Greenpeace and the Law

Background - 1 April, 2016

"Lawyers can and do make a difference in campaigns to protect the planet. We advocate for fundamental rights including freedom of expression, access to information and the right to peaceful protest. We use litigation to enforce environmental laws and hold both governments and corporations to account. We remind lawmakers of the legitimacy of environmental interests and the right to seek access to environmental justice."
Jasper Teulings, General Counsel, Greenpeace International.

Right to Protest

Greenpeace engages in confrontational, non-violent direct action to expose environmental crimes. These actions can sometimes lead to legal action against Greenpeace offices and activists - volunteers committed to environmental protection. Courts across the world have recognised the legitimacy of Greenpeace action and the right to engage in peaceful protest in democratic societies.

In the District Court of New South Wales, Australia, Judge Lantham exercised her discretion not to impose punishment in sentencing a case for trespass against 29 Greenpeace activists, who had graphically exposed the woeful security at a nuclear plant by penetrating it. Her Honour stated in her decision of 15 May 2002, that: "…The right to protest and the right to express publicly one’s political views, albeit by direct action, is one which is to be valued and protected in the context of modern democracy…"

In 2008, six Greenpeace UK activists were charged with criminal damage following an attempt to shut down the Kingsnorth coal-fired power station in Kent - by scaling the chimney and painting the Prime Minister’s name down the side. The jury returned a ‘not guilty’ verdict, accepting the activists' defence that they were acting in order to defend property of a greater value from climate change, including everything from the polar ice caps to the tropical rainforests of the Amazon and the Congo basin. In 2009, plans to build a second coal-fired station at the site were shelved.

After activists briefly shut down 72 of Shell's fuel stations in the Netherlands in 2012, in protest at the company's plans to drill for oil in Arctic waters, Shell sought a court order banning any further actions on or near its premises. The Amsterdam District Court found that the action had met requirements of subsidiarity and proportionality, and rejected Shell's demand. In doing so, it held that "The basic principle is that organisations such as Greenpeace are in principle free to take action and to make their views publicly known. The sole fact that such action causes inconvenience to the company targeted by the action – in this case, Shell – does not mean that such action is wrongful."

The most high-profile recent legal dispute involving a Greenpeace action arose in September 2013, when Russian forces detained the Arctic Sunrise and its crew of 30 and charged them with piracy, in response to a peaceful protest against oil drilling on the continental shelf in the Arctic. The Netherlands – flag State of the vessel – began arbitration proceedings against the Russian Federation, relying on a file of evidence supplied by Greenpeace International. In August 2015, the arbitral tribunal ruled in favour of the Netherlands. Its ruling clearly established the principle that there is a right to protest at sea. Meanwhile, the ‘Arctic 30’ also filed applications with the European Court of Human Rights, asserting that their right to liberty and to freedom of expression had been violated.

Freedom of Expression

Greenpeace regularly champions the right to free speech in its defence of the environment. On occasion, when our campaigning hits its target, companies will seek to prosecute and unreasonably restrict what we say or do.

For example, in 2002 the French nuclear fuel company Areva filed proceedings against Greenpeace France, alleging breach of its trademark in relation to the Greenpeace parody of the Areva logo that depicted the risks of the nuclear industry. In 2008, the Supreme Court of France held in favour of Greenpeace France in declaring that the logo parody fell within the legitimate right of freedom of expression.

The European Court of Human Rights has repeatedly recognised the position of NGOs in society as a ‘critical watchdog,’ by disseminating information and ideas on matters of general public interest such as health and the environment. In Steel & Morris v UK (2005) the Court held that, given this role, NGOs can invoke the same high level of protection as the press under the right to freedom of expression provided they "act in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism..."

Proactive Environmental Litigation

Greenpeace is a key player in proactive litigation worldwide to respond to environmental problems.

In 2015, Greenpeace Southeast Asia, the NGO Magsasaka at Siyentipiko para sa Pag-unlad ng Agrikultura (MASIPAG), farmers and consumers, won a permanent ban on field trials of Bt talong (genetically modified eggplant) and a temporary ban on the development of genetically modified organisms (GMOs) in a landmark decision of the Supreme Court of the Philippines. The Supreme Court upheld the decision of the Court of Appeals to grant a Writ of Kalikasan (writ of nature), and upheld its order for the government to prepare an immediate plan of action to rehabilitate field trial sites and reform the present regulatory process. The temporary ban is in place until a new 'administrative order' takes effect, and includes the highly controversial 'Golden' rice, an experimental project by International Rice Research Institute (IRRI) that is currently back at the laboratory stage due to poor performance. The Supreme Court decision sets a global precedent regarding a precautionary approach to the development of GMOs.

In 2006, Greenpeace UK filed legal proceedings against the British government for deciding to support nuclear power without full public consultation as had been promised three years earlier. The High Court ruled in favour of Greenpeace and held that the UK government's decision to support a programme of new nuclear power plants was unlawful. Mr. Justice Sullivan stated that "something has gone clearly and radically wrong" with the process. The UK government was now required to carry out a genuine public consultation - one that comprehensively addresses issues relating to building new nuclear reactors. On the other side of the Atlantic, Greenpeace USA was a co-plaintiff in a suit challenging the Environmental Protection Agency's refusal to regulate greenhouse gas emissions from new motor vehicles. In a groundbreaking decision the Supreme Court held that the EPA does have the statutory authority to regulate such emissions.

Greenpeace also provides others with means to support legal action to protect the planet. For example, in 2009, Greenpeace International and Greenpeace Czech Republic informed the Federated States of Micronesia (FSM) and a few other countries most vulnerable to the impacts of climate change that the Czech Ministry of the Environment had failed to notify potentially affected states, as required by the domestic environmental impact assessment law, about the expansion and life-extension of a coal-fired power plant. FSM requested a transboundary environmental impact assessment of the project. While transboundary EIAs are common between neighbouring states, as far as Greenpeace and our ally, Environmental Law Service (now Frank Bold, Czech Republic-based legal NGO) know, this was the first time that a State significantly threatened by climate change and far removed from the source of emissions had used the transboundary process in an attempt to ensure its climate and human rights concerns are taken into consideration in the decision-making process.

International Environmental Law

Greenpeace is actively involved in lobbying for effective international environmental law to address global problems and has achieved significant successes, such as the involvement in the adoption of the UN agreement banning large-scale driftnets on the high seas and the Biosafety Protocol to the Convention on Biological Diversity, which controls the international trade in genetically modified organisms. Greenpeace also holds formal observer status at many international meetings where the fate of the planet is decided: the Convention on the International Trade in Endangered Species of Wild Fauna and Flora, the Commission for the Conservation of Antarctic Marine Living Resources, the International Whaling Commission, the United Nations Framework Convention on Climate Change and the Food and Agriculture Organisation of the United Nations, among others.