Wednesday, March 13, 2013
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Ninth Circuit Upholds Injunction for Shell Against Greenpeace
By KENNETH OFGANG, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday upheld an injunction barring Greenpeace USA from interfering with Shell Oil’s drilling in the Arctic Ocean.
A divided panel said a district judge in Alaska did not abuse his discretion in prohibiting Greenpeace from coming within a specified distance of Shell’s vessels and from tortiously interfering with their activities.
The injunction bars Greenpeace or anyone acting in concert with the environmental group from breaking into or trespassing on Shell’s vessels; tortiously or illegally interfering with the operation, movement or progress of the vessels; barricading, blocking or preventing access to or egress from the vessels; or tortiously or illegally endangering or threatening any employee, contractor or visitor of Shell or any of its affiliates who is present on, or as they enter or exit, the vessels.
In upholding the injunction, Senior Judge A. Wallace Tashima wrote:
“There is evidence that Greenpeace USA and its counterparts around the globe are united in the goal of stopping Shell. When Greenpeace activists forcibly boarded an oil rig off the coast of Greenland in 2010 and used their bodies to impede a drilling operation, Greenpeace USA’s executive director described their conduct as ‘bold non-violent direct action’ by ‘our activists.”’ Greenpeace USA similarly endorsed the forcible boarding of a Shell vessel by Greenpeace New Zealand activists in February 2012, again referring to them as ‘our brave activists.’”
New Zealand Action
In the February 2012 action, Tashima noted, Greenpeace New Zealand members equipped with survival gear scaled a 53-meter drilling tower, secured themselves to the rig, unfurled “Stop Shell” banners, and remained for four days until they were arrested. In other actions cited by the judge, Greenpeace activists boarded and occupied a pair of Shell “icebreaker” support vessels in a Finnish port, then boarded one of those vessels again a few months later as it transited through Scandinavian waters and created a human blockade using divers.
Tashima rejected Greenpeace USA’s ripeness challenge to the injunction, saying the limited window in which drilling leases may be exploited establishes the irreparable nature of the harm that will result if the activities continue. And while the injunction expired at the close of last year’s “drilling window,” the judge said, the multi-year duration of the leases and the likelihood that Greenpeace still wants to “Stop Shell” and is willing to go to great lengths to do so justify the invocation of the “capable of repetition” exception to mootness.
Sufficient Involvement
The fact that Greenpeace USA was not directly involved in the actions cited by the district judge does not preclude it from being enjoined from engaging in similar tactics in the future, Tashima went on to say. He cited evidence that Greenpeace USA activists were involved in the boarding of a Shell contract vessel in May 2010 in the Gulf of Mexico, as well as the willingness of Greenpeace USA leaders to associate themselves with the New Zealand and Scandinavian actions.
Chief Judge Alex Kozinski joined in the opinion.
Judge Milan D. Smith Jr. dissented in part. He agreed that the case was justiciable, but argued that Greenpeace USA could not be held responsible for the actions of other Greenpeace entities, absent a showing that it “significantly coordinated with, encouraged, or controlled the actions of those groups.” The mere encouragement of illegal acts, he insisted, could not support the grant of injunctive relief.
The case is Shell Offshore, Inc. v. Greenpeace, Inc., 12-35332.
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