Water Protector Legal Collective Continues Fight for Corporate Transparency in Energy Transfer v. Greenpeace SLAPP Case

FOR IMMEDIATE RELEASE

December 19, 2024

Contact: Nizhoni Begay, WPLC Communications, communications@waterprotectorlegal.org 

Mandan, ND – On December 2, 2024, the Water Protector Legal Collective (WPLC) filed a Motion for Reconsideration in the ongoing Energy Transfer v. Greenpeace case before the North Dakota District Court. The motion for reconsideration seeks to correct legal errors in the Court's ruling denying WPLC's Motion to Intervene and Lift the Protective Order that currently shields critical documents related to the Dakota Access Pipeline (DAPL) from public scrutiny. The Court also granted ET’s Emergency Order to Enforce the Protective Order, effectively shielding over 8,000 documents from the public.

The Protective Order in question has been a point of contention in the legal dispute between plaintiffs Energy Transfer (ET) and the defendants, including Greenpeace. WPLC's motion challenges the Court's decision on multiple grounds, asserting that important public interest and safety issues have been overlooked in favor of shielding potentially harmful documents that reveal the true extent of ET’s environmental record.

Key Points from WPLC’s Motion for Reconsideration:

1. WPLC Seeks Access to Critical Documents for Public Safety: The Motion for Reconsideration argues that the Court failed to fully consider North Dakota’s strong public access laws and the ongoing environmental risks associated with the DAPL. WPLC seeks access to documents related to pipeline construction, safety violations, and environmental contamination, citing the public’s right to know and the state’s duty to ensure safe water and air quality.

2. The Court’s Ruling Ignores Relevant Precedents: WPLC asserts that the Court's denial of its motion to intervene was based on an erroneous interpretation of legal standards, particularly regarding the timeliness of the motion. WPLC points to legal precedent from the Eighth Circuit Court of Appeals, specifically Flynt v. Lombardi, which allows for intervention when the goal is to modify or unseal protective orders without needing to litigate the merits of the underlying case.

3. ET’s Motion to Enforce the Protective Order Lacks Merit: WPLC argues that ET’s attempt to enforce the protective order lacks merit, as the documents in question—such as the expert reports detailing the release of 1.4 million gallons of toxic drilling fluid into Lake Oahe—have been publicly available for months. WPLC notes that ET had multiple opportunities to object to these documents being cited and referenced, but failed to do so until after they were publicly exposed.

4. ET’s Attempts to Conceal Its Environmental Record: WPLC emphasizes that ET's actions to seal these documents are an attempt to cover up a long history of environmental violations, including a federal debarment due to criminal convictions for environmental crimes. The documents in question reveal serious concerns about ET’s pipeline safety practices, including frac-outs that may have caused significant contamination of Lake Oahe—critical water resources for Indigenous communities and the broader public.

“ET’s actions in this case are a direct attempt to hide evidence of their repeated violations of environmental laws,” said Natali Segovia, Executive Director and Senior Attorney at WPLC. “Transparency isn’t just a legal standard here; it’s a moral imperative. The public has a right to know the truth about the safety of DAPL. The court’s decision must reflect the gravity of this moment.”

Citing North Dakota Supreme Court Administrative Rule 41 and state constitutional provisions, WPLC argues that transparency in this case is not only a legal obligation but a moral one, especially when it concerns the health and safety of local communities.

On December 16, 2024 ET responded to WPLC’s Motion to Reconsider. Today, December 19, 2024, WPLC filed a reply addressing ET’s claims that WPLC could have intervened earlier and rebutting ET’s faulty interpretation of the standard for intervention. Due to ET’s delayed production of 500,000 pages of crucial safety documents in May 2024, the motion to intervene was filed as soon as WPLC was able to review this information. ET's delay in producing the documents created the need for WPLC to step in and ensure that public safety concerns were addressed. WPLC emphasizes the controlling case of Flynt v. Lombardi, 782 F.3d 963 (8th Cir. 2015), which allows non-parties to intervene to challenge protective orders based on a limited interest in public access to documents. WPLC argues that there is no overriding interest in keeping the pipeline safety materials sealed, particularly in light of public safety concerns related to the DAPL’s operation.

The outcome of this motion could have significant implications for the ongoing litigation, particularly concerning the public’s right to access information about the environmental safety of the Dakota Access Pipeline. WPLC’s legal action is focused on ensuring that documents revealing pipeline safety concerns, spills, and other violations are available to the public, regulatory agencies, and affected communities.

“This is about standing up to a pattern of environmental harm and disregard for Indigenous rights that has persisted for far too long. Allowing ET to shield these materials under a veil of corporate secrecy, sets a dangerous precedent that corporate interests can override the health, safety, and sovereignty of impacted communities and corporations can use the courts to hide potential environmental crimes and critical information from the public,” said Summer Blaze Aubrey, Staff Attorney with WPLC. “We refuse to let that stand.”

The Water Protector Legal Collective is a nonprofit law firm dedicated to providing legal support to environmental defenders, Indigenous communities, and grassroots organizations seeking justice for environmental protection and the defense of sacred water sources. WPLC has been at the forefront of challenging the Dakota Access Pipeline, representing the interests of those directly impacted by the pipeline's construction and operation.

To learn more about the battle over transparency and corporate accountability in Energy Transfer v. Greenpeace, visit:

Press Releases

• July 5, 2024: ​​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

• July 23, 2024: 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

• September 19, 2024: Update from Energy Transfer v. Greenpeace - WPLC Motion to Intervene Oral Argument

• October 17, 2024: Battle Over Transparency and Corporate Accountability Continues in WPLC Response to Energy Transfer’s New Emergency Motion to Enforce Protective Order Targeting WPLC in Energy Transfer v. Greenpeace

Media

• Video: Unveiling the Truth: Energy Transfer v. Greenpeace

• 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: Winona LaDuke, Barn Raiser, Water Protectors Use Novel Legal Tactic to Challenge the Dakota Access Pipeline

• 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

Case Documents

• 07.03.24 WPLC’s Motion to Intervene

• 07.17.24 Energy Transfer LP’s Response

• 07.17.24 Greenpeace’s Response

• 07.23.24 WPLC’s reply 

• 10.09.24 ET Emergency Motion to Enforce Protective Order 

• 10.16.24 WPLC Response to Emergency Motion

• 11.08.24 Opinion and Order Denying Motion to Intervene

• 12.02.24 WPLC Memorandum of Law in Support of Motion to Reconsider

• 12.16.24 ET Response to WPLC’s Motion to Reconsider

• 12.19.24 WPLC’s Reply