My granddad had a great expression when something was remarkable or astonishing: “Well, if that doesn’t just beat the Dutch!” It was a linguistic heirloom of the 17th Century when England and the Netherlands were commercial and naval rivals. Something had to be extreme to surpass even the Dutch, so that eventually became a common saying even on the American frontier.
It crossed my mind this week when a North Dakota judge ordered Greenpeace to pay the substantial damages awarded by a jury for the group’s organization and funding of protests at the Dakota Access pipeline. The pipeline owners, Energy Transfer Partners, sued and the jury found Greenpeace guilty of conspiracy, trespass, nuisance and tortious interference. The latter refers to a standoff that lasted months, with protesters chaining themselves to equipment, destroying pipeline parts, and throwing feces and burning logs at workers. The chaos delayed the project and cost pipeline owners an estimated $7.5 billion. The jury originally awarded damages totaling $666.9 million, which the judge eventually reduced by half.
Greenpeace lawyers said, “We will be requesting a new trial and, failing that, will appeal the judgment to the Supreme Court of North Dakota,” but they certainly aren’t banking on that. Instead, the group appealed the verdict – not to any court in North Dakota, but to a Dutch Court. Greenpeace International filed suit in the District Court of Amsterdam, asking it to overrule the American court. I am not making this up.
In ordinary appeals, a higher court is asked to review a lower court’s ruling. But here, Greenpeace is asking a Dutch court to review an American case under a European Union “directive” written to protect protesters against lawsuits. It is the first time anyone has tried to apply it outside Europe, though, and obviously Dutch courts have no authority in America. Greenpeace USA’s parent organization, Greenpeace International (which was also found liable in the case), is headquartered in the Netherlands, but of course it is not accused of any crime there.
The pipeline company, meanwhile, is appealing the judge’s reduction of the jury-awarded damages, which didn’t come close to reimbursing the money the protesters and their funders cost the project, its owners, employees, and especially customers.
In a financial court filing, Greenpeace USA certified that it does not have the money to pay, saying it will not be able “to continue normal operations if the judgment is enforced.” The organization reported $1.4 million in cash, and total assets of $23 million. Its leaders say the court-ordered damages would put Greenpeace out of business. How sad. This is the group that fueled today’s anti-automobile crusade with its now-famous 1990 New York Times ad, admonishing Americans, “It wasn’t the Exxon Valdez captain’s driving that caused the Alaskan oil spill. It was yours.”
Despite the bankruptcy threat, and notwithstanding any appeal to any foreign court, Judge James Gion said this week he will order Greenpeace to pay the judgment. That will touch off a round of appeals in the state Supreme Court, and it may take some time to be resolved. Whether or not the award is eventually paid, whether or not it puts Greenpeace out of business, it may at least caution some activist groups against going too far with these protests, which often lead to vandalism and violence. And rather than just arresting a few protesters, it is time the law focuses at least some scrutiny on those who fund and organize them.
Greenpeace tried to claim its employees had little or no involvement in the pipeline protests, and nothing to do with Energy Transfer’s construction delays. But at the time, an email from its own U.S. executive director boasted about the “massive” support it provided to the protests. According to trial evidence, that included funding and training the protestors and giving them the tools and equipment to chain themselves to pipeline machinery. No wonder the jury’s nine-figure verdict included $400 million in punitive damages.
Apparently, the group’s backup plan, in case the North Dakota Supreme Court fails to take pity on them, is the District Court of Amsterdam. The wording of the European law, upon which that filing is based, implies that its courts have power to relitigate cases – even in other countries – where they think parties have been subjected to “abusive court proceedings,” or “excessive” claims.
Maybe the European Union wants to regulate the entire world, but my guess is the North Dakota courts couldn’t care less what an Amsterdam district judge thinks. Doesn’t that just beat the Dutch!
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