Proceedings magazine is a communication tool for the Coast Guard's Marine Safety & Security Council. Each quarterly magazine focuses on a specific theme of interest to the marine industry.
Issue link: https://uscgproceedings.epubxp.com/i/149372
Arctic Litigation On February 24, 2012, in a frst-of-itskind preemptive strike, Shell sued Greenpeace (and other environmental non-governmental organizations) to prevent interference with the movement and operations of Shell's vessels.1 Shell's suit alleged violations of international and domestic law concepts of nuisance, trespass, false imprisonment, violation of a proposed safety zone, piracy, and freedom of navigation. Shell's theory was premised on Greenpeace's interference with a Shellcontracted drillship's transit in New Zealand,2 and that it would be highly likely that these groups attempt similar interference as Shell's mobile ofshore drilling unit transited north to the Arctic. Shell asked the court to grant a temporary restraining order to protect its vessels by enjoining Greenpeace from trespassing on or interfering with Shell vessels on the territorial seas or the exclusive economic zone of the United States. In March 2012, the Alaska Federal District Court found that Shell was likely to succeed on the merits of its action, and that irreparable harm would occur should the court not issue a temporary restraining order preventing Greenpeace et al. from engaging in certain conduct. The Coast Guard retains significant authority outside of the U.S. territorial seas and within the exclusive economic zone to take actions in order to protect the nation's natural resources. Pursuant to the Outer Continental Shelf Lands 44 Proceedings Act, the Coast Guard promulgated regulations to create a temporary safety zone around Shell's mobile offshore drilling unit (MODU) while conducting operations on the outer continental shelf of Alaska. 3 The District Court did not expand its preemptive order to cover the transit of the MODU outside of the U.S. territorial sea. This does not limit the Coast Guard's inherent ability to lend assistance on the high seas or to enforce certain international law concepts concerning freedom of navigation in response to (but not likely before) an incident. The Story Continues On July 10, 2012, the Alaska Wilderness League sued the Department of the Interior, challenging its decision to approve Shell's Beaufort and Chukchi oil spill plans, which were required pursuant to OPA 90.4 Alaska Wilderness also, through the Administrative Procedure Act, challenged DOI's compliance with the National Environmental Policy Act, the Clean Water Act, and the Endangered Species Act. The Coast Guard was not a named defendant in this suit. The crux of Alaska Wilderness' suit was that Shell's spill plans were created under the best possible environmental conditions (weather, sea state, ice coverage). According to the plaintifs, a spill plan should be created for the worst-case discharge, which requires consideration of the most probably adverse weather. Summer 2013 Although the Coast Guard is not directly involved in this litigation, the result may have efects on Coast Guard eforts to form policy and regulation with regard to spill response, especially Coast Guard efforts to shape policy, procedure, and possible regulation to remediate oil trapped in ice. In another litigation with a connection to the Arctic, the EPA and the Coast Guard were sued in April 2012 for alleged failure to conduct proper consultation under the Endangered Species Act with respect to rules governing the use of dispersants in oil spills and the efect dispersants may have on the Arctic marine environment. As the EPA and Coast Guard share regulatory roles governing dispersant use, the outcome of this litigation may have significant impact on how the Coast Guard may implement the National Oil and Hazardous Substances Pollution Contingency Plan in the future. Endnotes: 1. 8. Shell v. Greenpeace, Inc. No. 3:12-cv-00042-SLG (D. Alaska fled Feb. 24, 2012). 2. www.greenpeace.org/international/en/multimedia/slideshows/Shell-Drill-Ship-Noble-Discoverer-Drifts-Toward-Shore-Near-Unalaska-IslandAlaska/. 3. For the MODU's in position, an OCSLA safety zone was promulgated pursuant to 33 C.F.R. 147 and the can be found at 77 FR 39164 and 77 FR 10707. An OCS safety zone may extend to a maximum distance of 500 meters around the OCS facility measured from each point on its outer edge or from its construction site, but may not interfere with the use of recognized sea lanes essential to navigation. 4. Alaska Wilderness League et. al v. DOI. No. 1:12-cv-00010-RRB (D. Alaska, fled July 10, 2012). www.uscg.mil/proceedings