Greenpeace to Counter Sue Energy Transfer, Citing EU Anti-SLAPP Directive

Greenpeace International announced it intends to file a first-of-its-kind lawsuit against Energy Transfer, a United States (US) fossil fuel company.  The environmental group has sent a Notice of Liability to Energy Transfer, arguing that the company has engaged in a campaign of abusive lawsuits against Greenpeace International, which is prohibited under the recently adopted European Union anti-SLAPP Directive. Greenpeace International is demanding that Energy Transfer drop the lawsuit against it and provide compensation for the damages and costs Greenpeace International has allegedly suffered as a result of the enduring litigation pursued by Energy Transfer.

From Activist to Defendant: Greenpeace Faces Legal Backlash

Back in 2016, the Netherlands-based Greenpeace International participated in a collective effort to draw attention to the construction of an oil pipeline in the United States. Together with more than 500 other organisations, Greenpeace International had signed an open letter calling on banks to stop lending money to the Dakota Access Oil Pipeline (DAPL) project. The letter had been endorsed by the Standing Rock Sioux Tribe, an Indigenous group leading the protests against DAPL.

A couple of months later, Energy Transfer filed a lawsuit against Greenpeace International and several other defendants under the US Racketeer Influenced and Corruption Organizations Act (RICO). Energy Transfer referred to Greenpeace International as a “rogue eco-terrorist” group engaging in “criminal activity” and “inflicting billions of dollars in damage”. Moreover, the lawsuit accused Greenpeace International of terrorism, several forms of fraud, drug trafficking, and more. The RICO case was dismissed in early 2019, with the court stating that Energy Transfer had failed to build a strong enough case to evidence any of these serious allegations, nor had it showed how these alleged activities had caused Energy Transfer the no “less than $300 million” in damages it claimed to have suffered. The court had dismissed the case with prejudice, meaning that dismissal was final.

A week after the dismissal of the RICO lawsuit, Energy Transfer filed a different case. This is a tort-based case, alleging that Greenpeace International committed several torts against Energy Transfer, including defamation. Again, Energy Transfer is claiming several hundreds of millions in damages. According to the Notice, this case is set to go to jury trial in early 2025.

It is worth highlighting that Greenpeace International’s entire involvement leading up to this multi-year litigation was its signature under the open letter. Regardless, it has been forced to participate in the costly proceedings.

What is the EU anti-SLAPP Directive?

Greenpeace International, in its Notice of Liability, is asserting its rights that protect persons from strategic lawsuits against public participation (SLAPP). SLAPPs can take many forms, and pursue different legal strategies, but all attempt to silence or intimidate critics by burdening them with legal proceedings and egregious claims.

The EU’s Directive (EU) 2024/1069 (the anti-SLAPP Directive) came into force in May 2024. In an accompanying publication, the EU describes SLAPP lawsuits as “unfounded and abusive legal actions that aim to silence those working in the public interest on matters such as fundamental rights, the environment, and public access to information”. A legal definition of a SLAPP is not provided in the anti-SLAPP Directive. However, Greenpeace International argues that a non-exhaustive list of characteristics is contained within the anti-SLAPP Directive. As such, the group argues that the following characteristics may indicate a SLAPP: (i) where the case is pursued by a powerful entity in an attempt to silence public debate; (ii) where an imbalance of power exists; (iii) where legal tactics are used in bad faith; and (iv) where the past conduct of the claimant can be considered abusive in nature.

The anti-SLAPP Directive provides for several procedural safeguards for persons who are defending against SLAPPs, including damages claims, early dismissal of unfounded claims, and the award of costs and penalties. The anti-SLAPP Directive is the first legal framework that also protects persons from cross-border SLAPPs, as is the case for Greenpeace International.

The EU anti-SLAPP Directive requires EU Member States to ensure that the legal principles of the anti-SLAPP Directive are incorporated into their national laws by May 2026. However, even prior to such implementation, the principles of the anti-SLAPP Directive steered Greenpeace International’s interpretation of existing Dutch law in its Notice. In particular, the environmental group argues that under Dutch civil law, any act that is “an infringement of a right and an act or omission in violation of a duty imposed by law or of what according to unwritten law has to be regarded as proper social conduct” is unlawful (Article 6:162(1) and (2) of the Dutch Civil Code). Parties can also not exercise a right when their sole aim is harming another party (Article 3:13 of the Dutch Civil Code).