FOR IMMEDIATE RELEASE
September 19, 2024
Contact: Nizhoni Begay, WPLC Communications, communications@waterprotectorlegal.org
On September 17, 2024, two motions were argued in the Energy Transfer v. Greenpeace SLAPP suit—one by Greenpeace and one by Water Protector Legal Collective–before the South Central Judicial District Court for the State of North Dakota.
Greenpeace International argued a motion for sanctions against Energy Transfer (ET) and to compel completion of a deposition of ET’s CEO Kelcy Warren. Greenpeace addressed instances during Warren’s deposition on June 4, 2024, where counsel for ET improperly instructed Warren to not answer questions and highlighted the improper use of attorney-client privilege to shield topics from probing during deposition. Greenpeace seeks relief in the form of sanctions and a court order to complete Warren’s deposition.
The Water Protector Legal Collective (WPLC) is represented by North Dakota local counsel Chad Nodland, attorney Patricia Handlin, Natali Segovia and Summer Blaze Aubrey from Water Protector Legal Collective. Attorney Chad Nodland, argued WPLC’s motion to intervene in the case, highlighting the lack of public oversight of DAPL and potential threats to the environment, as well as the importance of making hidden documents currently under seal available to the public. Nearly 15% of the record in this case is sealed and over 8,000 documents have been designated by ET as confidential. WPLC addressed ET’s abysmal safety record as a pipeline constructor and operator. In Ohio, Energy Transfer used diesel fuel and hydraulic oil in its drilling fluid, and in Pennsylvania, it used Baroid MagmaFiber and Baroid Fuse-It in its drilling mud mixture; in both instances causing devastating pollution and harms to drinking water, the environment, and to people. In addition, WPLC explained there is information found in an expert report prepared for Greenpeace and filed in the North Dakota Supreme Court, that 1.4 million gallons of potentially toxic drilling fluid was released into Lake Oahe due to frac-outs during DAPL’s construction. This information is critical because of ET’s prior use of unapproved additives to drilling fluid in Pennsylvania and Ohio which led to water contamination at 21 different sites and ultimately, to the federal debarment of ET. Documents such as these and all confidential records exchanged in discovery and produced in the case are subject to destruction at the conclusion of the case (including settlement).
WPLC asked the court to lift the protective order and order the production of a privilege log of confidential documents in this case, documents related to pipeline safety, and documents related to desecration of cultural sites.
Greenpeace did not oppose the motion. ET argued in opposition to WPLC’s motion and repeatedly stressed this “unprecedented” motion would create a significant burden on ET as it attempts to prepare for trial. Despite already having a privilege log in the case, ET misconstrued WPLC’s request as one that would stall litigation and require an in-camera camera inspection of every document in the case. ET further objected to WPLC’s motion on the basis that if WPLC is allowed to intervene, any third-party could attempt to intervene under the Clean Water Act following WPLC’s lead.
WPLC Executive Director and Senior Attorney, Natali Segovia, said of the motion to intervene: “There is a need for people to understand how critical this is. Federal regulations require the fossil fuel industry to self-report pipeline issues and spills. There were 700 frac-outs amounting to 1.4 Million gallons of drilling fluid during construction and operation of DAPL that went unreported. So in practice, you’ve got the fox guarding the henhouse. There’s an honor system for fossil fuel companies to self-report, but they’re not honorable. That needs to change and it’s up to us to see that through.”
The judge took the arguments under advisement and will issue a decision in the coming weeks. Over 60 members of the public and other organizations called-in to observe the hearing, including members of the press.
Energy Transfer’s safety record is not just a thing of the past. Only a day before oral arguments, a pipeline owned and operated by Energy Transfer once again endangered public safety and environment, exploded in Deer Park, Texas, resulting in evacuation of nearly 1,000 homes and nearby schools. WPLC Staff Attorney Summer Blaze Aubrey reflected, “Energy Transfer has a disastrous record - it only cares for profit and expediency - consequences and people be damned. This is why our motion to intervene to lift the protective order is so important. Energy Transfer has again and again engaged in criminal activity constructing and operating its pipelines - this is a proven pattern - why would it change with the Dakota Access Pipeline? The answer is it likely did not and it’s up to us to keep these corporations accountable.”
For more information in this case please visit:
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.