Judge extends TRO after hearing on Greenpeace injunction
Shell’s court battle to obtain a preliminary injunction against Greenpeace USA continued in U.S. District Court Judge Sharon Gleason’s court in Anchorage April 28.
Gleason is considering whether to issue an order that would keep Greenpeace protestors at a certain distance from vessels Shell hopes to use for its 2015 Arctic offshore drilling.
After the hearing, Gleason extended the temporary restraining order against Greenpeace covering two drill rigs and a heavy lift vessel; that order issued April 11 expired April 28 and she extended it to May 9 or until she rules on Shell’s request for an injunction that would cover all 27 vessels being mobilized for its Arctic exploration this summer.
The company is asking for a court-ordered safety zone of 1,000 meters while vessels are en route, and a 1,500-meter safety zone while drill ships are anchored in the Chukchi Sea and support vessels are maneuvering in the area to move anchors and perform other support tasks.
Greenpeace is opposing Shell’s request, arguing that a 500-meter safety zone that the U.S. Coast Guard has authority to impose is sufficient for safety and that a larger exclusion zone would prevent the environmental organization from carrying out its core mission of observing and monitoring companies like Shell.
“Shell is not entitled to a preliminary injunction. The events of 2012 following the last preliminary injunction dramatically demonstrate why Shell should not be given the 1,000-meter ‘safety zone’. Shell’s 2012 season was marred by a series of grave errors, mishaps and poor judgment that vividly illustrate the risks of a massive oil spill in an area of the world where containment and cleanup may well be impossible,” Greenpeace wrote in its opposing brief.
The environmental organization relies on being able to monitor, protest and photograph actions like Shell’s Arctic drilling operation to pursue its core mission of raising public awareness, the brief stated.
For its part, Shell said it has more evidence now than in 2012 that Greenpeace intends to create obstructions.
“Not only has Greenpeace USA’s Executive Director threatened to do ‘special things’ to Shell with vessels, but Greenpeace USA also sent one its own employees to follow through on those threats,” Shell argued, referring to the mid-Pacific boarding of the Shell-chartered Polar Pioneer drill rig by six Greenpeace activists while it was in transit aboard the heavy lift vessel Blue Marlin.
Greenpeace activists boarded and then left the Polar Pioneer after six days, a couple hours before Gleason issued a temporary restraining order against Greenpeace April 11.
The Coast Guard has already established a 500-meter safety zone around several Shell-chartered vessels now in Puget Sound ports.
Seattle attorney Jeff Leppo, representing Shell, said what the company is seeking for 2015 is similar to what was granted by a federal court in 2012, when Shell last explored in the Arctic. Greenpeace challenged it then, too, but was unsuccessful.
Leppo said the Coast Guard’s 500-meter zones are intended mainly to ensure that waterways are kept safe for general marine traffic and apply to all and are not aimed at particular parties.
David George, Shell’s safety expert, said the Coast Guard’s safety zones are helpful but they are, “for the express purpose of safely balancing marine traffic in these areas by all water users, and address the maintenance of orderly marine traffic.”
“The Coast Guard safety zones are not developed to address the risks posed by intentional and unlawful actions directed to specific vessels,” George said in a brief filed in the court.
Shell’s request for a larger zone is narrowly aimed at Greenpeace USA and parties affiliated with it because of Greenpeace’s announced intention to try to interfere with Shell’s activities and the recent action of six protesters boarding the Blue Marlin.
The protesters ended their occupation of the ship when it neared U.S. territorial waters but Shell is still inspecting the semi-submersible Polar Pioneer to see if any damage was inflicted during the occupation, George said April 28 in the hearing in Gleason’s court.
Greenpeace attorney Matthew Pawa, from Newton Center, Maine, said the large exclusion zone is unnecessary, that the responsibility for this should be left to the Coast Guard, and that an expanded exclusion zone will have the effect of chilling the First Amendment rights of Greenpeace supporters and others who oppose Arctic drilling.
George said that 500 meters is too small a safety zone for a large vessel like the Polar Pioneer when it is under tow or on station while drilling.
“This vessel is 400 feet by 300 feet and weighs 32,000 tons. Your ability to maneuver (to avoid obstacles) is limited. You need time and space. It’s not like a smaller vessel,” George told Gleason.
“If I were a captain on a vessels being shadowed by the Esperza (the Greenpeace vessel) 500 meters off by starboard side, it would be cause for serious concern. There is a small margin for error,” in such situations, George said.
The anti-collision guidelines used by mariners require, first, the use of prudent judgment.
“Five hundred yards is not prudent,” George said.
Shell has asked for Greenpeace to be restrained from coming within 1,000 meters of a vessel underway, and 1,500 meters in the Chukchi Sea because of the extended length of anchor chains.
While the Polar Pioneer and another Shell drill vessel, the Noble Discoverer, are drilling, they must be securely anchored to the sea floor, but the anchors must constantly be tended by large anchor-handling vessels because they can slip on the sea floor and must be put back in position.
To do this there is constant maneuvering of vessels around the drillships. To have the Greenpeace ship Esperanza also moving around within this zone presents a safety problem not only for Shell’s chartered vessels but also the Greenpeace ship, George said.
“The Esperanza is an older ship,” with less speed and maneuverability, he said.
Pawa, arguing for Greenpeace, said the organization must be able to be close to Shell’s vessels to properly observe them. Many things did not go as planned for Shell in 2012, and there were criminal violations of federal safety and environmental rules by Shell’s contractors. The public deserves the right to more closely monitor the company in 2015, he argued.
“In 2012, just as Shell was in this court arguing that Greenpeace was illegally obstructing the company, the drillship Noble Discoverer was en route from New Zealand and was illegally disposing wastes overboard and then falsifying records,” Pawa said.
Coast Guard inspectors ultimately discovered that and Noble Drilling, the vessel owner, plead guilty to a series of federal charges and were hit with $12.2 million in fines.
Based on that record, Pawa said, “My client wants to be able to observe, to go out in 2015 to monitor and document,” Shell’s activities.
Shell is asking that the preliminary injunction, if it is issued, be extended to 27 support vessels the company has contracted for the 2015 season. Fifteen vessels are now in various Pacific Northwest ports while others are still en route to the Northwest.