Special Series: 7 of 11 Jurors Tied to Fossil Fuel Industry as Pipeline Company Wraps Up Arguments

For five weeks, I'm living in Bismarck, North Dakota, covering a major fossil fuels and First Amendment trial for Drilled. Today the pipeline company Energy Transfer wrapped up its arguments against Greenpeace. But even as they did so, new information emerged about economic ties between jury members and the pipeline.

Before I get into it, some background:

The company behind the Dakota Access Pipeline is suing Greenpeace for defamation, conspiracy, and tortious business interference. Essentially they're claiming that Greenpeace was the driving force behind the Standing Rock movement in 2016 and 2017, causing over $230 million in damages, including construction delays, security costs, property damage, and debt refinancing costs.

This is news to the Lakota, Dakota and Nakota people who actually led the anti-pipeline movement.

Numerous civil liberties and environmental groups are labelling this a SLAPP suit. A Strategic Lawsuit Against Public Participation is not necessarily meant to be successful in court, but rather to drain political opponents of resources and send a signal that everyone else should keep their mouths shut – or else. And it could bankrupt Greenpeace.

While I chip away at a bigger project, I'm planning to share some of what I'm seeing on the ground in Eco Files. For more of a blow-by of what went on in the courtroom, check out my Bluesky.

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The plaintiffs wrap up their case, as new jury info is revealed

As of today, Energy Transfer has finished presenting its arguments against Greenpeace. (Which means I've been sitting in that courtroom for two weeks now – whew.) Next week, the defendants will take the lead. But even as the plaintiffs wrapped up their case, it was revealed that a juror disclosed a previously unknown economic connection to the Dakota Access Pipeline. The juror shared that as part of their job, they at times do work for MPLX, a company that transports, stores, and processes natural gas liquids and oil.

It's unclear whether or not the juror knows it, but MPLX owns a minority interest in the Dakota Access Pipeline. Its parent company, Marathon, disclosed in its annual 10K statement, "MPLX holds a 9.19 percent indirect interest in a joint venture ('Dakota Access') which owns and operates the Bakken Pipeline system."

The juror noticed "MPLX" on a document displayed as part of the case. "I believe at times my hours are charged through MPLX," the juror disclosed to the judge. To address the issue, everyone in the courtroom besides the lawyers were asked to leave. The juror was brought back in and asked if, given this new information, they still felt that they could follow the judge's instructions and pay attention only to the evidence in court. The answer must have been yes, because the trial continued with all jurors.

Maybe I shouldn't have been surprised but the jury makeup is remarkable, and it doesn't bode well for Greenpeace.

On the jury of 11:

7 with economic ties to the fossil fuel industry
5, at least, who expressed negative impressions of the protests
2 with family in law enforcement while the protests were on
A spouse of a juror worked for 10-code, a DAPL security contractor
A spouse of a juror worked for Michels, the construction contractor that drilled under the Missouri River
All are white

(Note that I'm intentionally leaving out jurors' genders, and I'm not mentioning where there's overlap among categories. These folks didn't have any choice in whether or not they'd be a part of this, and they don't deserve to be doxxed.)

This was the best Greenpeace could do, given the people in the wider jury pool. For literally years leading up to this trial, Greenpeace has been trying to get a change of venue. They've argued that because the anti-pipeline protests disrupted this small, mostly white city's daily life, local opinions are heavily weighted against opponents of the Dakota Access pipeline. All the judges in the county recused themselves from the case because of conflicts of interest.

During voir dire, negative feelings about the protests seemed close to uniform, and person after person described economic ties to the fossil fuel industry. As one member of the jury pool said of the pipeline protests, "I think you'll have a hard time finding people completely unbiased on that." Asked if anyone felt the same way, all but a few of the 25 or so potential jurors in the room at that time raised their hands.

One potential juror had a friend in the National Guard who was called to respond to the protests. When one of the lawyers asked if he could ignore what his friend told him, he asked, "Wouldn't that be impossible?" I'd been wondering the same thing.

Some of the chosen jurors with fossil fuel ties said their economic connections to the industry mean they have a positive view of the Dakota Access Pipeline and a negative view of organizations that oppose fossil fuels. “We have a lot of oil on our land,” said one juror, to explain their views.

“My job depends on fossil fuels,” especially coal, explained another juror with negative views of organizations that oppose fossil fuels. A second juror also works in the coal industry.

One of the jurors who works in the fossil fuel industry raised their hand when attorneys asked if anyone felt this wasn’t the case for them. Why? Because they work in the fossil fuel industry, the juror said. Three other jurors said their spouses have been involved with oil.

That excused juror's question kept ringing in my head: Wouldn't it be impossible to ignore your lived experiences and what you've heard from your closest loved ones? Even if you were under oath?

Michels, the construction contractor that employed a juror's spouse has come up over and over again over the course of the trial. The company was the one that drilled under the Missouri River — the issue at the heart of the protests. Protests repeatedly halted their work. Energy Transfer told the jury that Michels charged the pipeline company $882,052 related to vandalism, over $2 million for protest-related cleanup, and $623,010 for standby time. The spouse apparently didn't work for them during construction. But still, how could that juror not see their spouse in those stories?

On Monday Energy Transfer called a law enforcement witness who talked about how his family faced threats during the pipeline construction. There was no clear link between those threats and Greenpeace. But how would a family member of a cop who policed the protests not have an emotional response to that? Some of the alleged defamatory statements they're being asked to judge have to do with law enforcement and private security using violence against peaceful protesters.

10-Code, the security contractor that employed a spouse of a juror, has also come up often. Energy Transfer says they paid the company $8 million for DAPL security. Again, the spouse didn't work there during the protests. But still, wouldn't this feel at least a little bit personal to someone with ties like these?

Ultimately the chosen 11 took an oath to follow the judge's instructions and only consider the evidence in the courtroom. And maybe they will be fair. I certainly have relatives who do all kinds of work, and that doesn't mean I'd support a SLAPP suit filed by their bosses. But the appearance of bias is palpable.

Supreme Court Motion to Change Trial Location, Denied

Last week, Greenpeace filed a request to the North Dakota Supreme Court to change venues. They noted that beyond the issues I described, a weird prop-pipeline "newspaper" called Central ND News has been going out to area residents, attempting to remind them of how terrible the protests 8 years ago were. Greenpeace has traced a link between the weird paper and a big donation from Kelcy Warren. The paper is even going after journalists.

You could certainly see the impacts of Energy Transfer's PR efforts among the jury pool. One potential juror mentioned a $3 million donation the pipeline company had made to the Mandan Library. Another brought with him the copies he'd received at home of the Central ND News. The one time I found myself in front of a TV this week, an Energy Transfer commercial was blaring.

Greenpeace wanted the trial to be held in Cass County, which includes Fargo. There's more people, so more diversity in the jury pool, and people are less likely to have an already-fixed opinion of what happened during the protests.

Nonetheless, on Wednesday the North Dakota Supreme Court denied Greenpeace's request for change of venue. Among the justices that reviewed and rejected the filing was Douglas Bahr. Bahr happens to also be one of the Morton County judges who recused himself in 2019 from presiding over Energy Transfer v. Greenpeace. After I asked for comment on the matter, a notice appeared on the case web site, that said that Bahr had since been "disqualified."

Also denied at the North Dakota Supreme Court: press access

A particularly annoying thing about covering this case is that reporters are allowed no cameras or recording devices – not even for notes. We can't even bring phones or laptops into the courtroom. I'm working for a podcast, so you can see how this is a problem.

The judge is worried about jury or witness contamination, but I really can't see how that's any more of a risk here than it would be in any other case. And given the international attention this case is getting, it's a disservice. This case is costing an enormous amount of public resources, and threatening an organization that seeks to act in the public interest. The public should be allowed robust access to what's happening in that courtroom.

This local attorney Jack McDonald and the Reporters Committee on Freedom of the Press appealed to the state supreme court, to try to get us camera access (which presumably would include audio) as well as a livestream, so folks can report on this from out of state. But that request was also denied.

Yet another supreme court motion from the Water Protectors Legal Collective requested a livestream for the public and for a team of trial monitors that is observing the case. The court denied it, too. Here's the trial monitors' statement on the lack of transparency + bias in the jury.

A Few More Thoughts on the Case Presented So Far

My overall assessment: I kept waiting for a big reveal that never came. Greenpeace certainly played a part in training people in non-violent direct action on the ground, and they clearly pressured banks divest from the pipeline. But even if I do as the jury is instructed and ignore everything I already know about this pipeline fight, focusing only on the evidence presented in court, the argument that Greenpeace was responsible for everything that happened there is feeling far-fetched.

The company wants the jury to disregard the fact that Standing Rock leaders were blocking construction and filing lawsuits about the pipeline for weeks before Greenpeace showed up. The cops and executives put on the stand didn't seem to have clocked a central role for Greenpeace, as the project was being built. In fact, the event that caused the anti-pipeline camps to swell on the prairie – security dogs caught on camera by Democracy Now! attacking protesters – happened before Greenpeace employees even showed up.

Again, my blow-by-blow on Bluesky will tell you more about what I saw in the courtroom.

But I'd say it's not impossible that the jury will see through this. We'll find out over the next two weeks....

On the upside....

I have discovered an excellent new travel snack. Mitica's honey cinnamon largueta almonds. The perfect combo of spicy, sweet, salty, nutty. I die.

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