Statement from Coordinating Moderator Scott Wilson Badenoch, Jr.

March 3, 2025

As a witness to the proceedings over the first week of the trial of Energy Transfer LP v. Greenpeace, it already appears these proceedings are falling far short of the standards for fair and public trials established by the International Covenant On Civil and Political Rights (to which the United States is a signatory), and the US and North Dakota Constitutions. Most concerning is that there is an apparent lack of transparency at almost every level of the proceedings. Huge swaths of documents have been put under seal by the court at the request of Energy Transfer; documents that had been made public are being brought back under seal, at the request of Energy Transfer; Judge Gion has denied multiple motions by Greenpeace for public access to the livestream currently only being viewed by lawyers for the parties. Significant evidence has emerged — documented in independent news reports and in a recent petition to the North Dakota Supreme Court submitted by Greenpeace — that the jury that has been seated by Judge Gion has already exhibited overt bias against Greenpeace. Shockingly, there is no court reporter at the trial even though the case is one of the most important civil trials related to free speech in the history of North Dakota and, quite possibly, the country. (The proceedings are audio-taped for later transcription, but it is unclear whether the transcripts will be made public.)

As a result of this situation, our team of trial monitors has been forced to find ways to become a de facto transcription service even though the court has more than enough capacity to do so itself. We have now spent numerous hours transcribing the entire first week of the trial by hand with pens and paper and then converting analog notes into digital format. It has been an unnecessary exercise born out of the obvious desire of plaintiff Energy Transfer to restrict public scrutiny and to reduce transparency and the court's willingness to accede to their demands.

Our team is undeterred by these obstacles or by the denial by the North Dakota Supreme Court of our emergency writ for public access to the livestream. We note that after we filed our writ, several major news organizations — including the Wall Street Journal and the New York Times -- filed their own writ to the North Dakota Supreme Court seeking access to the livestream. We are hopeful that at least a partial reversal of Judge Gion's denial of public and media access to the livestream will be forthcoming.

We also encourage Judge Gion to rule on pending and delayed motions before the court. These pertain to various issues related to First Amendment-protected speech and protest; a motion for change of venue due on ample evidence of a biased jury pool; and evidence of overt bias against Greenpeace or for Energy Transfer on the jury that has been empaneled. Our team witnessed 66 jurors throughout the process that led to the 11 final jurors; almost all had direct or indirect ties to the oil and gas industry and a clear resentment of the protests of the Dakota Access Pipeline that gave rise to the lawsuit. Greenpeace's motion to change venue is reasonable and in furtherance of the fundamental right to a fair trial.

Our monitoring team will continue to do our very best to shed light on the happenings of this case in furtherance of due process, civil rights, transparency, and public trials.