Thursday, March 14, 2013

Shell Offshore, Inc. v. Greenpeace, Inc.

Mar 13: In the U.S. Court of Appeals, Ninth Circuit, Case No. 12-35332. Appeal from the United States District Court for the District of Alaska. Shell Offshore, Inc. and Shell Gulf of Mexico, Inc. (together, Shell) hold multi-year oil and gas leases in the Outer Continental Shelf (OCS), located in the Arctic Ocean off the coast of Alaska. Greenpeace, Inc. (Greenpeace USA) has publicly undertaken a campaign to "stop Shell" from drilling in the Arctic. The district court granted Shell's motion for a preliminary injunction, which prohibited Greenpeace USA from coming within a specified distance of vessels involved in Shell's Arctic OCS exploration and from committing various unlawful and tortious acts against those vessels. Greenpeace USA argues that the action is not justiciable, that the district court lacked subject matter jurisdiction to issue its order, and that the court erred in its application of Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), to the merits of Shell's motion.
    In a partially split decision, where one Justice concurred in part and dissented in part, the majority Appeals Court ruled, "We conclude that the action presents a justiciable case or controversy, that the district court had jurisdiction to issue its order, and that it did not abuse its discretion in doing so. Accordingly, we affirm."
    The majority explains that, "The district court considered the public interest in having Greenpeace USA monitor Shell's Arctic drilling activities. In fact, the court agreed with Greenpeace USA's OCSLA [Outer Continental Shelf Lands Act] argument, stating that 'OCSLA recognizes the important role that environmental organizations such as Greenpeace USA may play in legal proceedings regarding the development of the Outer Continental Shelf.' Shell Offshore, 864 F. Supp. 2d at 852. The court also acknowledged that the injunction could impact 'Greenpeace USA's otherwise legal activities.' Id. It responded by crafting a narrow injunctive order that prohibited only illegal and tortious conduct . . . We cannot say that this treatment of public interest factors constituted an abuse of discretion. The district court did not abuse its discretion in granting Shell's motion for a preliminary injunction, which is amply supported by the record. Consequently, the preliminary injunction order is affirmed."
    The dissenting Justice agreed with the justiciability and jurisdiction conclusions; but said, "I part ways with the majority, however, where it holds that Shell may impute the actions of other independent Greenpeace entities to Greenpeace USA in order to meet Shell's burden of proof. Because I cannot support the imposition of legal sanctions on Greenpeace USA based, in significant part, on the conduct of others that Greenpeace USA does not control, I respectfully dissent."
    Access the complete opinion and dissent (click here). [#Energy/OCS, #CA9]
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