Arctic Drilling Debate Returns to 9th Circuit

     PASADENA, Calif. (CN) – Greenpeace on Tuesday sought to overturn a court order barring it from disrupting Shell’s Arctic oil program, a day after the oil giant received a permit to drill in the region.
     In May, a federal judge in Anchorage, Alaska issued an injunction that creates so-called “safety zones” preventing the environmental activists from coming within 500 to 1500 feet of Shell’s vessels.
     The order came in response to a lawsuit Shell filed suit on April 7, one day after Greenpeace boarded a vessel roughly 750 miles northwest of Hawaii that was carrying a drilling rig bound for Seattle.
     Then on Monday, the Obama administration granted a final permit allowing Shell to drill this summer in a region experts believe holds up to 13 percent of the world’s oil reserves.
     But conservationists are concerned that a large oil spill could cause a devastating environmental disaster in the pristine polar region.
     Greenpeace appealed U.S. District Judge Sharon Gleason’s order creating the safety zones but faces an uphill battle in the Ninth Circuit, which upheld a similar injunction after Shell sued the group in 2012.
     Greenpeace’s attorney Matthew Pawa argued Tuesday morning that the group has a better chance of winning this time because Shell does not own the vessels and cannot make a valid claim of trespass.
     “It’s undisputed on this record, Shell does not own any of the boats,” Pawa told the three-judge panel.
     Pawa said that he questioned a Shell witness on that point, asking him if a captain on one of the boats would call Shell in the event of an emergency. He told the court that the witness had said no.
     “It’s undisputed on this record that Shell does not navigate [the vessels] anymore than if I were to hire a courier to go across town to Santa Monica and pick up a package. I’m not driving,” Pawa said.
     Circuit Judge Alex Kozinski, a Ronald Reagan appointee, said he had “no idea” what point the attorney was trying to make.
     “What does that prove? I mean, presumably if you have an emergency on board the skipper will do what’s necessary. He won’t call the owner of the vessel, right?” Kozinski said.
     Pawa tried to explain that Shell did not have standing to bring the suit. But Kozinski shot the argument down.
     “If you’re an airline pilot, you’re flying an airplane, you have an emergency, you’re about to collide with another airplane or you have a drop in pressure – do they call American Airlines and say, ‘What do I do?’ The guy in charge of the vessel deals with the emergency. He wouldn’t call anybody,” Kozinski said.
     Shell’s attorney Jeffrey Leppo said the oil company had established “constructive possession” of the vessels.
     “The fact that these [vessels] are under contract is entirely a red herring,” Leppo said. “As the evidence demonstrated in the case, and as the district court held, Shell sets the mission of these vessels, it tells them what to do, where to go, when to do it. It informs them on how to replenish their supplies and it is in day-to-day control of these vessels.”
     Circuit Judge Wallace Tashima asked Leppo about part of the court order that restricts Greenpeace USA’s use of drones in the area of the Chukchi Sea where Shell will drill.
     “What was the evidence that you based that request for the drone provision?” the Bill Clinton appointee asked.
     Leppo said Shell believes the group intends to use a drone in the Arctic.
     “The greatest risk to human life in the Arctic is in the transport of folks by helicopter from the coast and back,” Leppo said. “And so the potential for a problem with a drone in the area – one that is unmarked, that hasn’t been coordinated with anyone else – would lead to fatalities,” Leppo said.
     But during rebuttal, Pawa said the court had based the drone provision on Greenpeace’s use of a balloon during a protest.
     “My very clear memory of the evidence was that Greenpeace had a balloon on a string that said something like ‘Stop Shell,’ and they were holding it up in an urban area and talking to drivers who went by. That was evidence of drones. It was not anything that was happening out on the high seas or what you would normally think of as drone,” Pawa said.
     Pawa said the court order prevents Greenpeace from raising public awareness of Shell’s drilling activities.
     “The evidence in this case was undisputed that it would make Greenpeace’s work close to impossible,” Pawa said. “They create these iconic images, as they did with the Save the Whales campaign, where they get right up close to the ships. And those iconic images define who Greenpeace is, and have motivated in the past the American people.”
     Circuit Judge Milan Smith, a George W. Bush appointee, wondered why Greenpeace could not capture those images with zoom lenses.
     “How can you say that they could not take pictures to make the representations you want under the First Amendment?” Smith asked.
     “Because it’s not that the photography equipment won’t reach, Judge Smith. It’s that there’s nobody in the foreground holding the Greenpeace banner saying, ‘This is wrong. We object,'” Pawa said.
     The panel took the case under submission but did not indicate when they will rule.
     On Monday, the Bureau of Safety and Environmental Enforcement said it had granted Shell a permit to drill because it was satisfied the oil company would take a “rigorous” approach to safety.
     “Activities conducted offshore Alaska are being held to the highest safety, environmental protection, and emergency response standards,” said BSEE director Brian Salerno. “We will continue to monitor their work around the clock to ensure the utmost safety and environmental stewardship.”
     But presidential candidate Hillary Clinton criticized the Obama administration’s move.
     “The Arctic is a unique treasure” Clinton wrote on Twitter. “Given what we know, it’s not worth the risk of drilling.”
     On its website, Greenpeace said the Obama administration had approved Shell’s program despite “overwhelming global public opposition and the obvious risks to Arctic communities, wildlife, and our climate.”
     In a statement, Greenpeace USA executive director Annie Leonard said: “The president cannot have it both ways. Announcing a tour of Alaska to highlight climate change days before giving Shell the final approval to drill in the Arctic Ocean is deeply hypocritical.”
     Shell has spent $7 billion on the Arctic drilling program, according to Greenpeace. In a brief to the court it accused the oil company of using the court injunction to bully its opponents.
     “Shell, a corporation of limitless resources that already has spent $7 billion on its goal of drilling for oil in a pristine wilderness, has taken this worldwide injunction and run with it – delivering copies of the injunction to Greenpeace entities worldwide in a speech-chilling global use of U.S. federal court power,” Pawa wrote in a June 11 court filing.

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