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Dakota Access Pipeline Company’s Lawsuit Against BankTrack For Sending Letters Dismissed By Federal Judge

A federal judge dismissed a lawsuit filed by Energy Transfer Partners against an environmental and human rights organization, BankTrack, for its advocacy against their Dakota Access Pipeline project.

BankTrack is based in Nijmegen, Netherlands, and as the court describes, the organization uses “engagement and public pressure to stop banks from financing specific projects it disagrees with.”

Letters to banks financing the Dakota Access Pipeline were organized, and Energy Transfer Partners sued BankTrack for hundreds of millions of dollars. The corporation alleged that BankTrack was involved in “criminal racketeering” and owed damages under the Racketeer Influenced and Corrupt Organizations (RICO) Act.

“An extreme minority of DAPL protestors committed criminal acts that harmed Energy Transfer,” Judge Billy Roy Wilson ruled [PDF]. “But BankTrack’s letters did not plausibly cause or further arson, bombing, destruction of an energy facility, transportation of stolen property, drug trafficking, ‘acts of terrorism,’ or violation of the PATRIOT Act.”

BankTrack director Johan Frijns said the organization “raised legitimate human rights concerns arising from the Dakota Access Pipeline with the banks financing the project.”

“The judge’s decision confirms that this type of advocacy work is legitimate and is not ‘reasonably or plausibly related’ to any acts of criminal conduct,” Frijns added. “We hope the judge will now similarly dismiss the case against the other defendants, and that the ringing rejection of this case will discourage other corporations from launching these kinds of Strategic Lawsuits Against Public Participation.”

Energy Transfer Partners pursued this frivolous lawsuit to suppress activism. It filed similar lawsuits against Earth First! and Greenpeace, which the court has yet to dismiss.

Incredibly, Earth First! is not an entity that can be sued. Center for Constitutional Rights (CCR) senior staff attorney Shayana Kadidal previously argued it is an idea or banner for a movement, similar to Black Lives Matter. There is no formal membership. It is non-hierarchical and has no “regularly constituted officers,” which is the “paradox of trying to make a social movement into a defendant in a lawsuit.”

But that did not matter to Energy Transfer Partners. All that mattered to the corporation and its lawyers is that they encourage a federal court to criminalize activists involved in actions to protect the environment, including conduct that is generally protected under the First Amendment, because they view it as a threat to business.

Energy Transfer Partners conflated civil disobedience with terrorism while ignoring the vandalism their own companies engaged in through the construction of a pipeline on sacred indigenous land that belonged to the Standing Rock Sioux and Cheyenne River Tribes. They overlooked the damage that an oil pipeline, especially through any spills, will cause to the environment.

CCR applauded the judge’s decision in favor of BankTrack. “The court’s decision affirms that [the RICO Act] cannot be used to silence dissent against powerful corporate interests.”

“We await the judge’s decision on the parallel claims by ETP against Greenpeace and Earth First!, and hope that he likewise dismisses them, as corporations must not be allowed to litigate away the voices of their opponents who advocate in the public interest,” the organization added.

CCR submitted a filing on behalf of Earth First! Journal in February and made it clear to the court that the publication was not the same as “Earth First!”

In fact, Judge Wilson has refused to certify that Earth First! was ever properly served. That means technically Earth First! has not been officially sued by Energy Transfer Partners and probably will never be sued because it is impossible to sue a social movement.

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."