2. ⅓ of the world’s undiscovered oil
reserves reside in the Arctic, due to
climate change these regions are
becoming more accessible:
Greenpeace: Fragile ice and tricky
weather conditions make a spill in
the region more likely; will
negatively affect wildlife and
indigenous populations
Shell: Chukchi Sea is shallow;
further energy security for the US;
prevent other countries from
coming in and drilling
Overview
3. ● 2008 Shell buys Chukchi Sea leases
from US Government
● 2010 Greenpeace direct action against
Shell’s Harvey Explorer vessel
● 2012(Feb) Greenpeace direct action
against Shell’s Noble Discoverer vessel
● 2012(March) Greenpeace direct action
against Shell’s Noridica and Fennica
vessels
● 2012(May) Shell obtains temporary
restraining order and files for a
preliminary injunction in court
Timeline of Events
4. The law recognizes that a party may seek injunctive relief to prevent
threatened illegal or tortious conduct. In order to obtain a preliminary
injunction it must be documented that:
1) The Plaintiff is likely to succeed on merits
2) Is likely to suffer irreparable harm unless an injunction is issued
3) The balance of equities tips in the Plaintiff's favor, and
4) An injunction is in the public interest
2012 Shell Offshore v. Greenpeace:
District Court, D. Alaska
5. Shell Arguments:
● Greenpeace is publicly committed to stopping Shell’s exploration of its Arctic leases
(“Stop Shell” campaign, use of direct action & illegal activity on vessels)
● Illegal or tortious efforts to board or interfere with the vessels would be likely to
“present unacceptable risks to human life, property and environment”
● Balance should tip in favor of Shell: Shell seeks to conduct legally authorized
exploration activities vs. Greenpeace seeks to commit illegal or tortious activities
● The public interest is not disserved by an injunction that precludes illegal or tortious
conduct
6. Greenpeace Arguments:
● Arctic drilling is not a priority issue for Greenpeace; committed to protest peacefully
● Asserts that if they are successful in stopping Shell, it would not cause irreparable
harm; only economic damages due to delaying drilling by one season
● The preliminary injunction, if issued, would impinge on their First Amendment right
to monitor Shell’s activities and engage in other legal activities in protest
● There is a critical public interest (public participation and environmental protection)
that would be injured by the grant of the preliminary relief
● The dispute does not present a justiciable case or controversy
● The district court lacks subject matter jurisdiction
● Shell has sued the wrong Greenpeace entity
8. WHY?
1) The likelihood of success on the merits: Shell submitted persuasive evidence that it is under threat; “stop shell campaign”; website
encourages individuals to protest, endorsed direct action incidents
2) The likelihood of irreparable harm in the absence of preliminary relief:
● Continental Airlines v. Intra Brokers, Inc.: where the threat of injury is imminent and the measure of that injury defies
calculation, damages will not provide a remedy at law
○ Similarly, the court found that if Greenpeace successfully disrupted Shell’s operations, calculating the amount of
economic harm would be very difficult
○ Shell established risks to health and safety constitute the type of irreparable harm for which there is no adequate remedy
at law
3) The balance of equities:
● Madsen v. Women’s Health Ctr., Inc.: if the injunction burdens no more speech than necessary to serve a significant government
interest, it does not offend the First Amendment
● Schenck v. Pro-Choice Network of Western New York: fixed buffer zones on trafficked public sidewalks are constitutional
○ Safety zones surrounding Shell’s vessels are constitutionally permissible, need to carefully tailor injunctive relief to focus
on illegal and tortious conduct, while minimizing impact to Greenpeace’s rights
4) The injunctive relief must be in the public interest: Court concludes that so long as the scope of injunctive relief is narrowly
tailored, than the impact on Greenpeace’s legitimate interests in monitoring and legally protesting Shell’s activities can be minimized
9. Precedence & Theories of Law:
Sociological Jurisprudence: Case used
as a planning tool for future
preliminary injunction lawsuits;
establishes groundwork for how
NGO’s can lawfully protest in future
and how companies can protect
themselves from them; potential
Alaskan bias - the project was the
future of the state’s economy and way
of life
Shields v. Norton: Texas landowner sued the
US Department of Interior and the Sierra Club,
seeking to head off a challenge to his right to
develop his property because it could violate
the Endangered Species Act - case was
dismissed
Westlands Water District v. Natural Resources
Defense Council: A California water authority
preemptively sued an environmental group,
anticipating a legal challenge to a water
allocation decision - case was dismissed
10. ● 2012 Shell postpones drilling to 2013 season, due
to significant issues
● 2013 Greenpeace appeals decision in 9th Circuit
Court of Appeals; original court decision is
AFFIRMED
● 2015(Jan) Shell announced renewed plans to drill
in Chukchi Sea
● 2015(April) Greenpeace direct action against Polar
Pioneer vessel; in response Shell files for
preliminary injunction in District Court Alaska
(granted)
● 2015(July) Greenpeace appeals the injunction;
direct action against Fennica vessel (St. John’s
Bridge protest) - violated the injunction in place, in
response contempt order issued from District
Court Alaska
● 2015(Sept) Shell abandons its drilling efforts!
● 2016 9th Circuit Court of Appeals rules appeal
moot (dismisses case and previous contempt
order)
Current Status
12. Sources:
● To Avoid a Suit, Shell Ask’s Court’s Opinion - The New York Times
http://www.nytimes.com/2012/03/01/business/energy-environment/to-avoid-a-suit-shell-asks-courts-opinion.html
● Shell Files Pre-emptive Lawsuit Over Alaska Drilling - The New York Times
http://www.nytimes.com/2012/03/05/us/shell-files-pre-emptive-lawsuit-over-alaska-drilling.html
● People vs. Shell: The Inside Story - Greenpeace
http://www.greenpeace.org/usa/victories/people-versus-shell-the-inside-story/
● Shell Offshore, Inc. v. Greenpeace, Inc., 709 F. 3d 1281 - Court of Appeals, 9th
Circuit 2013
https://scholar.google.com/scholar_case?case=12614310403567370662&hl=en&as_
sdt=6&as_vis=1&oi=scholarr
● Shell Offshore Inc. v. Greenpeace, Inc., 864 F. Supp. 2d 839 - Dist. Court, D.
Alaska 2012
https://scholar.google.com/scholar_case?case=11563547999507781237&hl=en&as_
sdt=6&as_vis=1&oi=scholarr
Editor's Notes
As the Arctic melts, the oil underneath becomes an increasingly attractive target for the oil industry:
From Greenpeace perspective:
The Arctic plays a critical role in regulating global temperatures and counteracting climate change
Threats to the Arctic are threats to the 4 million people who live there (indigenous groups); depend on this environment for food and resources
The Arctic is home to animals found nowhere else in the world (polar bears, foxes, reindeer and oxen - many of which are endangered)
Long history of oil spills around the world; the only way to prevent this is to keep the oil in the ground
Fragile ice and tricky weather conditions make a spill in the region more likely; U.S. Department of the Interior found that there’s a 75% chance of a major oil spill
From Shell perspective:
The Chukchi is shallow. More than 50% of it is less than 200 feet deep.
The potential amount of crude oil located there. The Arctic, which includes both the Chukchi and Beaufort seas, is estimated to contain at least 20% (~1/3rd) of the world’s undiscovered crude oil and natural gas.That equates to about 34 billion barrels of crude in the U.S. Arctic waters.
Politically driven border disputes (Russia v. US); prevent other countries from coming and drilling off our shores
Further energy security for the U.S. While we are currently enjoying a resurgence in oil production from shale fields, the Energy Information Administration (EIA) estimates total U.S. crude production will fall to 1 million barrels per day by 2040. Only further development of U.S. offshore oil resources will avert that decline. And given how long it takes to explore and develop new offshore oil resources, the time to start is now.
https://www.youtube.com/watch?v=7t7fH0vTfAI
Expansion on what #1 means: Prove that the ‘injury’ is concrete and particularized; the threat must be actual and imminent; must be fairly traceable to the challenged action of the defendant; must be likely that a favorable judicial decision will prevent or redress the injury
Expansion of what #4 means: Court must consider whether there exists some critical public interest that would be injured by the grant of preliminary relief
Justiciable(subject to trial in a court of law) case: Shell failed to state any viable cause of action against it
Lacks subject matter jurisdiction: A district court may not grant a preliminary injunction if it lacks subject matter jurisdiction over the claim before it - Greenpeace claims since Shell is looking to protect the passage of their vessels and that they pass through the Exclusive Economic Zone(international waters), that the District Court should only be able to oversee landbased vessels or vessels attached to the seabed.
Wrong Greenpeace entity: Greenpeace USA was not directly involved in any prior attacks on Shell vessels
Preliminary injunction effective until October 31, 2012 (last day of drilling season)
Applied to Greenpeace USA as well as its agents, servants, employees, members and affiliates, and all others acting in concert or participation with Greenpeace, Inc.
Established safety zones around each of Shell’s vessels (while stationary and in transit)
Greenpeace enjoined from:
Breaking into or trespassing on the 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
Tortiously or illegally endangering or threatening any employee, contractor or visitor of Shell or any affiliates
Reasoning of the Court:
1) The likelihood of success on the merits:
Shell submitted persuasive evidence that it is under threat; “stop shell campaign”; website encourages individuals to protest, endorsed direct action incidents
2) The likelihood of irreparable harm in the absence of preliminary relief:
Continental Airlines v. Intra Brokers, Inc.: where the threat of injury is imminent and the measure of that injury defies calculation, damages will not provide a remedy at law
Similarly, the court found that if Greenpeace successfully disrupted Shell’s operations, calculating the amount of economic harm would be very difficult
Shell established risks to health and safety constitute the type of irreparable harm for which there is no adequate remedy at law
3) The balance of equities:
Madsen v. Women’s Health Ctr., Inc.: if the injunction burdens no more speech than necessary to serve a significant government interest, it does not offend the First Amendment
Schenck v. Pro-Choice Network of Western New York: fixed buffer zones on trafficked public sidewalks are constitutional
Safety zones surrounding Shell’s vessels are constitutionally permissible, need to carefully tailor injunctive relief to focus on illegal and tortious conduct, while minimizing impact to Greenpeace’s rights
4) The injunctive relief must be in the public interest:
Court concludes that so long as the scope of injunctive relief is narrowly tailored, then the impact on Greenpeace’s legitimate interests in monitoring and legally protesting Shell’s activities can be minimized
Cases were dismissed because people could not provide evidence for the need for it.
Alaska State Courts Bias: This project was the future of Alaska’s Economy and way of life.
Regulations between 2012 Season and 2015 were for more stringent due to Greenpeace's efforts
Shell suspended all Arctic Operations due lack of commercially producible hydrocarbons
Court of appeals (9th District Court) ruled that the Department of the Interior violated the law when it sold offshore oil and gas leases in the Chukchi Sea off the coast of Alaska. The decision stems from a lawsuit filed by a coalition of Alaska Native and conservation groups made up of: the Native Village of Point Hope, Inupiat Community of the Arctic Slope, Alaska Wilderness League, Center for Biological Diversity, Defenders of Wildlife, National Audubon Society, Natural Resources Defense Council, Northern Alaska Environmental Center, Oceana, Pacific Environment, Resisting Environmental Destruction on Indigenous Lands (REDOIL), Sierra Club, The Wilderness Society, and World Wildlife Fund. Earthjustice, a nonprofit environmental law organization, represented the groups. “This decision confirms that it made no sense at all for the Bush administration to lease the Chukchi Sea to the oil industry when we know next to nothing about how that activity will impact those waters and its marine life, as well as the people who have relied on the Chukchi Sea for thousands of years as their ‘garden,’” said Cindy Shogan, Executive Director, Alaska Wilderness League. “Rather than risking a Deepwater Horizon-like disaster in the Arctic by Shell Oil or other leaseholders, the Obama administration should recognize the unique challenges of drilling in the Arctic, including the risks associated with climate change, the lack of scientific data and knowledge about the Arctic, as well as the lack of technology and means to clean up a spill in its often harsh and chaotic conditions. For all of these reasons we should leave the Chukchi Sea free of oil rigs."
The Bureau of Ocean Energy Management conducted a rushed and cursory review of Shell’s plan that inadequately assessed its threats and effects. Shell’s approved exploration plan is even bigger, dirtier, and louder than 2012, including the use of two drilling rigs in a concentrated area and a bigger armada of vessels, all posing a threat to wildlife including whales, walruses and seals, as well as air and water pollution discharges. Drilling in the Arctic is already a high risk proposition with a high potential for a disastrous oil spill in icy, harsh and remote conditions, which all agree couldn’t be cleaned up.
