Pipeline firm Energy Transfer Partners’ (ETP) lawsuit against NGOs it terms “rogue environmental groups” is “likely” to go ahead, according to one of the defendants, BankTrack, which has been advised its pending motion to dismiss the case will probably be unsuccessful.
The Dutch finance campaign group, along with Greenpeace and EarthFirst!, were accused – among a litany of other charges – of funding “eco-terrorists” opposed to ETP’s controversial oil pipeline that traverses the US state of North Dakota, in a lawsuit filed last August.
All the allegations have been “vehemently” denied by BankTrack, who stated in its motion to dismiss that the “bogus lawsuit” is “nothing more than an attempt to punish BankTrack for its justifiable (and more importantly, First Amendment protected) opposition to the Dakota Access Pipeline (“DAPL”)”.
Ryan Brightwell, Researcher and Editor at BankTrack, told RI that a ruling on the motion to dismiss – which was submitted to the US District Court of North Dakota in November 2017 – is still pending, despite the expectation that it would be received by the end of April 2018.
But when asked about the likelihood of success, Brightwell said that “we have been advised that it is not likely…it [the case against the NGOs] is likely to proceed”.
He added that if the case does go ahead it will be “lengthy and time consuming” and could have “very serious ramifications” for the small group.
Legal documents show that ETP is represented by Kasowitz, Benson, Torres LLP, the New York law firm whose founding partner Marc Kasowitz is Donald Trump’s long-term lawyer.
Steven Heim, Managing Director at Boston Common, the US SRI specialist, questioned the logic of the lawsuit when it was announced last summer. He told RI that, in his view, it “prolongs the controversy and keeps the Dakota Access Pipeline (DAPL) in the news… [and] could potentially make investors and lenders reluctant to take on this type of future pipeline project as it will raise the risk of future investments”.The investor response to ETP and its pipeline has varied in the wake of widespread condemnation from civil society over the impact of the project on the region’s indigenous peoples.
Last year, a report by UN Special Rapporteur, Victoria Tauli-Corpuz, found that the approval of the 1,900km oil pipeline was granted “without an adequate social, cultural or environmental assessment” and in “the absence of meaningful consultation or participation by the tribes”.
Following this, Norwegian mutual insurer and pension fund manager KLP excluded four companies involved in the project, in March 2017.
Nordea’s RI team had already (February 2017) recommended excluding ETP, Sunoco Logistics and Philips 66 over the pipeline.
In February 2018 – the same month that ETP called for the NGOs’ motion to be denied – PKA, the DKK275bn (€28bn) Danish pension fund, published its exclusion list which included ETP, its parent firm Energy Transfer Equity (EFE) and three other companies involved in the pipeline: Phillips 66, Enbridge Inc., and Marathon Petroleum.
Californian pension giant CalPERS told RI last year that had been engaging with ETP over the controversial pipeline but Anne Simpson, Head of Sustainability at CalPERS spoke of the difficulty of engaging with ETP due to the unusual structure of the company.
CalPERS was also one of 100 investors who put pressure on the major banks financing the pipeline to address concerns that it ran the risk of violating the human rights of indigenous tribes from the region, such as Standing Rock Sioux tribe.
Dutch pension investment giant PGGM’s Chief of Investment Management, Eloy Lindeijer, last month cited ETP in his response to a call from Greenpeace for it and other leading investors to get out of tar sands pipeline firms.