(CN) - The 9th Circuit seems likely to overturn an order that bars Greenpeace USA from barricading Shell vessels off the Alaskan coast in protest of Arctic oil drilling.
Greenpeace says Shell obtained the injunction based on hypothetical actions that the activists "might" take.
The group also argues that Shell won its injunctive by citing the destructive protests of other Greenpeace entities, not Greenpeace USA.
Shell sued the Greenpeace in February, asking the court to impose a "safety zone" between 500 and 1,000 meters around its Arctic oil drilling ships and equipment. Shell also wanted to stop activists from blockading Shell's vessels or facilities, boarding its ships, and threatening its employees.
U.S. District Judge Sharon Gleason in Anchorage, Alaska, granted an injunction, finding that Shell would suffer irreparable harm "if Greenpeace USA activists were to attempt actions similar to those undertaken by other Greenpeace activists in New Zealand, Finland, or off the coast of Greenland."
But Greenpeace attorney Mike Moberly told a three-judge appellate panel on Tuesday that the group's USA subsidiary does not have a history of violence.
Moberly said Shell had "absolutely" served the wrong party.
To obtain an injunction, there had to be something the defendant had done in the past that constitutes a threat, Moberly said. Given Greenpeace USA's past conduct, it was "highly unlikely" Shell would suffer any harm without the injunction, he added.
Shell's attorney, Jeff Leppo, disagreed, saying that Greenpeace USA belongs to a "fine web" with the other Greenpeace groups operating "under one framework."
Leppo said that there is a requirement that Greenpeace USA contribute a percentage of its revenue to Greenpeace International and that the entities participate in together in "strategic planning."
Judge Milan Smith said that the lower court had improperly attributed statements from a number of entities, including Greenpeace New Zealand, to Greenpeace USA.
"I don't see the connection," Smith said.
Leppo said the record showed Greenpeace USA had engaged in past actions in Alaska, including placing activists in the way of moving oil machinery.
Smith interrupted as the lawyer described a perceived threat from Greenpeace USA's campaign "Stop Shell."
"Wait a minute," Smith said. "I know a little bit about the First Amendment, and the First Amendment doesn't say that just stating 'Stop Shell' is a threat."
Leppo replied: "It all depends on the context."
Smith countered: "You could write a play about that. It could be a musical - you could have dancers. You could have all sorts of things - dancing shells across the stage."
Chief Judge Alex Kozinski chimed in: "You could call it the Book of Shell."
A flustered Leppo replied, "That's not what happened here."
The activists did not make "idle threats," he said, adding that the group conducts confrontational direct action, and targeted Shell.
Still unconvinced, Smith said that Shell had "thousands" of corporate entities and that it would never treat them as one entity for liability purposes.
"But you are making that argument" against Greenpeace, Smith said.
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