Title: Climate Activism After the $667 Million Greenpeace Judgment

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Brian Lehrer: Brian Lehrer on WNYC as we continue with our Health and Climate Tuesday section of the show, which will keep up at least through the first 100 days of the Trump administration so those issues don't get lost in the crush of other headlines. We turn now to a court ruling last week against the environmental group Greenpeace over a climate-related protest. It's a ginormous damage award that could possibly force Greenpeace to fold.

What are the implications for climate and other kinds of protest if the ruling stands? With me for this is Michael Gerrard, founder and faculty director of the Sabin Center for Climate Change Law at the Columbia University Law School. Professor Gerrard, thanks for coming on for this. Welcome back to WNYC.

Michael Gerrard: Good to be with you.

Brian Lehrer: This was a defamation case. Can you explain the basics of what Greenpeace was protesting when and who sued them over it?

Michael Gerrard: In 2016 and 2017, a company called Energy Transfer was building an oil pipeline near the Standing Rock Indian Reservation in North Dakota and passing under a lake that was their drinking water supply. The members of the tribe and many others were protesting. Greenpeace played some role. They were training the protesters but the Energy Transfer company sued Greenpeace and a couple of others, saying that they had disrupted the construction of the pipeline, that there had been vandalism, other things that happened.

They sued them in federal court. That case was dismissed. They then brought a new lawsuit in state court in North Dakota. There was a trial and last week the jury awarded $660 million against Greenpeace to Energy Transfer.

Brian Lehrer: How did the jury arrive at or prove that number?

Michael Gerrard: That is not at all clear. They gave the number, but it was reputational damage to the company, delays in the construction. The pipeline was ultimately completed and is now operating so it didn't prevent them from doing it. Clearly on the appeal the Greenpeace is going to take to the North Dakota Supreme Court, they're going to make arguments that that number is way out of line with any actual proven damages.

Brian Lehrer: As far as you can tell, was there a financial cost to the company of the way Greenpeace was protesting and trying to disrupt their operation?

Michael Gerrard: The protest certainly had an effect on the company. They delayed the construction of the pipeline. They had to bring in security and various things. Another big issue was just what was Greenpeace's role? Greenpeace said that they were merely training people, that they had been brought in by the members of the Standing Rock Sioux tribe, that their role was minimal, but obviously the jury didn't go along with that.

Brian Lehrer: Conceptually, is it fair what I guess their side is arguing, the company side, that it's a reasonable place to draw the line. A protest in and of itself is one thing. The kind that actually stops lawfully approved work from being done and that causes losses in the process is another and should be eligible for defamation or other liability lawsuits. What's your position on that?

Michael Gerrard: Picketing on public property is clearly a protected First Amendment speech. If you're violating state law by trespassing, for instance, or engaging in vandalism, then that crosses a line. Here the plaintiffs alleged that at least some of the protesters were trespassing and were destroying property. That kind of activity is not protected speech. What the damages are is a major issue but the acts of vandalism and trespass are not protected.

Brian Lehrer: Listeners, who has a question or a comment or even a story maybe about any protest that you've participated in or if you're with a company or any other entity that has protested against you? 212-433-WNYC, 212-433-9692. As we talk about this court ruling in a defamation case against Greenpeace with that huge damage award with Professor Michael Gerrard from the Columbia University Law School. 212-433-WNYC, 212-433-9692. Call or text.

I'm thinking of something in a whole other area of protests that may or may not be an analogy here but it occurred to me, the case of protesters who blocked abortion clinics. Courts have drawn a line between protesting just outside or actually blocking entrance for women. You might be, I don't know, more sympathetic to that kind of line over that. Is it a good analogy or no?

Michael Gerrard: Well, I think there are resemblances there. Certainly protesting outside with picket signs, whether it's an abortion clinic or a oil pipeline is lawful but when you're actually physically preventing people from entering, I think in either case, that raises other legal difficulties.

Brian Lehrer: With respect to protesting an energy company's work for climate purposes, where would the line be?

Michael Gerrard: Again, are you physically stopping something from happening or are you just engaging in speech? Are you just giving your views in a peaceful manner that is not physically blocking anything?

Brian Lehrer: Is this ruling a precedent setter or have there been ones like this before?

Michael Gerrard: It's not legally a precedent because just North Dakota, but it's certainly an example of great success so far that an energy company has had. There have been many lawsuits brought by companies against people who have protested their activities. This is something called SLAPP suits, Strategic Lawsuits Against Public Participation. These have been going on since at least the 1980s.

35 states, plus DC have passed laws that make it more difficult to bring a SLAPP suit because a lot of these SLAPP suits were being brought not because of physical obstruction, but just because of showing up at hearings or filing lawsuits or that kind of thing. Most of the states have concluded that should be protected. North Dakota is not one of them. North Dakota does not have an anti-SLAPP suit law, but most states do. We still see some of those cases, but there are fewer of them now than there used to be.

Brian Lehrer: Well, your expertise is environmental law, climate law, not media law. What you were just describing, these SLAPP suits, sounds consistent, many critics might say, with the way Trump is suing news organizations for defamation, hoping to set new precedents or overturn old ones on what kinds of speech is constitutionally protected when it comes to public figures, or at least have that chilling effect on critical coverage. Do you see an analogy there?

Michael Gerrard: Yes. Now, of course, in those cases, some of the news organizations have settled. ABC paid Trump a lot of money because of something that George Stephanopoulos had said on the air. It was not actually-- it didn't go to trial. A judge didn't say that ABC was liable so there's a real concern that some of the big media organizations are just giving into that. Had that case gone to trial or some of these other cases gone to trial, it's not at all clear that the plaintiffs would be winning.

It's clearly an intimidation tactic. We're seeing that by some of the energy companies that realize that even if they don't ultimately win, they can chill speech. I think that could be one of the real impacts of this Greenpeace ruling.

Brian Lehrer: Was Greenpeace investigated for any criminal acts if vandalism was involved, if actually stopping a company from doing lawful work was involved?

Michael Gerrard: Greenpeace said that they actually advised the people they were training not to engage in any illegal acts. Energy Transfer said the opposite. It sounds like the jury believed Energy Transfer. Greenpeace again, is going to appeal to the state Supreme Court saying there wasn't really concrete evidence of that.

Brian Lehrer: Let's take a phone call. Here's Morgan in Huntington. You're on WNYC. Hello, Morgan.

Morgan: Hi. Thanks for taking my call. I work for a climate activism organization called YEARS Project. We've been talking about this specific suit at our organization. Something that has come up was I heard a comment that there's a legal gray area about whether it's private or public land. Well, something we're seeing under the current administration is public land becoming more and more at risk and potentially being leased to oil and gas companies and becoming no longer public land, but private land. Just really curious if anyone has information about where that legal gray area is, if our public lands are at risk and whether we can protest on them or not.

Brian Lehrer: Professor Gerrard?

Michael Gerrard: I don't think that's been litigated yet. I think what you raised is a very legitimate question that the more land that the federal government leases out to private parties, to what extent do the private parties now have the ability to exclude protesters? There was an important Supreme Court decision a couple of years ago where it was found to be a violation of law for labor organizers to be protesting on private property. That was considered to be a taking of private property. Whether you can take a leasehold in the legal sense is an interesting question.

Brian Lehrer: Morgan, thank you very much. I hope that's helpful. If this is really an existential threat to Greenpeace, this $660 million damage award, it could actually shutter Greenpeace. Has anything like that ever happened before?

Michael Gerrard: Not of this magnitude. Let me say there's an additional factor here that a year ago, the European Union issued an anti-SLAPP suit directive, and Greenpeace International, which is based in the Netherlands has sued Energy Transfer in the courts of the Netherlands, saying that this lawsuit is violating the European Union directive. Now, it's not clear that that'll have much effect in the US but most of the assets of the overall Greenpeace umbrella are not in the US and this lawsuit in the Netherlands may prevent Energy Transfer from getting at those assets.

Although this is an existential threat to Greenpeace USA, the separate entities of Greenpeace International and Greenpeace Fund are based in Europe. This European law and the lawsuit that Greenpeace has brought may get in the way of Energy Transfer enforcing that judgment in Europe.

Brian Lehrer: Oh, interesting. Peter in Florida, you're on WNYC. Hi, Peter.

Peter: Hi. If I'm like other people, the first time I heard about Greenpeace was they had that reputation in the Pacific of getting these boats in between, it was Japanese whale hunting. They were torpedoing whales to eat them and Greenpeace would get in between the whale and the boat. Anyway, to me, that's the reputation Greenpeace had, very much activists obstructing. Did that come into play with their activity now in North Dakota?

Brian Lehrer: Peter, thank you.

Michael Gerrard: Yes. Greenpeace has its own boats, and they engage in physical activities, boarding boats. There was the case a few years ago where they boarded some ships and offshore oil platforms that Shell Oil was using in the North Sea. Shell sued them for a lot of money. They settled the case recently. Greenpeace just had to pay £300,000 to some UK organization. Greenpeace does not only engage in picketing, they engage in some of these physical activities and that certainly came out in the North Dakota trial.

Brian Lehrer: Susan in Hackensack, you're on WNYC. Hi, Susan.

Susan: Hi, how are you? I was wondering to what extent do protesters have a responsibility for what other protesters do? I mean like say in a group that are protesting in one specific area. Is that an issue with this Greenpeace situation.

Brian Lehrer: Go ahead, Professor.

Michael Gerrard: That absolutely is an issue. Greenpeace said that they didn't cause or contribute to or encourage the vandalism and they shouldn't be responsible for it. Again, the jury disagreed. This happens in lots of instances where you have protests and there are a few bad actors in the protest who violate the law, whereas everyone else is peaceful. Under normal doctrine, the other people wouldn't be liable but then you have allegations of conspiracies, and if it really is a conspiracy to act, then everybody who's part of the conspiracy can be liable for what everybody else does. You have a lot of difficult factual issues that arise in these kinds of cases.

Brian Lehrer: Did they sue any individuals who were most involved in the alleged actions or just the group?

Michael Gerrard: They did sue a couple of individuals and a couple of those were dropped because they didn't have specific enough evidence against those individuals. I think clearly the company, Energy Transfer was going after Greenpeace. They wanted to make a statement. They wanted to really inhibit these kinds of organized protests, and they realized that the individuals wouldn't have any money to pay anyway.

Brian Lehrer: Listener texts, "On the topic of trespassing on private property for the purpose of protest, sometimes this is the most effective way to enact change. A historic example that comes to mind is sit-ins at private lunch counters during the civil rights movement of the '50s and '60s. It's not exactly analogous," the listener writes, "but of course, the protesters were brutalized and arrested because they were technically trespassing. Sometimes what is legal is not always what is right." Is that part of Greenpeace's strategy? They're alleging violence here, in this case at least, property damage, kinds of violence, but nonviolent civil disobedience, such as trespassing?

Michael Gerrard: People who engage in civil disobedience are knowingly taking a risk. They realize that they may be violating the law, they may be arrested, but it's for a greater good. That's been going on for a very long time and often is effective. People have to make their own choices about what kind of risks they want to take.

Brian Lehrer: Listener writes, "I was at Standing Rock October-November 2016. They worked right through President Obama's 2016 stop work order for further EPA study. They just paid the daily fine. The workers also told us that this will all go through and Trump gets elected. We laughed about that, but it was said with great conviction and confidence, almost like they knew something we didn't know about that election."

That brings up a whole other issue, which is how effective is regulation? If there are fines imposed on companies who are doing things that are deemed to be illegal for climate or other purposes, but the fine isn't enough to stop them from doing the work, the fine just becomes part of the cost of doing business.

Michael Gerrard: Some of the environmental laws have fines that are extremely high and very significant and really do have a big deterrent effect. Some of the other laws are the ways that they're enforced by administrations that aren't as enthusiastic about environmental enforcement, can be very low and can be accepted as part of the cost of doing business. That's a persistent problem.

The government generally has the ability to impose fines that are so high the companies just won't do it. There are a lot of companies that consider themselves to be responsible corporate citizens and don't want to violate the law, even if the fine is not very big but that doesn't speak to every company and it doesn't speak to every enforcement regime.

Brian Lehrer: In our last 20 seconds, if Greenpeace USA is trying to avoid being bankrupted by this, what's the appeals process like from this point?

Michael Gerrard: They go to the North Dakota Supreme Court and we'll see what they say. I'm not sure what their political composition is, but we'll find out.

Brian Lehrer: Michael Gerrard, founder and faculty director of the Sabin Center for Climate Change Law at the Columbia University Law School. Thank you for coming on on our Tuesday Health and Climate section of The Brian Lehrer Show.

Michael Gerrard: Thank you.

Brian Lehrer: That is The Brian Lehrer Show for today, produced by Mary Croke, Lisa Allison, Amina Srna, Carl Boisrond and Esperanza Rosenbaum. Zach Gottehrer-Cohen edits our daily politics podcast. Our intern this term is Henry Saringer. Megan Ryan is the head of Live Radio and that was Juliana Fonda and Milton Ruiz at the Audio control. I'm Brian Lehrer. Thanks for listening. Stay tuned for All Of It.

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