Are the six international Greenpeace activists who boarded a Shell drilling ship on the high seas dissidents committing a courageous act of civil disobedience? Are they dangerous nuisances who must be stopped before they cause irreparable damage? And what business does a U.S. court have in stopping them? A judge in Alaska is grappling with these questions and deciding what she can and should do about the Polar Pioneer, which is steaming toward Washington State, en route to the Arctic Ocean to begin highly controversial drilling operations.
Shell has asked the federal court in Alaska to order the activists off the rig and ban them from approaching any of its vessels or structures in the U.S., on U.S. waters, or on the high seas. According to Shell, Greenpeace activists have a track record of causing accidents and getting in the way of safe navigation. But Shell has a problem: the activists are not under the control of Greenpeace USA, most aren’t American, and the ship they’ve boarded is outside U.S. jurisdiction and flies the flag of a foreign country. In the Kiobel case in front of the Supreme Court a few years back, Shell argued that U.S. courts shouldn’t be able to apply U.S. law to cases between foreigners outside the frontiers of the United States.
So why now should a U.S. court have the power to stop foreign citizens from boarding a foreign ship in foreign waters?
Greenpeace, on the other hand, argues that its activists are highly trained sailors who know how to avoid accidents. They’re in touch with the crew of the ship they boarded and have promised abandon the mission if there are any safety issues. Meanwhile, they’re doing something incredibly important: monitoring and protesting a ship that is trying to conduct one of the most potentially destructive activities on the planet. Arctic oil drilling is energy intensive, risky, and highly experimental. Both the U.S. government and Shell recognize that spills in the pristine but challenging Arctic ecosystem are likely, and that there’s no realistic failsafe plan for containing spilled oil in case of emergency. But Greenpeace has a problem too: no matter how important its activities are, and no matter how careful it is not to cause accidents, its activists are still boarding a ship that doesn’t belong to them, without permission. Whether or not that is morally right, it’s technically illegal.
Enter Judge Sharon Gleason of the United District Court in Alaska, who has tremendous leeway to grant or deny Shell’s request to stop the activists from boarding the ships. This kind of request is subject to a test called “balancing the equities,” which means that in addition to determining whether Shell would be likely to win a lawsuit, she has to balance all the interest in the case – Shell’s interest in keeping the protesters out, Greenpeace’s interest in protesting and monitoring, and the general interests of the public. Even if she finds that Greenpeace is trespassing or breaking other laws, Gleason could deny the injunction if she thinks the interests Greenpeace is serving are substantial enough.
So how’s the fight shaking out so far? In Round One – the argument for a temporary restraining order (TRO), which is a sort of emergency injunction that a court can apply while both sides get ready for a full hearing – Shell scored a partial victory. The judge granted a TRO that stops Greenpeace USA, its employees, and any others working “in concert” with Greenpeace, from approaching the three Shell ships that have been directly involved in the protest.
It’s not really clear what effect this TRO will have. The Greenpeace activists had already left the ship they’d boarded just a few hours before the TRO was issued because of high waves. (Just as they’d promised, they vacated the ship at the first sign that it would be dangerous for them to stay.) Based on the way she limited her order, Judge Gleason must have realized that her power on the high seas only reaches Americans and those working with them. But since most of the activists weren’t even Americans and were working with Greenpeace International (a Dutch organization) instead of Greenpeace USA, the TRO arguably didn’t apply to them anyway. They could have just ignored it.
In weighing the interests of both sides, the judge recognizes the importance of Greenpeace’s mission to monitor and protest oil drilling, alongside Shell’s interest in conducting oil exploration. So far, so good. But when she gets to the public interest, she only mentions the public interest in “orderly” oil production in waters off the United States and “safe navigation” on the high seas. When you put it that way, of course Shell’s interest is going to win out. Too bad Judge Gleason didn’t also mention the public interest in preventing climate change and preserving the Arctic. Maybe those would have been weighty enough public interests to counter Shell’s desire to keep protesters away from its drilling rigs.