NGO lawsuits in Europe spark concerns over a transatlantic legal backdoor

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BrusselsReport.eu
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A growing number of non-governmental organisations are turning to European courts to challenge cases they have lost in the United States — a strategy that tests the limits of judicial sovereignty. Critics warn that the approach risks creating a transatlantic legal backdoor. A recent lawsuit filed by Greenpeace at the District Court of Amsterdam against US energy firm Energy Transfer could prove a watershed moment, with implications extending far beyond the courtroom.

In March, Greenpeace was condemned to a massive 667 million U.S. dollar award in March in the United States, for its tactics to obstruct a new pipeline. It was ordered to pay this to a Texas-based oil company.  Last week, the court also ruled in favor of Energy Transfer, although it reduced the fine to be paid.

The case is relevant for Europe, given that Greenpeace is aiming to get back at the energy company by suing it in the Netherlands. 

Concerns have been raised that if Greenpeace gets its way in the Netherlands, this would effectively amount to “European courts to nullify verdicts of American juries and American judges”, according to Michael McKenna, a columnist for The Washington Times. He notes the following about the case:

“Energy Transfer’s case against Greenpeace has already provided a stark reminder of the lengths to which some are willing to go. In that trial, the jury heard compelling evidence that Greenpeace dispatched professional protesters to the region, provided equipment and then helped train other protesters at the site. Greenpeace also paid for lockboxes that protesters could use to tie themselves to construction equipment. 

In the months that followed, protesters engaged in acts of violence, vandalism and arson in their efforts to prevent the pipeline from being constructed. Greenpeace also disseminated — let’s be charitable and call it inaccurate — information about the company and its project, wrongly claiming that the pipeline would cross the sacred tribal lands of the Standing Rock Sioux Tribe. (…)

In its European lawsuit, Greenpeace does not offer any new evidence to dispute the findings of the North Dakota jury, which spent weeks hearing expert testimony and studying the evidence. Instead, it’s seeking a judiciary that is likely to have a more favorable view toward its brand of environmental extremism.” 

He points out about Greenpeace’s SLAPP – inspired lawsuit that “laws against strategic lawsuits against public participation were originally developed to protect free speech by shutting down frivolous lawsuits designed to silence people. In this case, the lawsuit was plainly not frivolous, given that a jury agreed with the plaintiff. Greenpeace’s ability to say what it thinks has not been impinged upon in any way. Indeed, it continues to regularly attack Energy Transfer in its press releases and blog posts.” 

He therefore warns: “If groups such as Greenpeace are granted de facto immunity from European courts to break American laws, their tactics would almost certainly become more violent and more damaging.”

 

Energy Transfer, the oil company that was the victim of Greenpeace, has called Greenpeace’s Dutch lawsuit “nothing more than a “do-over,” an effort to relitigate and politicize issues that have already been decided under U.S. law. This maneuver is a transparent political stunt designed to waste judicial resources, stage a broader activist campaign, and risk contradictory rulings.” 

It thereby added that it “will not allow Greenpeace to rewrite history or evade responsibility. The U.S. verdict was clear: Greenpeace broke the law, acted with malice, and caused extraordinary harm. Energy Transfer remains fully committed to defending its rights vigorously, ensuring that the rule of law is upheld, and putting an end to Greenpeace’s campaign of misinformation and disruption.” 

Earlier this month, the Financial Times carried the headline that “Europe has become a risky place for corporate green claims”, after a Paris court found Total guilty of “misleading commercial practices” in its public claims to be a “major actor in the energy transition”. The newspaper noted that “the verdict is particularly striking because TotalEnergies has been investing much more heavily in green areas than most of its oil and gas peers, with $4.8bn of capital expenditure on low-carbon energy last year.”  According to the FT, “the case is an important reflection of the tightening legal constraints in the EU around green claims by companies, following recent greenwashing verdicts against airlines KLM and Lufthansa.” The newspaper thereby adds that the “verdict made repeated reference to EU legislation passed last year, which prohibited green claims unsupported by “clear, objective, publicly available and verifiable commitments and targets”.

The Commission wanted to go further still with its so-called green claims directive, which would have forced companies to submit sustainabilityrelated messaging for approval before it could be published to consumers. That idea was withdrawn in June, amid concerns of bureaucratic over-reach and an excessive burden on businesses.”

Even if the stream of new green regulations seems to have stopped in Europe, for now, judicial action remains a major concern.

 

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