Pre-Trial Findings in Energy Transfer LP v. Greenpeace

February 20, 2025

As the Monitoring Committee overseeing the proceedings of Energy Transfer LP v. Greenpeace in North Dakota state court, we are compelled to address critical issues observed during the pre-trial phase that raise serious concerns about the right to a fair trial enshrined in both United States and North Dakota law. These concerns relate to a) possible excessive restrictions imposed by the court on public access to the trial; b) evidence of an apparent judicial bias favoring the plaintiff; and c) evidence of an apparent strategy by the plaintiff to taint the jury pool by inserting biased advertisements and literature against Greenpeace into the community.

As background, the Monitoring Committee was formed because of longstanding concerns in the legal community that the proceedings in this case have been structured to put Greenpeace at a disadvantage and that the lawsuit has numerous characteristics of an illegal SLAPP action. SLAPP actions are designed to try to silence critics of the moving party (in this case, Energy Transfer) and exhaust their resources rather than litigate legitimate claims on the merits. Such cases are often couched in traditional legal claims (in this instance, defamation) but they violate free speech rights protected by various instruments, including the US and North Dakota Constitutions. A previous iteration of the same case already was dismissed by a federal judge on SLAPP and free speech grounds. Energy Transfer then refiled the case in state court under state claims where – with the support of Judge Gion -- it is proceeding to trial.

Restricted Access to Trial Proceedings

Transparency is fundamental to ensuring public trust in the judicial process. However, access to this trial has been severely limited, as follows:

1. Denial of Public Livestreaming: For reasons of transparency and to help protect the fair trial rights of Greenpeace, members of the public should be allowed to view this trial without needing to attend the trial in person. On February 10th, Judge Gion declined our written request for a public livestream of the trial.1 While we thank the court for its response, we are deeply concerned with the effects of this denial on the bedrock obligation of the court to promote transparency. More concerning is that the burden on the court to open the livestream to the public is negligible given that the court is already conducting a private livestream for the parties. Finally, there is a established precedent in the county of allowing television networks to broadcast jury trials in the county that were seen by millions of people. There is simply no credible justification to deny a livestream in a case that has attracted wide interest around the country and world.

2. Denial of Media Livestreaming: Despite the established practice of North Dakota courts permitting live media coverage of trials, including through the use of livestreaming, Judge James D. Gion denied a collective request from multiple reputable media outlets for expanded media coverage of the pre-trial conference on February 4, 2025. His denial cited procedural issues and concerns about witness sequestration—issues that easily could have been addressed with alternative measures.

3. Inconsistent Application of Media Policies and Precedents: As indicated, two high-profile criminal trials in Morton County – the same venue for the Greenpeace trial – were broadcast nationally on Court TV. The first was the 2020 trial of Earl Howard for a double homicide and arson. The second was the 2021 trial of Chad Isaak for a quadruple homicide.4 Both involved significant witness testimony and concerns about jury influence, yet livestreaming was permitted without compromising the trials. It is illogical to suggest that livestream coverage of this civil case poses a greater threat to jurors and witnesses than those criminal trials requiring proof beyond a reasonable doubt. Judge Gion’s restrictive approach conflicts with North Dakota's Administrative Rule 21, which favors expanded media access unless specific circumstances justify denial.5 Restrictions on the public’s ability to scrutinize the administration of justice in a case with global attention and ramifications should be limited in all but the most rare circumstances, like when the welfare of children or other vulnerable individuals is concerned. We note that the party that is repeatedly trying to block or limit public access to the courtroom and to evidence is Energy Transfer.

4. Failure to Consider Less Restrictive Alternatives: Judge Gion could have safeguarded public access without jeopardizing trial integrity by adopting standard practices used in other jurisdictions. These include delayed video broadcasts to prevent witness contamination, livestreaming only non-witness portions such as openings and procedural matters, while audio-only streaming the rest of the trial. Instead, he imposed a blanket ban on public access. His refusal to explore alternative options deviates from best practices and undermines transparency.

Judicial Rulings Favoring the Plaintiff

Judicial impartiality is vital for a fair trial. Yet, pre-trial rulings have created significant concern:

1. Pattern of Adverse Rulings: Rulings on pre-trial motions have consistently favored Energy Transfer. Defendants' motions for summary judgment, dismissal, and multiple evidentiary matters have been denied or left unresolved just days from trial. This pattern suggests an uneven playing field. Combined with the restrictions on public access, the totality of the circumstances raises serious concerns about whether the fair trial rights of the defendant are being adequately protected.

2. Sealing of Critical Evidence: Judge Gion allowed the plaintiff, Energy Transfer, to seal thousands of pages of documents related to the Dakota Access Pipeline’s history of oil spills and leaks.6 This impedes the defendants' ability to present a full defense to defamation allegations, undermines the fair trial rights of Greenpeace, and deprives the public of critically important information on matters of public health and environmental safety potentially affecting millions of people.

High Risk of Biased Jury Pool

A fair and impartial jury is foundational to justice. However, substantial evidence suggests that the local jury pool is compromised:

1. Prejudicial Mailers and Advertising: Energy Transfer or its affiliates appear to have distributed materials—including mailers and advertisements—in the jury catchment area and in other local 2 areas of the state portraying Greenpeace and the Dakota Access Pipeline protests in a negative light. These materials appear designed to sway public opinion and influence prospective jurors against Greenpeace. We are also concerned that Judge Gion has thus far denied a motion by Greenpeace to take discovery on who exactly paid for the mailers and ads, essentially denying the rights of the organization to motion the court for a remedy based on all relevant information.

2. Media Saturation and Social Media Targeting: Local news coverage in the area of the trial appears to have been dominated by negative portrayals of the defendants. This has been amplified by Facebook advertisements and other social media campaigns targeting the community, further eroding the possibility of an impartial jury.8 Again, it appears the plaintiff, Energy Transfer, or its surrogates are responsible, yet Judge Gion has denied motions to determine the source of the materials.

3. Judicial Inaction: Defense motions raising concerns about jury bias and seeking appropriate remedies have been treated in a cursory manner and have not been adequately addressed by Judge Gion.

Conclusion

The combination of our concerns regarding restricted public access, rulings favoring the plaintiff that in part appear to deny Greenpeace the right to present a full defense, failure by Judge Gion to resolve critical issues with sufficient time prior to trial, and the risk of a compromised jury pool endanger the defendants' right to a fair trial.

To address these concerns, we urge Judge Gion to:

• Reconsider the decision to deny dismissal on SLAPP grounds, as motioned by Defendant Greenpeace;

• Reconsider restrictions on public access and media access, and allow livestreaming to the public and the media in order to uphold public trial requirements;

• Resolve all outstanding motions prior to trial to ensure judicial fairness;

• Implement stronger safeguards to ensure an impartial jury, including:

  • allowing Greenpeace to take discovery prior to the trial to determine the responsible party for the mailer and ads referenced above;

  • consider shifting the venue to a part of the state where an untainted and impartial jury pool can be found.

The principles of justice and fairness are not only essential to the parties in this case but to maintaining public confidence in the legal system.