Scottish Legal News: Shell granted interdict to ban Greenpeace protestors from Brent oil field rigs

Undated information published by Scottish Legal News 16 Jan 2020

An oil and gas company has been granted a court order to prohibit environmental campaigners from carrying out protests on four offshore installations in the North Sea.

Shell UK was granted an interdict to prevent Greenpeace activists from boarding or attempting to board the Brent Alpha, Brent Bravo, Brent Charlie and Brent Delta rigs 85 miles north-east of Shetland, after a judge in the Court of Session ruled that the defenders had “no right or title to occupy the installations”.

‘Decommissioning programme’

Lady Carmichael heard that the pursuer was seeking to interdict the defenders’ agents, employees, volunteers or servants, or anyone acting on their behalf, from approaching within 500 meters of or boarding or attempting to board any of the four installations, and from instructing, procuring, encouraging or facilitating others to do so.

The court was told that the four rigs in the Brent oil field were at various stages of decommissioning, a process regulated by the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR).

In terms of OSPAR Decision 98/3 on the Disposal of Disused Offshore Installations, the dumping, and the leaving wholly or partly in place, of disused offshore installations within the marine area is prohibited.

But derogations are available for certain categories of installation if the relevant authority – which in the UK is the Offshore Petroleum Regulator for Environment and Decommissioning (OPRED) – considers that there are significant reasons why an alternative disposal, such as leaving part of the installation in place, is preferable to reuse or recycling or final disposal on land.

As part of its decommissioning programme the pursuer had sought permits for derogations under Decision 98/3.

In relation to Bravo, Charlie and Delta, the proposed derogations would involve leaving in situ the concrete gravity-based structures and cell sediment contained within the structure on the basis that the risks associated with their removal are too great when compared with the assessed risks to the local environment of leaving them in place.

In respect of Alpha, the proposal is to remove the upper part of the shell jacket to 84.5 meters below sea level, with decommissioning in situ of gather jacket footings.

It will be for OPRED and the UK government to decide whether to grant the permits, but the decision could set a precedent.

‘Clean up your mess’

In protest against the proposals, on 14 October 2019, Greenpeace activists from the Netherlands, Germany and Denmark boarded Alpha without permission and erected a banner which stated “Shell! Stop Ocean Pollution” above the word “Greenpeace”, while other protester scaled one of the legs of Bravo and erected a second banner which stated “Clean up your mess, Shell”.

At least three protesters, using climbing equipment supported by the Greenpeace ship “Rainbow Warrior”, were also involved in painting the words “Toxic Waste” in large letters onto the side of one of the legs of Bravo.

The protesters remained in position for approximately 24 hours, after which, due to deteriorating weather, they removed themselves and returned to the Rainbow Warrior.

The defenders have complained of an “inadequate assessment of the risks” by the pursuer have expressed concern that, if the structures are left in the ocean as the pursuer has proposed, they may “degrade and result in pollution of the marine environment”.

They referred to a report and a review carried out for, respectively, the governments of Germany and the Netherlands, which raised concerns as to the adequacy of the derogation assessments by the pursuer and by OPRED and said that a number of other prominent non-governmental organisations have taken the same view.

However, the pursuer insisted that the sediment contained in the base of the oil storage cells on Bravo, Charlie and Delta contained “no significant quantities of non-biodegradable compounds”, and that when the cells degrade over time, the sediment will remain largely contained in the footprint of the structure, “without significant impact on the local environment”.

‘Unlawful occupation’

The pursuers sought interdict and interim interdict, arguing that the protesters had put themselves and others in danger.

Parliament had made provision for a 500-metre safety zone around offshore installations, and under the Petroleum Act 1987 it was a criminal offence to breach the safety zone.

It was submitted that the common law protected the pursuer’s interests in the installations, but in the present case there had been both “unlawful occupation and criminal damage” of the rigs, in the form of the painting on the leg of Bravo.

The defenders’ right to freedom of expression and freedom of assembly under Articles 10 and 11 of the European Convention on Human Rights (ECHR) did not confer a licence to trespass on other people’s property in order to give voice to one’s views.

It was also argued that the “balance of convenience” favoured the pursuer, as the order sought did not prevent the defenders protesting by other means, nor did it represent any significant restriction on the ability of the defenders to express their views, and to exercise their right of freedom of assembly in order to do so.

The defenders’ position was that Rainbow Warrior did not enter the 500-metre zone, but served as a “support vessel”, for the protesters, who were “trained in non-violent direct action techniques”, had been on “climbing training days”, and had “risk-assessed” the venture.

It was argued that the order sought would represent an “interference” with the rights protected by Article 10 and Article 11 ECHR.

‘Interdict necessary and proportionate’

However, the judge ruled that the restriction imposed by the grant of interim interdict was “necessary and therefore proportionate”.

In a written opinion, Lady Carmichael said: “First, that a restriction is sought in relation to protest on private property is, at least, a very significant factor supporting the proportionality of the restriction.  The defenders have no right or title to enter or occupy the installations.

“Counsel was unable to refer me to any case from a court in the United Kingdom in which access had been afforded (or in which the court had declined to prohibit access) to privately owned property for the exercise of the rights protected by A10 and/or 11. On the contrary, recent decisions of courts in England and Wales indicate that the entitlement of an owner to enjoy its property without interference is a strong factor in the balance where A10/A11 rights are concerned.

“There are significant difficulties associated with the courts, in effect, providing for a right of access to privately owned property by declining to grant interdict in a case such as the present. The proprietor or lawful occupier might find the views of the protester repugnant, or at odds with its own. The rights to each in relation to freedom of expression might be in conflict. The present case is an example.

“I accept that, in general, the duration of the protest, how disruptive or otherwise it is, and the importance of the location to the protesters will be relevant factors in assessing the proportionality of an interference with the rights protected by A10 and/or A11…It is, however, clear that there is not an absolute right to choose a location for a protest, for the reasons I have already discussed. Occupation of an installation involves risks to safety.

“While the location is highly desirable to the defenders, lack of access to it is not destructive of the right of freedom of expression or freedom of assembly. It does not prevent the defenders from criticising the conduct of the pursuer in relation to decommissioning the installations. It does not prevent protest at a very wide variety of other locations. It does not prevent protest at sea at 500 metres from an installation.”

She concluded: “I am satisfied not merely that the pursuer has made out a prima facie case, but that it has demonstrated that its case is likely to succeed. So far as the balance of convenience is concerned, I am satisfied that that favours the pursuer.

“The defenders have no right or title to occupy the installations, and the pursuer has raised safety concerns of substance. The defenders have a wide variety of other locations open to them at which to protest.”

© Scottish Legal News Ltd 2020

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