Opinion: Preparing for Confrontations with Environmental Protestors in Arctic Waters

Written by: Craig H. Allen Sr., U.S. Coast Guard Academy

On Thursday, February 23rd, Admiral Bob Papp delivered his annual State of the Coast Guard address to a large audience assembled on the Coast Guard Island pier in Alameda, California.  Against the backdrop provided by the service’s new 418 ft. National Security Cutters, the Commandant highlighted some of the maritime challenges the nation will face in the coming years and how the Coast Guard will respond to them.  Those challenges include an increasingly accessible Arctic that beckons to modern-day commercial navigators seeking a shorter Northwest Passage route over North America, cruise ship operators and offshore oil and gas interests. 

One challenge the admiral did not mention is the potential threat to maritime safety and the marine environment posed by protestors who might be bringing their “direct action” campaign to the Arctic.  While Admiral Papp was delivering his address, Greenpeace protesters led by Lucy Lawless—one time star of the Xena Warrior Princess series— were preparing to board the drill ship Noble Discoverer in New Zealand, in an attempt to stop the ship from sailing for the Alaskan Arctic. At the same time, the Seventeenth Coast Guard District office was publishing proposed regulations that will impose 500 meter safety zones around the Noble Discoverer and the mobile offshore drilling unit (MODU) Kulluk once the vessels arrive in the Chukchi and Beaufort Seas to begin exploratory drilling for Shell. The safety zones serve as a reminder of Greenpeace’s 1997 protest activities against the drill rig Glomar Beaufort Sea I.  In that earlier incident, Greenpeace members from the Arctic Sunrise attempted to thwart attempts to tow the MODU rig to an ARCO exploratory drilling site in the Beaufort Sea’s Camden Bay. 

Temporary or permanent safety zones are already commonly used by the Coast Guard to protect offshore exploration vessels and production platforms in the Gulf of Mexico. Violations of safety regulations promulgated under authority of the Outer Continental Shelf Lands Act are punishable by civil penalties and/or fines of up to $100,000 and imprisonment for up to 10 years (33 C.F.R. § 140.35). Depending on the nature of the acts and the extent to which they endanger the vessel’s navigation safety, 18 U.S.C. §§ 2280-2281—the U.S. laws that implement the 1988 Safety of Maritime Navigation Convention and its protocol protecting fixed platforms—provide a possible second basis for prosecution and imprisonment.

Readers are likely familiar with the sometimes violent confrontations involving environmental protests at sea.  In 2002, the Council of the International Maritime Organization’s temporarily stripped Greenpeace of its observer status at the IMO in response to the organization’s "unsafe seamanship" practices during protests at sea (the Assembly later restored their status). Later, in response to the activities of anti-whaling protestors in the Southern Ocean, the IMO more formally registered its member-states’ concern over the threat such activities pose to navigation safety.  In Resolution MSC.303(87), adopted by the Maritime Safety Committee on May 17, 2010, the IMO sought to address the need for “assuring safety during demonstrations, protests or confrontations on the high seas.” While recognizing a right of peaceful protest or demonstration at sea, the IMO made it clear that it condemns “any actions that intentionally imperil human life, the marine environment, or property during demonstrations, protests or confrontations.”

President Obama and Secretary of Interior Ken Salazar have determined that Shell’s plans meet the applicable federal safety and environmental protection standards and requirements for exploratory drilling on the U.S. arctic outer continental shelf this coming summer. Earlier this month, DOI’s Bureau of Safety and Environmental Enforcement (BSEE) approved Shell’s oil spill response plan for Chukchi Sea operations. Shell’s plan was reviewed under stringent new regulatory requirements imposed by BSEE in the wake of the Deepwater Horizon oil spill.  For example, Shell was required to prepare for a worst case discharge nearly five times that addressed by their previous plan and include provisions for the Arctic’s extreme weather conditions.

Admiral Papp briefly described his plans to meet the Coast Guard’s prevention and response missions in the Arctic this summer by seasonally deploying cutters—including the new national security cutters—together with aircraft and crews, while continuing to define the Coast Guard’s need for permanent arctic infrastructure.  It remains to be seen whether protestors will in fact carry their direct action campaign to the Beaufort and Chukchi Seas this summer and, if so, whether they will respect the safety zones established by the Coast Guard.  Should the protests materialize and threaten the drilling vessels’ safety by entering the safety zones, the Coast Guard will likely be called upon to divert its resources from other critical arctic prevention and response missions to enforce the safety regulations. 

Craig H. Allen Sr. is the Judson Falknor Professor of Law at the University of Washington.  For the 2011-2012 academic year he is serving as the Distinguished Visiting Professor of Maritime Studies at the U.S. Coast Guard Academy.  The views expressed are the author’s alone and do not necessarily reflect the views of the Coast Guard or any other government agency.