A SLAPP From DAPL

By: Michael Chou

Introduction

Attempts to squash public advocacy through fictional complaints are fun to read, until the potential of them being taken seriously sets in. On August 22, 2017, in the Western Division of North Dakota, Energy Transfer Partners (“ETP”) filed a complaint against Greenpeace and other environmental nonprofits for racketeering in violation of RICO, defamation, tortious interference with business, and common law civil conspiracy, among other extraordinary counts. Essentially, ETP filed a Strategic Lawsuit Against Public Participation (“SLAPP”)—asserting that Greenpeace and the “enterprise” of environmental-advocacy organizations machinated the Standing Rock protests and propagated lies about the Dakota Access Pipeline (“DAPL”) to raise money for “sham campaigns.” ETP’s imaginative claims are aimed to intimidate and punish environmental organizations that aided Standing Rock protestors and to silence future demonstrations.

Standing Rock Background

The Standing Rock Sioux Tribe has peacefully opposed DAPL’s construction since 2014 with a fact-based concern: oil pipelines leak, and constructing DAPL poses a health risk to the millions of people who drink from and use the Missouri River. ETP partially owns DAPL, which runs for over 1,000 miles, crossing through four states and hundreds of waterways, including the Missouri River. Without permission from the Sioux tribe, the U.S. Army Corps of Engineers (“USACE”) began building the pipeline and issued a Nationwide Permit No. 12 to exempt the pipeline’s construction from environmental reviews under the Clean Water Act.

A diverse and powerful nonviolent resistance grew in response to DAPL. Steadily since April 2016, thousands of people from other Native American tribes (including the Omaha, Dene, Ho-chunk, and Creek Nations) along with farmers, ranchers, environmentalists, veterans, and people associated with other social movements rallied at the Standing Rock Sioux Reservation to defend the tribe’s land and to protect the universal right to clean water. Streaming videos on social media showed how the relatively peaceful protests and encampments were met with attack dogs, rubber bullets, and water cannons in below freezing temperatures.

Through the winter, the tribes and their allies continued to protest, eventually to some administrative avail: in December 2016, the USACE, under the direction of the Obama Administration, announced that it would look for alternative routes to build DAPL. On January 24, 2017, however, Trump ordered the USACE to issue the final easement for the pipeline’s initially planned construction, which they did on Feb. 8, 2017. Oil began flowing through DAPL in March 2017.

On June 14, 2017, in Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, United States District Judge James E. Boasberg wrote that the U.S. Army Corps of Engineers “did not adequately consider the impacts of an oil spill on fishing rights, hunting rights, or environmental justice, or the degree to which the pipeline’s effects are likely to be highly controversial.” He will likely decide whether DAPL can remain operational this month.

The Divestment Campaign

The tribes at Standing Rock and their allies are now encouraging banks and companies to divest from DAPL —with over $80 million from individuals and $4 billion from cities divested so far. Standing Rock Sioux Tribal Chairman Dave Archambault II said: “Banks now have an opportunity to take a stand against this reckless assault on our treaty rights and water, or be complicit and continue to lose millions.”

Echoing the call, people worldwide who empathized with the Standing Rock protestors have demanded companies and banks to divest. Because of the campaign, Norway’s largest private investor, Storebrand, has withdrawn over $34 million from companies tied to DAPL to inspire others to do the same. Consumer advocacy has prompted banks such as DNB (a Norwegian bank) and ING (a Dutch bank) to withdraw funding from DAPL. In addition, city councils, such as in Santa Monica and Seattle, have refused contract renewals with banks, such as Wells Fargo, who are invested in DAPL. One activist on the divestment campaign said that the protest camps at the Standing Rock Sioux Reservation “planted seeds in thousands upon thousands of people’s moral sensibilities.” ETP’s SLAPP suit intends to sterilize those seeds.

SLAPP Suit

In its complaint, ETP describes Greenpeace and their “enterprise” as “eco-terrorist organizations” and makes numerous false charges, including that the defendants organized the Standing Rock protest and exploited Native American tribes. In reality, as discussed above, the Standing Rock Sioux Tribe began protesting the pipeline years ago, and inspired thousands of others, including Greenpeace and other environmental advocacy organizations, to join the nonviolent resistance.

The complaint also claims that the defendants lied about DAPL’s environmental public-health risks and sensationalized DAPL’s threat of freshwater contamination. However, the pipeline has already leaked several times, bolstering the Sioux Tribe’s initial concerns. DAPL is far from the only pipeline to experience leaks: in the United States, more than 2,000 significant accidents involving oil and petroleum pipelines have occurred since 1995 and an average of about 121 accidents happened every year from 2013 to 2015. Some examples of other accidents include the following: Enbridge’s pipeline in Michigan, which spilled about 800,000 gallons of crude oil into Talmadge Creek and Kalamazoo River in 2011; the Bridger and Belle Fourche pipelines in Wyoming and Montana, which have spilled over 283,000 gallons of oil from 2006 to 2014; and the Magellan Midstream Partners’ pipeline, which spilled over 138,000 gallons of oil into northern Iowa in January 2017 (and even more recently, one of their oil tanks spilled over 460,000 gallons in Houston during Hurricane Harvey). Whether because of climate disasters or usual wear and tear, leakage from oil pipelines poses a discernible environmental threat to the public.

Through its lawsuit, ETP is trying to prevent another Standing Rock-like protest by punishing the organizations that assisted the anti-DAPL demonstrations and campaigns. If ETP’s SLAPP suit is taken seriously, Greenpeace and the other defendants would have to spend a substantial amount of energy and money litigating. However, taking the suit seriously has a wider impact: a threat on First Amendment rights. It would send a warning to all advocacy organizations and journalists that they could face similar lawsuits—thus, threatening their right to speak freely and to publicly advocate. Hopefully the deciding judge who reads this fanciful complaint gives it a quick laugh and discards it, because that is the most it deserves.