Trial monitors plan to observe North Dakota jury trial in Greenpeace, Energy Transfer case

A group of attorneys, activists and academics will be monitoring an upcoming trial between the developer of the Dakota Access Pipeline and Greenpeace to evaluate whether the proceedings comply with human rights standards.

In the lawsuit, filed in 2019, Energy Transfer accuses Greenpeace of defamation and orchestrating criminal behavior by Dakota Access Pipeline protesters.

Thousands of people traveled to south-central North Dakota in 2016 and 2017 to protest the Dakota Access Pipeline in solidarity with the Standing Rock Sioux Tribe. The tribe asserts that the pipeline is a violation of its sovereignty, poses a contamination threat to its water supply and has disrupted sacred cultural sites. Greenpeace was one of many activist groups that supported the protests at the time.

Energy Transfer seeks to recoup financial losses it claims it suffered as a direct result of Greenpeace’s actions during the demonstrations.

Greenpeace attorneys seek dismissal of lawsuit over Dakota Access Pipeline protest

Roughly six years and thousands of court filings after Energy Transfer filed suit, the case is scheduled to begin a five-week jury trial on Feb. 24 in Mandan.

Greenpeace says the lawsuit is a sham meant to put its U.S. branch out of business, and that it didn’t have a prominent role in the protests against the pipeline.

Scott Badenoch, a California attorney, said he has similar concerns about the case. A loss for Greenpeace could have a chilling effect on other advocacy groups, he said.

Badenoch is coordinating a 12-person monitoring committee to supervise the trial. Law students at Georgetown and Columbia will also support the effort.

Given the stakes of the case, public scrutiny is needed to keep the trial fair, Badenoch said.

“The smaller the audience, the more likely that something will slip through the cracks,” he said.

The team includes attorney Marty Garbus, who has represented numerous high-profile figures in civil rights cases, including Leonard Peltier, Nelson Mandela and Daniel Ellsberg.

“In my six decades of practice, I’ve seen many abuses of the legal system, and this case raises serious concerns,” Garbus said in a Monday news release announcing the committee.

Trial monitors are trained to look for signs of injustice — like evidence of bias in a judge or jury, or the use of underhanded legal tactics by attorneys. They also relay developments in the trial to the public. According to Badenoch, the monitoring committee will adhere to international standards for trial monitoring endorsed by the United Nations Human Rights Office.

The watchdog group says it’s already identified potential transparency and due process issues in Energy Transfer’s case against Greenpeace.

The committee questions how the court will be able to seat a fair jury, for one. Morton County is overwhelmingly Republican, with roughly 75% of voters backing President Donald Trump in the 2024 general election. Trump during his first term supported the construction of the Dakota Access Pipeline and ordered an expedited review of the project after it had stalled under the Obama administration.

Attorneys for Greenpeace previously asked Southwest Judicial District Judge James Gion to move the case to a different court, arguing that jurors would be biased against the environmental group. Gion denied the request, finding their evidence inconclusive.

Multiple judges were assigned to the case before Gion. Some recused because they were acquainted with one of the parties, court records show.

In its Monday news release, the monitoring committee also pointed to right-wing, pro-fossil fuel mailers that have recently shown up in mailboxes around the Mandan and Bismarck area.

The mailers, called Central ND News, contain some material complimentary of Energy Transfer and critical of Dakota Access Pipeline protesters, leading Greenpeace to argue they’re an intentional effort to taint the jury pool.

Gion recently denied a request by Greenpeace to investigate the origins of the mailer, though he agreed it may be targeted at potential jurors. Gion said he may reconsider the matter at a later date.

Judge denies Greenpeace request to investigate mailer critical of DAPL protests

The monitoring committee on Monday sent Gion a letter asking him to reconsider his decision not to allow the trial to be publicly livestreamed. Many who want to view the trial will not be able to attend in person, the letter noted.

There’s also no guarantee the courtroom will be big enough to accommodate everyone who does show up, Badenoch said.

Regardless of the judge’s decision, the committee hopes to have someone in the courtroom each day of the trial.

Gion previously denied a request from Greenpeace to livestream the trial, saying a public livestream could make it difficult to sequester witnesses before they testify.

“The court expects this case to be tried in the courtroom, not on social media,” he wrote in an order.

Attorneys for Energy Transfer also opposed the request, expressing fears that a livestream would invite too much public attention and could lead to the harassment of attorneys, witnesses and jurors.

Energy Transfer has pushed back against some requests for media access to court hearings in the case, citing confidentiality concerns.

“It’s very clear the company does not want scrutiny,” said Steven Donziger, a committee member. Donziger is known for representing Ecuador farmers and Indigenous communities in a pollution case against Chevron. 

He also has a history with the law firm representing Energy Transfer in the Greenpeace lawsuit, Gibson Dunn. Gibson Dunn represented Chevron in a subsequent corruption case against Donziger, which the oil company ultimately won.

Energy Transfer and Gibson Dunn did not respond to requests for comment.

The monitoring committee in its Monday letter to Gion also asked that court filings and daily transcripts of the trial be made available online.

Energy Transfer and Greenpeace have designated thousands of documents as confidential under a protective order approved in 2021. Some of these records are related to pipeline safety, attorneys have indicated in court hearings and records.

The watchdog group is funded by private donations and isn’t affiliated with Greenpeace, Donziger said.