Appeals court upholds right of ships not to be thwarted by eco-warriors
DECIDING where free speech ends and illegal obstruction begins divided judges at the US Court of Appeals ruling on upholding an injunction brought by Shell Offshore against Greenpeace USA over its protests against Arctic oil exploration off Alaska.
The Los Angeles-based US Ninth Circuit Court of Appeals court upheld an earlier a district injunction prohibiting Greenpeace activists from coming within a specified distance of vessels to prevent wrongful acts its affiliates had done before, reported New York's Maritime Advocate.
Said the court: "We conclude that, in light of the serious risk to human life and property posed by the conduct that the preliminary injunction enjoins, the district court did not abuse its discretion."
But dissenting Judge Milan Smith said: "I part ways with the majority because I cannot support the imposition of legal sanctions on Greenpeace USA based on the conduct of others that Greenpeace USA does not control."
But the majority ruling pointed out that Greenpeace USA did not dispute evidence that its own activists carried out the attack on Shell's Harvey Explorer, though arguing that was irrelevant because it happened in the Gulf of Mexico and not the Arctic.
"Greenpeace USA's arguments are hazy," said the ruling, "but appear to challenge Shell's standing to sue."
Under the rules, an injunction requires an injury that is actual or imminent, not conjectural or hypothetical. "In the context of injunctive relief, the plaintiff must demonstrate a real or immediate threat of irreparable injury," the appeals court noted.
But the court accepted Shell's position that if Greenpeace were able to thwart its operations, it would have caused them material expense, risk of injury, as well as missing the short Arctic exploration season.
Greenpeace did not challenge Shell's evidence that its affiliates in New Zealand and Finland were responsible for acts they were enjoined not to commit.
In response the court said: "Shell does not need to show past injury by Greenpeace USA to succeed with a preliminary injunction. Requiring an actual injury would defeat the purpose of the preliminary injunction, which is to prevent an injury from occurring," the court said.
"Although the record does not make clear which Greenpeace entity was directly responsible for multiple attacks on Cairn Energy vessels in the Arctic Ocean, Greenpeace USA's executive director took credit for it, describing the perpetrators as 'our activists' and boasting that as a result of this direct action, 'Cairn didn't find oil in 2010'," the court said.
Shell has an interest in conducting legally authorised exploration of its Arctic leases without dangerous interference from Greenpeace USA.
On claims to right of free speech, the court said: "Greenpeace USA argues that this is an undue speech restriction, [that] the injunction imposes safety zones around Shell vessels that prevent Greenpeace USA from exercising its rights close to those vessels.
"We disagree. The safety zones do not prevent Greenpeace USA from communicating with its audience because, as the district court observed, Greenpeace USA has no audience at sea. Greenpeace USA's reliance on Schenck [vs Pro Choice] and its discussion of abortion clinics are misplaced. Speech is, of course, most protected in such quintessential public fora such as public sidewalks surrounding abortion clinics, but the high seas are not a public forum", said the ruling.
DECIDING where free speech ends and illegal obstruction begins divided judges at the US Court of Appeals ruling on upholding an injunction brought by Shell Offshore against Greenpeace USA over its protests against Arctic oil exploration off Alaska.
The Los Angeles-based US Ninth Circuit Court of Appeals court upheld an earlier a district injunction prohibiting Greenpeace activists from coming within a specified distance of vessels to prevent wrongful acts its affiliates had done before, reported New York's Maritime Advocate.
Said the court: "We conclude that, in light of the serious risk to human life and property posed by the conduct that the preliminary injunction enjoins, the district court did not abuse its discretion."
But dissenting Judge Milan Smith said: "I part ways with the majority because I cannot support the imposition of legal sanctions on Greenpeace USA based on the conduct of others that Greenpeace USA does not control."
But the majority ruling pointed out that Greenpeace USA did not dispute evidence that its own activists carried out the attack on Shell's Harvey Explorer, though arguing that was irrelevant because it happened in the Gulf of Mexico and not the Arctic.
"Greenpeace USA's arguments are hazy," said the ruling, "but appear to challenge Shell's standing to sue."
Under the rules, an injunction requires an injury that is actual or imminent, not conjectural or hypothetical. "In the context of injunctive relief, the plaintiff must demonstrate a real or immediate threat of irreparable injury," the appeals court noted.
But the court accepted Shell's position that if Greenpeace were able to thwart its operations, it would have caused them material expense, risk of injury, as well as missing the short Arctic exploration season.
Greenpeace did not challenge Shell's evidence that its affiliates in New Zealand and Finland were responsible for acts they were enjoined not to commit.
In response the court said: "Shell does not need to show past injury by Greenpeace USA to succeed with a preliminary injunction. Requiring an actual injury would defeat the purpose of the preliminary injunction, which is to prevent an injury from occurring," the court said.
"Although the record does not make clear which Greenpeace entity was directly responsible for multiple attacks on Cairn Energy vessels in the Arctic Ocean, Greenpeace USA's executive director took credit for it, describing the perpetrators as 'our activists' and boasting that as a result of this direct action, 'Cairn didn't find oil in 2010'," the court said.
Shell has an interest in conducting legally authorised exploration of its Arctic leases without dangerous interference from Greenpeace USA.
On claims to right of free speech, the court said: "Greenpeace USA argues that this is an undue speech restriction, [that] the injunction imposes safety zones around Shell vessels that prevent Greenpeace USA from exercising its rights close to those vessels.
"We disagree. The safety zones do not prevent Greenpeace USA from communicating with its audience because, as the district court observed, Greenpeace USA has no audience at sea. Greenpeace USA's reliance on Schenck [vs Pro Choice] and its discussion of abortion clinics are misplaced. Speech is, of course, most protected in such quintessential public fora such as public sidewalks surrounding abortion clinics, but the high seas are not a public forum", said the ruling.