27/2018, and 1/30/2019, plus an email dated 5/7/2018)⁴³ clearly state that the reason for delay in seeking refinancing was risk due to the ongoing SRST lawsuit and the Court decision to remand the EA to the Army Corps (on 6/14/2017) for further study. Greenpeace expert witness John Reed testified that the delay in refinancing was due to “feedback from investors” that they were not comfortable with the terms being offered in February 2018, and that specifically they were looking for more “repayment protection.”⁴⁴

The January 2019 Board Minutes show ET agreeing to add an “equity contribution agreement” (ECA) to the refinancing package as a means of closing the deal. The ECA would require ET to provide more of its own funding to the deal and would have been “triggered if there’s a material adverse decision for the pipeline at the District Court.”⁴⁵ The caution around the SRST lawsuit and regulatory risk was well founded as Judge Boasberg did in fact order the Army Corps to conduct a full EIS on 3/25/2020, and on 7/6/2020 even ordered the pipeline shut down in the interim. The shutdown was not upheld on appeal, although the demand for a full EIS was upheld, and is still in process at the Army Corps.

However, the ECA had its desired effect, and with the added assurances, ET was able to complete the refinancing in March 2019.⁴⁶

No representative from any bank testified at the trial, and no evidence was presented that any of the allegedly defamatory statements in this case were ever considered in any banking decision. In fact, the evidence suggests that the banks themselves were independently concerned with the risks associated with DAPL, and in early 2017 the lenders contracted the firm Foley Hoag to conduct an independent assessment of whether DAPL’s construction complied with international lending standards.⁴⁷

9. There is no evidence that any alleged damages related to increased security or other costs were proximately caused by the Greenpeace defendants

Energy Transfer was awarded damages for increased payments to their contractors ($14.6 million),⁴⁸ increased spending on security ($60.2 million), increased spending on public relations ($7 million), and $8.4 million to purchase the Cannonball Ranch on 9/20/2016. All of these damages flow from the alleged “ground torts”, except the additional PR costs, which are allegedly a result of the defamatory statements.⁴⁹

Once again, as will be argued in post-trial challenges to the verdict and any appeal, the evidence presented at trial failed to link the Greenpeace defendants to any of these damages.

The damages analysis did not calculate damages associated with any specific incident, location or date. The damages experts testified that they simply tallied up all of ET’s unbudgeted expenses and they were told to assume that the Greenpeace defendants were responsible for everything.⁵⁰ For example, damage totals include vandalism to pipeline pump valves in three states⁵¹ – specific incidents for which no evidence was presented at trial, and in which there was zero evidence of Greenpeace involvement.

Included in these damages are significant costs incurred in other states besides North Dakota – namely South Dakota, Iowa, Illinois, and even Texas. No Greenpeace staff visited those states, and any alleged protest activity there would have been done by others. Also included in the damages are costs incurred well before Greenpeace Inc. staff arrived at Standing Rock, and well after they left. Some of the individual damages claimed seem very tenuously related to the protests, such as catering charges for a dinner at the Iowa Speedway.⁵²

Even on the questionable theory that the Greenpeace defendants’ alleged defamatory statements were the sole cause of the protests, the public relations damages include costs incurred months before the first allegedly defamatory statement was made. ET’s public relations head, Vicki Granado, testified that she recalled responding to Greenpeace statements, but when asked who made those statements, she could only name Jan Hasselman, an Earthjustice attorney who represented SRST, but who never worked for any Greenpeace organization.⁵³

10. Energy Transfer should take responsibility for its own actions

Internal emails shown at trial show that before the first camp formed, ET had already adopted an adversarial stance toward the SRST and did not see the Tribe’s sincere opposition to the pipeline as legitimate.⁵⁴ Army Corps staff felt that ET’s attitude was inappropriate and was worsening relations between the Corps and the Tribe.⁵⁵ The lawsuit filed in July 2016 and the escalating protests in August 2016 should have been warning signs for the company. ET responded not by reconsidering the pipeline route, but instead with a lawsuit against Tribal Chairman Dave Archambault.⁵⁶ The very next day Chairman Archambault issued a Call to Action, asking for support from “all Native American Tribes” in the U.S. and “all Indigenous Peoples of the world.”⁵⁷

Relying on their own experts’ assessments and that of the North Dakota Historical Society, ET’s response⁵⁸ to Mentz’s sworn declaration on September 2, 2016 shows that instead of pausing to take his concerns seriously, they charged ahead. Evidence shows that ET rapidly advanced their construction schedule⁵⁹ after the declaration was filed. The result was, in the words of ET’s own corporate representative, a “disaster”⁶⁰ and the singular incident that turned Standing Rock into a global protest story.

But it is testimony of ET’s co-founder, largest shareholder and then-CEO Kelcy Warren that best displays ET’s philosophy with regards to the SRST. Warren testified via pre-recorded deposition, which was played in court, that he “absolutely” saw the SRST’s allegations of destruction of burial sites as “a con job” and he could only imagine that they had “made a deal with the devil” (by which he meant, apparently, Earthjustice, SRST’s counsel in the suit against the Army Corps).⁶¹ Faced with the depth and sincerity of the SRST’s opposition, Warren’s response was mostly transactional. He set up a meeting with Dave Archambault to offer money or land – including an offer to donate the Cannonball Ranch – in exchange for SRST ending the protests.⁶²

Timeline of Key Events

---

Citations:

¹ Greenpeace Inc. is the Greenpeace campaigning entity operating in the United States. Greenpeace Inc. conducts all programmatic work in the United States and is often referred to as Greenpeace USA. Greenpeace Fund is a U.S. 501(c)(3) that provides grants to support specific campaigns. Greenpeace International is a Netherlands-based nonprofit foundation that helps coordinate the global network of independent national and regional Greenpeace organizations. Greenpeace International’s formal name is Stichting Greenpeace Council.

² Zraick, K. 2025. A Quarter-Billion Dollars for Defamation: Inside Greenpeace’s Huge Loss. New York Times, March 31. [link]

³ Greenpeace International. Legal Documents: Energy Transfer’s SLAPP Lawsuits. [link]

⁴ Nick Tilsen. Video deposition played in court March 3, 2025.

⁵ Photograph of sign displaying Direct Action Principles. Exhibit 467.

⁶ Two of these six Greenpeace Inc. employees were also independently affiliated with IP3.

⁷ Michael Futch. Testimony in court February 27, 2025; Sheriff Kyle Kirchmeier. Testimony in court February 28, 2025.

⁸ Nick Tilsen. Video deposition played in court March 3, 2025.

⁹ Annie Leonard. Testimony in court March 12, 2025.  References to testimony are based on unofficial rough transcripts of the trial compiled by a private court reporter hired by Energy Transfer and the Greenpeace parties.  An official trial record is being prepared.

¹⁰ Cy Wagoner. Testimony in court March 11, 2025.

¹¹ Nick Tilsen. Video deposition played in court March 3, 2025.

¹² Greenpeace USA Indigenous Peoples Policy. [link]

¹³ Everett Jack. Opening Argument, February 26, 2025; David Khoury. Video deposition played in court February 28, 2025.

¹⁴ For more backstory on the lawsuits see: 6 Reasons Why Energy Transfer’s Lawsuit Against Greenpeace Is Outrageous [link] and The Story of Energy Transfer’s $300 Million Lawsuit, and Why It Matters [link].

¹⁵ Trey Cox. Closing argument, March 17, 2025.

¹⁶ Gibson Dunn. 2025. Litigators of the Week: The Developer of the Dakota Access Pipeline Hits Greenpeace With a $667M Trial Verdict. March 21. [link]

¹⁷ Energy Transfer did not plead defamation per se; it was included on the verdict form and they were awarded damages.

¹⁸ ET also listed the lost profits damages under the claims about trespass, etc. The court instructed that damages could not be double counted, but the jury may have linked these damages to tortious interference.  See Defendants’ Motion.

¹⁹ Chris Sullivan. Testimony in court March 4, 2025; Robert Trout. Testimony in court March 5, 2025; David Leathers. Testimony in court March 7, 2025.

²⁰ Energy Transfer vs. Greenpeace Verdict. [link]

²¹ Daniel Mittler. Email sent October 29, 2016. Exhibit 1721.

²² Annie Leonard. Testimony in court March 12, 2025.

²³ Nick Tilsen. Video deposition played in court March 3, 2025.

²⁴ Kyle Kirchmeier. Testimony in court February 28, 2025.

²⁵ Joey Mahmoud. Email sent March 7, 2016. Exhibit 327A.

²⁶ Julie Price. Email dated May 20, 2016. Exhibit 821.

²⁷ Harmony Lambert. Email dated January 24, 2018. Exhibit 1775.

²⁸ Neil Miltonberger. Testimony in court March 11, 2025.

²⁹ Greenpeace International. The Mass NVDA Mobilisation Guidebook. Draft Version .03, only for internal review use, dated February 2, 2016. Exhibit 1319.

³⁰ Constitutional Law Reporter. First Amendment: Freedom of Speech & Freedom of the Press, Defamation. [link]

³¹ Christopher Weil. Testimony in court March 13, 2025.

³² David Leathers. Testimony in court March 7, 2025.

³³ Michael Futch. Testimony in court February 26 and 27, 2025; Joey Mahmoud. Testimony in court February 27, 2025.

³⁴ Michael Futch. Testimony in court February 27, 2025.

³⁵ Joint Statement from the Department of Justice, the Department of the Army and the Department of the Interior Regarding Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers. September 9, 2016. [link]

³⁶ U.S. Army Corps of Engineers. 2016. Statement Regarding the Dakota Access Pipeline. November 14. [link]

³⁷ Darcy, J.-E. 2016. Memorandum for Commander, U.S. Army Corps of Engineers. Subject: Proposed Dakota Access Pipeline Crossing at Lake Oahe, North Dakota. [link]

³⁸ Energy Transfer Partners and Sunoco Logistics Partners Seek Federal Court Intervention to Stop Political Interference in Order to Complete the Dakota Access Pipeline. November 15, 2016. [link]

³⁹ Kelcy Warren. Video deposition played in court March 13, 2025.

⁴⁰ Neil Miltonberger. Testimony in court March 11, 2025.

⁴¹ David Leathers. Testimony in court March 7, 2025.

⁴² David Leathers. Testimony in court March 7, 2025.

⁴³ Energy Transfer Board Meeting Minutes. February 6, 2018. Exhibit 973; Energy Transfer Board Meeting Minutes. March 28, 2018. Exhibit 975; Energy Transfer Board Meeting Minutes. June 27, 2018. Exhibit 976; Energy Transfer Board Meeting Minutes. January 30, 2019. Exhibit 978; Ashton Hayse. Email sent May 7, 2018. Exhibit 974.

⁴⁴ John Reed. Testimony in court March 13, 2025.

⁴⁵ John Reed. Testimony in court March 13, 2025.

⁴⁶ John Reed. Testimony in court March 13, 2025.

⁴⁷ Foley Hoag. 2017. Public Summary of Foley Hoag LLP Report, Good Practice for Managing the Social Impacts of Oil Pipelines in the United States. May 9. [link]

⁴⁸ Chris Sullivan. Testimony in court March 4, 2025.

⁴⁹ Robert Trout. Testimony in court March 5, 2025.

⁵⁰ Chris Sullivan. Testimony in court March 4, 2025; Robert Trout. Testimony in court March 5, 2025.

⁵¹ Chris Sullivan. Testimony in court March 4, 2025.

⁵² Robert Trout. Testimony in court March 5, 2025. Cross-examination.

⁵³ Vicki Granado. Video deposition played in court March 12, 2025.

⁵⁴ Joey Mahmoud. Email sent March 7, 2016. Exhibit 327A.

⁵⁵ Julie Price. Email dated May 20, 2016. Exhibit 821.

⁵⁶ Dakota Access, LLC vs. Dave Archambault II et al. August 15, 2016. Exhibit 1026B.

⁵⁷ Dave Archambault II. Call to Action of Indigenous People’s. Posted on SRST Facebook page, August 15, 2016. [link]

⁵⁸ Joey Mahmoud. Email sent September 5, 2016. Exhibit 160.

⁵⁹ Michael Futch. Testimony in court February 27, 2025; Sheriff Kyle Kirchmeier. Testimony in court February 28, 2025.

⁶⁰ Michael Futch. Testimony in court February 26, 2025.

⁶¹ Kelcy Warren. Video deposition played in court March 13, 2025.

⁶² Archambault stated to the North Dakota Monitor that he went to the meeting primarily concerned about safety, and that he told Warren “The fight against the pipeline had become much bigger than Standing Rock; it was about Indigenous rights and the long history of injustice faced by our people.”; Steurer, M. 2025. Energy Transfer board chair says he sought settlement with Standing Rock in 2016. North Dakota Monitor, March 17. [link]