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In Conversation Attorney Patti Goldman: Shell Oil, Seattle, and The Arctic

Managing Attorney Patti Goldman speaks with Earthjustice client and Puget Soundkeeper Chris Wilke on a boat in Puget Sound.
Chris Jordan-Bloch / Eathjustice
Managing Attorney Patti Goldman speaks with Earthjustice client and Puget Soundkeeper Chris Wilke at Puget Sound on April 28, 2015. The icebreaker ship Aiviq (background) is part of Shell's Arctic drilling fleet.

Despite swarms of “kayaktivists” protesting the move, Shell’s behemoth deep-sea oil drilling rig the Polar Pioneer departed the Port of Seattle on June 15 for the Arctic waters of the Chukchi Sea.

But the fight to keep Shell out of Seattle and to block oil exploration in the Arctic shows no signs of cooling down. Earthjustice managing attorney Patti Goldman explains the situation. This interview was conducted in April 2015.

The Obama administration’s impact statement on oil drilling in the Chukchi Sea said there’s about a 75 percent chance there will be one or more major oil spills if this area is developed. How would an oil spill in the Arctic impact the ecosystem?

Isn’t it shocking that with those kinds of odds we’re still going forward?

Bowhead whales predominantly live in the Arctic, where they thrive in shallow waters just beneath sheets of ice for the bulk of the year.
Flip Nicklin / Minden Pictures
Bowhead whales predominantly live in the Arctic, migrating through the Chukchi and Beaufort seas to eat, give birth and raise their young—the same area where Shell plans to drill. See more »

Below: Over five years, satellite transmitter-tagged bowheads gave data on habitat use and behavior.
Five years in the lives of bowhead whales.
Alaska Dept. of Fish & Game

No one really knows how to clean up an oil spill in and around sea ice.

The booms and the burning that were used in the Gulf of Mexico [during the BP oil spill]—they just don’t work. So you’re going to have a worse oil spill should the unthinkable happen.

Unfortunately, Shell’s leases put the drilling right in the pathway of the bowhead whale migration and in a rookery for walruses, so you also have particular threats to those marine mammals.

This year, the Obama administration has focused on climate change, proposing further protections in the Arctic National Wildlife Refuge and implementing the Clean Power Plan.

But it also released Arctic leases to oil companies. What do you make of these contradictory policy decisions?

It’s hard to make sense of those contradictions. On the one hand, I think the Obama administration is doing the right things to move forward.

But when it comes to our resources—coal in the Powder River Basin and oil in the Arctic—they are just going forward to develop those resources as part of the ‘all of the above’ strategy.

"Arctic oil is not currently developed. It’s a 10- to 20-year horizon before it would be. And it’s really expensive."

It’s so misguided, because if we are going to meet our climate goals, we’re going to have to keep some of the reserves of oil in the ground.

Arctic oil is not currently developed. It’s a 10- to 20-year horizon before it would be. And it’s really expensive—about $120 a barrel—to develop that oil. Right now, oil is about $60 a barrel.

That’s just not consistent with our climate goals, and it’s just not prudent.

One of your recent cases involves the Port of Seattle entering into a lease with Foss Maritime to open Terminal 5 to Shell Oil. What was wrong about the way the port handled the lease?

What was wrong? Let me count the ways! It is an elected port—there are five elected commissioners—and they are supposed to make significant decisions in the public eye and get input. It shut the public out and negotiated a lease in secret. It finally decided to have a public meeting discussing this issue after the issue had been leaked to the maritime industry.

"Washington is a state where we take our right to participate in government decisions very seriously."

What we’ve learned since is that it was a done deal even before that meeting. That’s just not what we expected of our elected officials. Washington is a state where we take our right to participate in government decisions very seriously.

Hundreds of 'kayaktivists' swarm Shell Oil's drilling rig Polar Pioneer, as it arrives in Elliot Bay at the Port of Seattle on May 15, 2015.
Joshua Trujillo / SeattlePI.com
Hundreds of "kayaktivists" swarm the drilling rig Polar Pioneer, as it arrives in Seattle's Elliot Bay on May 15, 2015. Read related story »

In our law requiring environmental review, it declares the right to a healthy environment a fundamental right. When it’s violated, or people allege it’s violated, they have a right to be heard in court.

And that’s what we are doing—being heard in court, under that law, under that right.

The port says it wants to be the greenest port on the West Coast, and we want to hold them to those values. And that’s what people are really upset about.

Will Shell be able to continue business-as-usual unless the Port of Seattle orders them to stop?

We have a hearing date on July 31. So if we win the case at that point, we are asking that the lease be invalidated.

If Shell has its way, those drill rigs will be up in the Arctic by then. [Earthjustice is challenging in court the approval of Shell’s exploration plan.] But if they are up in the Arctic that will likely mean they cannot come back without the port complying with the law and making a new decision.

And this has been quite explosive politically. We may see a different decision once it’s happening under the public eye.

We’ve heard that if Seattle says 'no' to Shell, they are just going to find somewhere else to set up their home base. Is that true? And is there more to saying 'no' to Shell—is it about stopping the action right now, or is it about a bigger issue?

What Foss Maritime told the port at the one public meeting is that if Shell can’t come to Seattle, they’ll go to Dutch Harbor up in Alaska—which is a lot trickier. There are harsh weather conditions—sometimes the planes can’t land—and it does not have the infrastructure or the skilled labor that we have here in Seattle. It would be a substandard alternative for Shell—costlier, less convenient, and iffier. And so they want to be here to basically grease the skids for the operation.

Seattle residents packed a Port commissioners meeting on the Terminal 5 lease on March 24, 2015.
Joe Nicholson for Earthjustice
Seattle residents, in opposition to Shell's Arctic drilling fleet, pack a Port commissioners meeting on the Terminal 5 lease on March 24, 2015.

I know one of our port commissioners has said this would be symbolic if we said 'no' to Shell—but it’s much more than that because everything needs to be lined up for drilling to go forward in the Arctic.

They don’t have the last permits yet. They have challenges in court to some permits that require protections for marine mammals and protections from an oil spill. And if any of those things don’t happen, they won’t drill this year.

And every year they don’t drill, that calls into question whether they should even be drilling up there at all.

"Obviously you need international and national solutions—but this is a city where people want to lead."

What’s going on in Seattle is that people care about our port—but they also don’t want to be enablers for drilling in the Arctic. This is where the city movement was born, where cities have stepped up to take action when the federal government and the international community have not. Obviously you need international and national solutions—but this is a city where people want to lead.

How have our other elected leaders reacted to the controversy?

Michael O’Brien [on the Seattle City Council] has been with us since the very beginning and at the press conference where we sent a letter to the port saying, “You’ve got to be kidding, aren’t you going to reconsider this decision and do an environmental review?”

Our former mayor [Mike McGinn] signed onto that letter as well. And when we uncovered the violation of the shoreline permit, the mayor and all nine City Council members unanimously asked the city to investigate.

The mayor and city Department of Planning and Development have said the Port of Seattle must apply for a new permit to use Terminal 5 to host Shell's drilling fleet. They found that Terminal 5, under its current permit, can only be used as a container terminal.

What is the difference between a container terminal and what Shell is trying to do?

This is the premier container terminal at the port. In a container terminal, you have huge ships come in bringing huge containers, offload them, put them up on the deck and then put them onto trucks or trains. That’s a lot of activity and a huge volume; that’s the point, moving a huge volume of goods.

The Polar Pioneer arrives in Seattle's waters on May 14, 2015. The drilling rig is part of Shell's Arctic drilling fleet.
Photo courtesy of Aaron Brethorst
The Polar Pioneer arrives in Seattle on May 14, 2015. The drilling rig is part of Shell's Arctic fleet.

If you think of the homeport Shell wants, you have these big unwieldy ships that are coming here for about half a year—they need repairs, and they need maintenance, and they need to be outfitted. They are going to have to load up what they need for a season up in the Arctic—that’s a very different activity.

And for this fleet, it’s particularly concerning. This is a fleet that has a terrible track record when it comes to water pollution and complying with environmental and safety laws.

In 2012, there were violations of water pollution laws by Noble, the owner of the Noble Discoverer, one of the drill rigs that would come to Seattle. It was dumping oil contaminated water overboard and lying about it. The company was charged and eventually pled guilty to eight felonies and paid more than $12 million in fines. And that was just in December, right when this deal was materializing. The other vessel is owned by TransOcean, another felon that was involved in the Deepwater Horizon disaster.

They want to drill in one of the most pristine and remote areas, with the Coast Guard 1,000 miles away, in an area that’s incredibly harsh. And these ships are going to come back battered. Hopefully they won’t be leaking oil as they come into port.

Seattle has an amazing history of not putting up with this sort of thing. Did Shell make a miscalculation when they came to Seattle in the first place?

From Shell’s perspective, I think they made a miscalculation. But from ours, I think it was a blessing in disguise.

Scenes from the May 18 rally in Seattle against Shell's Arctic drilling fleet.Scenes from the May 18 rally in Seattle against Shell's Arctic drilling fleet. In attendance was a sizeable contingent of the 'Raging Grannies,' who use song and humor to promote global peace, justice, and social and economic equality.
Chris Jordan-Bloch / Earthjustice
Scenes from the May 18 rally in Seattle against Shell's Arctic drilling fleet. In attendance was a sizeable contingent of the 'Raging Grannies,' who use song and humor to promote global peace, justice, and social and economic equality.

What Shell did by wanting to come here and wanting to make Seattle a homeport is unleash tremendous activism.

We are a city with tremendous leadership in the area of climate activism—and now we are ground zero for trying to stop Arctic drilling.

One of the things that's been amazing about the Shell homeport is it came at the wrong moment for Shell in that we have very organized community opposition to making the Northwest a fossil fuel highway.

We have tremendous organized opposition to coal export terminals and now the oil trains that would take crude oil to terminals to be exported to California—or if they have their way, to Asia—and we are fighting those every step of the way.

"It’s a fight against companies that are trying to use us."

These are separate campaigns, but the same organizations are at the heart of all of them, including Earthjustice. It’s a fight against companies that are trying to use us. We are seeing common villains and common designs on the region that the people don’t want.