A judge has denied a request by environmental group Greenpeace to gather evidence on a right-wing, pro-fossil fuel mailer that may have targeted potential jurors in its legal battle with Energy Transfer, the developer of the Dakota Access Pipeline.

Some Morton County residents in October reported receiving a 12-page direct mailer called “Central ND News” containing material complimentary of Energy Transfer as well as stories that highlighted criminal activity by anti-Dakota Access Pipeline protesters. 

Greenpeace is one of many activist groups that backed the demonstrations in 2016 and 2017. Protesters camped in rural south-central North Dakota for months in solidarity with the Standing Rock Sioux Tribe, which says the pipeline is a tribal sovereignty and environmental threat.

Energy Transfer filed suit against Greenpeace in Morton County District Court in 2019, accusing the group of coordinating a misinformation campaign against the company and of engaging in criminal acts during the demonstrations.

Greenpeace seeks court permission to research mailer critical of DAPL protests

The pipeline developer seeks tens of millions of dollars in damages from Greenpeace.

Greenpeace says its role in the protests was limited, that it did not spread misinformation about Energy Transfer and that it never participated in or endorsed criminal activity. The case is scheduled for trial before a nine-person jury beginning in February.

In court documents, Greenpeace expressed concerns that the direct mailer was written specifically to give Energy Transfer the upper hand when the suit goes to trial. It requested permission from Southwest Judicial District Court Judge James Gion to conduct discovery into a Texas company that printed and distributed the Central ND News.

“We should have the right to figure out who sent it, when they did and why,” Everett Jack, an attorney representing Greenpeace, said in a hearing in December.

Energy Transfer has disputed this claim, arguing there’s no meaningful evidence the mailer was intended to prejudice the jury. Trey Cox, representing the pipeline developer, last month called Greenpeace’s motion a “thinly veiled attempt” to delay the trial and move the case to a different court.

In a Dec. 17 order, Gion seemed to agree with Greenpeace that the mailer may have been an effort to sway jurors.

“The Court takes an extremely dim view of attempts to influence a jury panel before the trial,” he wrote.

Still, the judge found it would not be appropriate to approve the discovery request without further evidence the mailer has had a measurable impact on the jury pool.

“There is only one way to determine if such an attempt is successful, and unfortunately the Court agrees with Energy Transfer that way is through the jury questionnaires and jury selection,” he wrote in the order. “If the Court cannot empanel a jury in Morton County, there will obviously be a delay in the trial and the Court can revisit this issue at that time.”

The direct mailer resembles a print newspaper. Its distribution in Morton County residents was first reported in a joint article by the North Dakota News Cooperative and climate news publication Floodlight. The article identifies the owner of the publication as Metric Media, which has launched hundreds of conservative-leaning local news outlets that rely heavily on algorithmically generated content.