Attorneys for the builders of a 1,200 mile pipeline in North Dakota on Tuesday questioned the validity of the testimony of a witness called to the stand by Greenpeace in defense of the environmental protest group’s contributions to delays in finishing the pipeline project on time.
Energy Transfer built the Dakota Access Pipeline about eight years ago amid sometimes violent environmental protests that included vandalism. Energy Transfer filed a lawsuit against Greenpeace in 2019, claiming it funded the protests and coordinated attacks on the pipeline during its construction, delaying the project’s completion. Greenpeace maintains that while it supported the protests, it is committed to non-violence and didn’t incite any harmful behavior, and that the lawsuit is an attack on free speech. Energy Transfer is seeking $300 million in damages. The civil trial began in February.
Tuesday morning, Greenpeace attorneys called Neil Miltonberger to the witness stand. Miltonberger is an engineer and certified cost professional who conducts forensic investigations of contracts. He has testified as an “expert witness” for over 30 years.
A substantial part of the damages Energy Transfer attributes to Greenpeace comes from delays the energy company says were caused by Greenpeace-funded and organized protest activity. According to Legal Newsline, Energy Transfer maintains that Greenpeace funded “their own personnel and Greenpeace-allied protesters such as Indigenous Peoples Power (IP3) and Red Warrior Camp, who committed acts of violence, property damage, and obstruction to pipeline equipment and workers during the fall 2016, over the planned Missouri River crossing upstream from the Standing Rock Sioux Tribe’s reservation.”
Greenpeace hired Miltonberger to perform a forensic analysis of the pipeline’s installation, which was supposed to help identify the root causes of the delays.
Miltonberger said his analysis led him to conclude that the main reason for the project’s delay was a permit the U.S. Army Corps of Engineers didn’t grant for six months longer than anticipated. The pipeline exceeded its original intended full-service start date (Jan. 1, 2017) by five months. Its first day of full service was instead June 1, 2017.
“The plaintiffs expected the Army Corps of Engineers to approve the Lake Oahe easement on Aug. 17, 2016,” Miltonberger testified before the jury Tuesday.
Instead, several departments in the federal government issued a joint statement to Energy Transfer in September denying access to the easement and saying that the Army Corps would be reevaluating some of its permitting decisions that had been challenged by indigenous peoples.
“The Army will not authorize constructing the Dakota Access pipeline on Corps land bordering or under Lake Oahe until it can determine whether it will need to reconsider any of its previous decisions regarding the Lake Oahe site under the National Environmental Policy Act (NEPA) or other federal laws,” the statement read. “Therefore, construction of the pipeline on Army Corps land bordering or under Lake Oahe will not go forward at this time.”
The Army Corps later granted the pipeline access in February 2017.
“The plaintiffs allege a five-month delay,” and an expert witness for Energy Transfer, David Leathers, “was directed to assume the delay was caused by Greenpeace,” Miltonberger said.
Instead, the delay “directly corresponds” to the time the joint statement was issued to when the Army Corps granted access to the easement, according to Miltonberger. Miltonberger also said drilling under Lake Oahe was on the project’s “critical path” to completion and that other items that caused delays could have been completed sooner had that been done.
Miltonberger said it was the easement permit that delayed the pipeline’s completion and not the protests.
But when Miltonberger shared his conclusion on the stand, Energy Transfer objected, noting that his Tuesday testimony contradicted what was in his final report that he was explaining to the jury.
Energy Transfer’s lawyers said they deposed Miltonberger “for hours in Austin” before the trial and that that explicit conclusion that he testified to – that the permit issue caused the delays – didn’t come out in either his deposition or his final report.
District Court Judge James Gion sustained Energy Transfer’s objection.
“You’re not a technical pipeline expert, are you?” asked Energy Transfer attorney Gregg Costa in his cross examination of Miltonberger.
“In fact, you’ve spent the last three-plus decades working as a consultant and expert witness, haven’t you?” Costa said.
Miltonberger affirmed that he has.
Costa also questioned the validity of the report, saying the critical path method Miltonberger used to evaluate the project’s delays wasn’t sufficient to speak to Energy Tranfer’s legal claims against Greenpeace. He also said the report rested on the premise that the party seeking damages can only recover damages if what they’re seeking damages for is determined to be the sole cause of those damages.
“Do you recognize there can be more than one cause” of an event? Costa asked.
Miltonberger maintained throughout questioning that his report was relevant and reliable. He also said he was surprised that, though Energy Transfer had called expert witnesses to testify to the damages caused by vandalism and protests, but no delay analysis had been done.
Miltonberger now works for Vertex, a company that specializes in many of the services he provides and helps clients be both “business-centric” and “environmentally friendly.” It’s committed to a business model that adheres to its environmental, social and governance goals and embraces diversity, equity and inclusion in the workplace.
The trial resumes Wednesday.
