Last year, American oil pipeline company Energy Transfer successfully sued Greenpeace in a North Dakota state court, winning hundreds of millions of dollars in the jury verdict. 

In a dangerous instance of international litigation abuse, however, Greenpeace sought relief by filing suit in the Netherlands in a case that has the potential to overturn longstanding legal principles and make American companies and courts subject to European Union laws. 

Greenpeace’s suit in the Netherlands seeks to overturn the North Dakota jury’s finding that Greenpeace engaged in acts of libel and other illegal activities in its protests against a pipeline being constructed by Dallas-based Energy Transfer. The jury ordered Greenpeace to pay $660 million in damages to the company, though the trial judge later reduced that amount to $345 million.

Before the jury even reached its verdict last March, Greenpeace had filed its countersuit arguing that the Norta Dakota lawsuit violates a new European Union directive that prohibits Strategic Lawsuits Against Public Participation, or SLAPP. But Greenpeace’s lawsuit has little to do with SLAPPs and everything to do with overturning the decisions of the North Dakota courts.

Greenpeace has asked the Dutch courts to find that the court proceedings in North Dakota were “abusive,” and that the claims made by Energy Transfer were “manifestly unfounded” despite the fact that the North Dakota jury felt otherwise after spending three weeks studying evidence and reaching a verdict. Greenpeace also asks the Dutch court to award damages that would offset any of the damages stemming from the North Dakota lawsuit.

Accordingly, if Greenpeace is successful in the Netherlands, it would effectively nullify the proceedings and verdict of the North Dakota courts. 

That would grossly violate the concept of legal comity, which remains one of the foundational principles undergirding the global legal system. 

In its most basic sense, comity is generally defined as the courts of one jurisdiction respecting the laws and judicial decisions of other jurisdictions out of deference and mutual respect. In practice, comity has meant that courts are generally unwilling and unlikely to take up matters that have previously been adjudicated in another jurisdiction, helping ensure judicial consistency and stability. 

For its part, Energy Transfer has appealed to the North Dakota Supreme Court to stop the Dutch counter-suit from moving forward. While a strained definition of comity might cause some to suggest that the North Dakota courts avoid weighing in on the Dutch lawsuit, comity actually compels the North Dakota court to stop it.

The reason for that is straightforward: Greenpeace filed its countersuit while the North Dakota litigation was still ongoing. Even today, the North Dakota lawsuit remains unresolved, since final decision on some matters from the trial judge and the inevitable appeals process remain pending. Consequently, allowing Greenpeace to proceed with its Dutch lawsuit would constitute a direct assault on the sovereignty of the North Dakota courts and their absolute right to adjudicate a dispute within their jurisdiction.

Furthermore, the EU’s anti-SLAPP directive itself constitutes an attack on judicial comity. Greenpeace’s criticism of the North Dakota lawsuit pulls language directly from the directive, which instructs its member states to refuse “the recognition and enforcement of a third-country judgment” if the proceedings are “considered manifestly unfounded or abusive under the law of the Member State.”

In other words, the EU is asserting that its courts have a right to provide oversight on the court proceedings of other nations, and even states within those nations, and supersede their judgments if they choose.

It’s also worth noting that Greenpeace played a significant role in crafting the EU directive that it now seeks to exploit. Greenpeace’s Senior Legal Counsel Strategic Defence serves on the steering committee of the Coalition Against SLAPP in Europe (CASE), an organization that advocated for the directive and worked directly with the EU Parliament in helping to craft it. 

By stopping Greenpeace’s Dutch case, the North Dakota courts would also be protecting its power to uphold its judgment through res judicata, also known as claim preclusion. Res judicata is the principle that “once a judgment is final, parties cannot pursue the same claim again.” That obviously protects litigants and the courts from having to re-litigate claims that have already been adjudicated.

In this case, the success of Greenpeace’s countersuit hinges on relitigating the issues already brought forward in the North Dakota case. By arguing that Energy Transfer’s original claims were unfounded, Greenpeace and the Dutch courts will be re-litigating the claims that the North Dakota courts have already heard.

If the North Dakota courts decline to shut down Greenpeace’s countersuit, a dangerous new precedent will be set that European organizations and companies can openly defy U.S. law with the full backing of the E.U. That has the potential to fracture ties between the two entities and embolden protesters to engage in even more damaging and violent actions against American companies.

For all of those reasons, Greenpeace and the E.U. must not be allowed to undermine legal principles that have governed judicial and international disputes for centuries. To prevent that result, the North Dakota court must shut down Greenpeace’s countersuit, and defend the rights of American companies and American courts. 

Disclaimer: The opinions and views expressed in this article are those of the author and not necessarily those of The National Law Review.