FOR IMMEDIATE RELEASE
October 17, 2024
Contact: Nizhoni Begay, WPLC Communications, communications@waterprotectorlegal.org
On October 16, 2024, the Water Protector Legal Collective (WPLC) filed a response to Energy Transfer’s latest Emergency Motion to Enforce Protective Order in the Energy Transfer v. Greenpeace case. In its motion targeting WPLC, Energy Transfer (ET) alleges information related to unreported and possibly toxic 1.4 million gallons of drilling fluid in over 700 frac-outs reaching Lake Oahe found in an Exponent Expert Report prepared for Greenpeace in January 2024, was confidential information that WPLC allegedly was only able to access through a “technological glitch.” A subsequent letter from Gibson Dunn, demanded WPLC provide information about how the report and another, Foley Hoag report–a report commissioned by the Banks behind the Dakota Access Pipeline regarding Tribal Consultation and industry best practices–reached WPLC’s hands.
“ET’s latest motion reaches the level of absurd. There was no technological glitch that gave WPLC access to these documents. The documents they complain WPLC accessed are expert reports that have been publicly available for over six months on the North Dakota Supreme Court website. ET could have objected to WPLC referencing these at any time before now–at the end of May when we sent them a litigation hold letter, in their responses to our July Motion to Intervene, or during oral argument in September–and chose not to do so,” explained Natali Segovia, Executive Director and Senior Attorney of WPLC. “What this shows is they didn’t take efforts to unseal pipeline safety documents seriously until information in the expert reports independently hit the press. Now ET is worried because their poor environmental record is on blast and their hem is showing. This new smokescreen is an attempt to distract from the underlying merits of the case and the ongoing concerns about DAPL environmental safety.”
ET’s Motion to Enforce the Protective Order argued they found a “technological loophole” in the North Dakota district court’s filing system, that allowed counsel for WPLC, and any other person with access to the district court’s filing system, to gain access to filings in the case, including filings that had been designated confidential by the parties. The motion aims to have the court seal these documents and stop them from further circulating publicly.
The response from WPLC is part of the ongoing legal dispute surrounding the alleged disclosure of confidential information regarding ET’s pipeline safety record and the push for greater transparency and public access to information pertaining to environmental safety by WPLC.
Here are the major points:
There should be no dispute over document confidentiality and access. The Exponent Report, containing potentially damaging information about ET's pipeline safety, was publicly available on the North Dakota Supreme Court website for over six months. In addition, WPLC points to instances where documents were directly served on WPLC by ET, constituting a waiver of confidentiality.
Energy Transfer’s motion is untimely and should be denied. WPLC asserts ET's motion to enforce the protective order is untimely, as they had multiple opportunities to object to the referencing of these documents but failed to do so. ET also did not object to WPLC's referencing of the Exponent Report during a court hearing in September 2024. WPLC argues this inaction constitutes a waiver of any objection: "ET has waived its right to object now and raise concerns of WPLC referencing documents that any member of the public has had full access to for over half a year."
This is an attempt by ET to further hide its poor environmental safety record. Citing publicly available documents, including the Exponent Report filed with the North Dakota Supreme Court, WPLC highlights ET's history of safety violations, including a federal debarment due to criminal convictions for environmental crimes in Pennsylvania. WPLC points out that ET does not dispute the underlying allegations about ET’s poor environmental safety record: "ET does not dispute the underlying factual allegations that assert its poor safety record led to federal debarment due to a nolo contendere plea to 23 criminal convictions for environmental crimes in Pennsylvania, and it does not dispute the likelihood of 1.4 million gallons of potentially toxic drilling fluid in over 700 unreported frac-outs reaching Lake Oahe during construction of the Dakota Access Pipeline in 2017."
Overall, WPLC’s legal efforts aim to ensure transparency regarding matters of significant public interest, not just for Indigenous Peoples but all affected by potential toxic drilling fluid in their water source. The court's decision on the enforcement of the protective order and the potential investigation into the alleged leak will have substantial implications for the ongoing litigation and the broader public debate surrounding pipeline safety and environmental protection.
Summer Blaze Aubrey, staff attorney with WPLC also reflected on ET’s latest motion, “ET is peddling snake oil in this new legal stunt. Not only has ET historically shown it works outside and in violation of environmental laws and regulations, but now aims to create a legal farce. We see through the smokescreen and only strengthens our resolve to work on behalf of our Peoples.”
The Water Protector Legal Collective (WPLC) is represented by attorneys Natali Segovia and Summer Blaze Aubrey from Water Protector Legal Collective, attorney Patricia Handlin, and North Dakota local counsel Chad Nodland.
For more information on this case please visit:
Media Coverage
Video: Press Conference: Standing Rock Sioux Tribe Urgent Update on #NoDAPL
Article: Mike Soraghan, Politico, 1.4M gallons of fluid leaked from Dakota Access drilling, report says
Article: Mike Soraghan, Politico, The legal long shot that could shut down Dakota Access
Article: Mary Steurer, North Dakota Monitor, Standing Rock Sioux Tribe files new lawsuit over DAPL
Press Releases
10.14.24 SRST: SRST Files #NoDAPL Fed Lawsuit Seeking Immediate Shutdown Of Dakota Access Pipeline
10.11.24 SRST: Press Conference: Standing Rock Urgent Update on #NoDAPL
09.19.24 Update from Energy Transfer v. Greenpeace - WPLC Motion to Intervene Oral Argument
07.23.24 WPLC Legal Battle to Uncover Critical Sealed Documents Related to DAPL Public Safety and Water Contamination in Energy Transfer LP et al. v. Greenpeace et al. Continues
07.05.24 WPLC Files Motion to Intervene and Lift Protective Order in Energy Transfer LP et al. v. Greenpeace et al., to Shed Light on Critical DAPL Safety Issues and Possible Water Contamination of Lake Oahe
Legal Documents
10.10.24 Gibson Dunn letter to WPLC
10.16.24 WPLC Response to Emergency Motion
07.03.24 WPLC’s Motion to Intervene
07.03.24 Energy Transfer LP’s Response
07.03.24 Greenpeace’s Response
07.03.24 WPLC’s reply
Born out of the #NoDAPL Movement at Standing Rock, the Water Protector Legal Collective is a 501(c)(3) Indigenous-led legal nonprofit that provides support and advocacy for Indigenous peoples and Original Nations, the Earth, and climate justice movements. Formerly based and headquartered in North Dakota, WPLC organized representation for and represented hundreds of Water Protectors arrested during protests against DAPL at Standing Rock to protect the Water, cultural and sacred sites, and treaty lands impacted by the pipeline construction between August 2016 and February 2017. WPLC continues to represent Water Protectors, actively defends against SLAPP suits, and advocates for corporate accountability in harmonization with obligations under state, federal, and international human rights law. To learn more about WPLC and how to support our work, visit: www.waterprotectorlegal.org.