The U.S. Coast Guard plucked 24 kayakers out of Puget Sound, near Seattle, on Monday morning. The group, which included 14 Greenpeace activists and a member of the Seattle City Council, had been there since Saturday, intent on blocking the egress of the Polar Pioneer drilling rig. Royal Dutch Shell is sending the rig to the Arctic to search for oil beneath the Chukchi Sea.
I’m always saddened when a clever protest like this ends suddenly. The sight of 24 tiny, human-powered kayaks frustrating a 400-foot behemoth in David-versus-Goliath style was delightful.
It turns out the Coast Guard was within its legal rights to pick up the protesters, though. The Code of Federal Regulations permits the Coast Guard to establish temporary safety zones around vessels in order to ”protect human safety or the environment.” (Obviously it was more about humans than environmental safety in this case.) On April 28, in anticipation of protests, the Coast Guard set a 100-yard safety zone around Polar Pioneer when anchored and a 500-yard zone when in transit. Although the maximum fine for violating the zone was $40,000, the protesters seem to have gotten off with $250 to $500 slaps on the wrists. All 24 protesters have already been released.
When applied to protests, lawyers refer to these sorts of rules as “time, place, and manner” restrictions. The principle allows the government to make laws that incidentally restrict free speech, as long as the rules are content-neutral and narrowly tailored. In other words, while the Coast Guard can establish no-go zones around large boats, it can’t apply them only against antidrilling protesters—that wouldn’t be content-neutral. Nor can the government prohibit holding up a sign while kayaking, which would be too broad in scope.
Nonetheless, the arrests seem slightly problematic to me, even if they’re consistent with the letter of the law. The traditional venue for combating a permit to drill in the Arctic is the public-comment process. When preparing to take a regulatory action, federal agencies are required to invite individuals, companies, and advocacy groups to air their concerns over the course of several weeks.
The permitting process for Shell’s application to drill in the Chukchi Sea, however, has been a disaster from the beginning. The U.S. Department of the Interior twice wrote environmental-impact statements that federal courts deemed inadequate. Before issuing the third report, released three months ago, the department claims to have reviewed more than 100,000 public comments in just two months—an incredibly unlikely feat for a federal bureaucracy. The timeline suggests that the federal government wasn’t interested in what the public had to say about drilling in the Arctic.
Don’t take my word for it. In 2012, the Government Accountability Office published a troubling report suggesting that government agencies regularly skip the public-comment process. When public comments are solicited, agencies are free to ignore them, which they often do. George Washington University law professor Richard Pierce explained to Vice that the comments receiving attention “invariably come from companies with hundreds of millions or billions of dollars at stake or the lawyers and trade associations that represent them. Those are the only comments that have any chance of persuading an agency.”
Against this backdrop, can you really blame the kayaktivists for breaking federal law and blockading the Polar Pioneer? It was probably the only way to get the federal government’s attention.
This article was originally published by onEarth.