Friday, March 2, 2012

Pre-emptive action; Shell requests Greenpeace restraining order & judgment on Chukchi plan

Alan Bailey
Petroleum News

Breaking News: As Petroleum News was headed to press on March 1, the federal District Court in Alaska issued a temporary restraining order, forbidding Greenpeace from breaking into or trespassing on the drilling vessels Noble Discover and Kulluk. The order will last for 14 days, until a court hearing on March 14, after which the court will decide on whether to issue an injunction against Greenpeace and what the scope of that injunction will be.

With several of Shell’s permits for drilling in Alaska’s Chukchi and Beaufort seas this summer slotting into place, the company has started taking some pre-emptive court action to head off last minute challenges by organizations opposed to Arctic offshore oil and gas exploration. Shell spokesman Curtis Smith has told Petroleum News that the company does plan to drill in the Alaska Arctic offshore this year unless prohibited from doing so by a federal agency or by court action.

Restraining order
On Feb. 24 the company asked the federal District Court in Alaska to issue a restraining order that would prohibit environmental organization Greenpeace from taking physical action against Shell’s vessels, facilities and properties in a U.S. port or within offshore areas under U.S. jurisdiction.

In February a group of Greenpeace activists, including actress Lucy Lawless, occupied the drillship Noble Discoverer in harbor in New Zealand, to try to prevent the drillship from leaving New Zealand for Alaska for Shell’s planned drilling program. Greenpeace and other environmental organizations say that drilling for oil in the Arctic offshore presents an unacceptably high risk to the Arctic offshore environment. Shell and U.S. federal regulators have said that Shell’s oil spill prevention measures and oil spill contingency arrangements are sufficient to prevent an Arctic offshore environmental disaster during drilling operations.

And Shell has already spent upwards of $4 billion on its Alaska Arctic offshore exploration venture, including the purchase of leases in federal lease sales in the Beaufort and Chukchi Seas.

“Greenpeace has embarked on an international campaign against Shell and Shell’s U.S. OCS assets,” wrote attorney Jeffrey Leppo in Shell’s request to the District Court. “Greenpeace intends to disrupt, delay and if possible prevent Shell from conducting exploration drilling in the Arctic Ocean OCS in 2102 by committing on-the-water or nearshore acts of trespass and nuisance.”

District Court Judge Sharon Gleeson issued a summons to Greenpeace, requiring a response to Shell’s complaint. And on Feb. 29 the judge held a hearing in the case.

Spill response plan
Also on Feb. 29 Shell took the unusual move of filing an action against 13 environmental organizations, asking the court to declare that the Bureau of Safety and Environmental Enforcement, or BSEE, had properly approved Shell oil spill response plan for the Chukchi Sea.

“This pre-emptive action is an attempt to avoid challenges on the eve of summer drilling operations by organizations that have historically used last-minute legal maneuvers to delay properly approved operations,” Smith told Petroleum News in a Feb. 29 email.

BSEE approved Shell’s response plan on Feb. 17.

In its request to the court Shell says that a legal challenge by environmental organizations against its spill response plan “is virtually a certainty.”

“It is the consistent practice of these defendants to bring their judicial challenges, using the potential for litigation-related delay as a tactic in their publicly-stated attempt to block all oil and gas exploration on the Alaska OCS,” wrote attorney Kyle Parker in Shell’s court filing.

The filing lists statements by various environmental organizations claiming that Shell’s response plan is inadequate and implying the threat of legal action against the BSEE plan approval. The organizations have a “consistent practice of waiting to the last possible date before filing their judicial challenges,” the filing said.

Shell has asked the court for a “declaratory judgment” that the approval of the Chukchi Sea response plan by BSEE was not “arbitrary, capricious, an abuse of discretion, or otherwise in violation of the law.” In general, when an agency decision is appealed to the courts, a court will defer to agency expertise in the technical basis for the decision but will rule on whether the decision was made in a legally defensible manner, following required legal protocols and meeting the requirements of applicable statutes.