Environmental network Greenpeace is turning to the Dutch courts in an attempt to have a multimillion-dollar fine imposed in a US lawsuit set aside.
Significant interest is expected from Brussels in the case, which will be heard by the Amsterdam District Court starting on April 16.
Dutch judges are being asked to rely on European Union rules to overturn and effectively undermine a ruling by the US judiciary.
Amsterdam headquartered Greenpeace will file a damages claim for reputational harm caused by US-based oil and gas pipeline company Energy Transfer, the NGO told Brussels Signal.
‘’I am optimistic,” said Daniel Simons, Senior Legal Counsel Strategic Defence for Greenpeace International.
The controversy stems from the legal and political fallout of protests in 2016 and 2017 against the Dakota Access Pipeline, a 1,900km underground oil pipeline owned by Energy Transfer.
Demonstrations focused on the pipeline’s route beneath the Missouri River, upstream from the Standing Rock Sioux tribe’s reservation. Tribal leaders and activists opposed the project, warning that a potential leak could contaminate drinking water supplies and arguing that sacred land would be desecrated.
Despite sustained resistance, the multi-state pipeline entered service in mid-2017 and continues to transport oil from North Dakota to the US Gulf Coast.
For months, thousands of activists staged resistance in 2016 from a tent camp near the construction site. The situation escalated dramatically as tensions mounted, with activists committing acts of vandalism and security personnel and law enforcement deploying tear gas, pepper spray and rubber bullets.
Footage from the protests later featured in the documentary The War of North Dakota. It shows demonstrators from across the US shouting chants at police officers and security guards such as: “Stop killing us, you are on the wrong side.”
In the US, Energy Transfer sought $345 million (€292.6 million) in damages from Greenpeace, accusing the organisation of defamation, pressuring banks, eco-terrorism and inciting violence during protests against the construction of the North Dakota pipeline. In March last year, A US jury ruled in favour of the Texas-based company, ordering Greenpeace to pay $667 million (€565.8 million) in damages.
More recently, a judge in North Dakota reduced the amount to €292.6 million in an interim ruling. A final judgment is expected at any moment.
Greenpeace will be able to appeal the decision in the US.
In parallel, legal proceedings are now under way in the Netherlands, aimed at having the US multimillion-dollar fine nullified by Dutch courts. “We are confident,” Simons told Brussels Signal.
According to the NGO, Energy Transfer spread blatant falsehoods that led to Greenpeace being unjustly criminalised and suffering reputational harm during a so-called SLAPP lawsuit (Strategic Lawsuit Against Public Participation).
EU rules are intended to protect journalists and NGOs from these costly and intimidating lawsuits brought by politicians and multinational corporations.
On April 16, the Amsterdam court will first consider whether a Dutch court has jurisdiction to rule on a dispute that originated in the US.
“If the court does indeed declare itself competent, we will enter legally uncharted territory: can a Dutch court rule on an American dispute?” an Energy Transfer spokesperson told Brussels Signal.
He noted that the Amsterdam court’s ruling could have consequences extending far beyond the dispute between Greenpeace and Energy Transfer alone. “Particularly in light of the SLAPP directive, the core issues will be legal certainty, investment certainty, and the role of NGOs,” he said.
According to Energy Transfer, Greenpeace International acted in concert with Greenpeace USA to collectively damage the company’s reputation, resulting in significant financial losses.
It cited the fact that a letter was sent to 17 banks by the NGO BankTrack, signed by 506 organisations including Greenpeace, warning that Energy Transfer would desecrate cemeteries and sacred sites during the construction of the pipeline.
According to the company, the letter contained falsehoods and inflammatory language. Six banks stepped away from financing the Dakota Access Pipeline.
Greenpeace International has increasingly made its mark in courtrooms in the Netherlands. Recently, the The Hague District Court ruled in a case brought by the NGO that the Dutch state is doing too little to protect the Dutch Caribbean island of Bonaire from the consequences of climate change.
Critics argue that Dutch judges themselves have become climate activists and that Greenpeace deploys the judiciary as a covert political instrument.
