## Facts

- Shell Offshore Inc. and Shell Gulf of Mexico Inc. (together, Shell) planned oil exploration activity in the Arctic Ocean near Alaska and had invested significant resources in that effort.
- Greenpeace, Inc., an environmental organization, opposed Shell’s Arctic drilling and organized direct-action protests aimed at interfering with Shell’s operations.
- Shell sought a preliminary injunction in federal district court to bar Greenpeace from engaging in protest conduct that would interfere with Shell’s Arctic exploration activities.
- The district court granted Shell a preliminary injunction that restricted Greenpeace’s conduct in relation to Shell’s activities and included a coercive fine schedule: fines would be imposed for violations, but no fines would be assessed if Greenpeace complied.
- Greenpeace appealed the preliminary injunction to the Ninth Circuit.
- While the appeal was pending, the preliminary injunction expired by its own terms.
- During the same period, Shell announced it would cease further offshore Alaska exploration activity for the foreseeable future.
- Shell also had damages claims based on Greenpeace’s protest activity that remained pending in the district court.

## Issues

1. Whether Greenpeace’s appeal of the preliminary injunction remained a live Article III controversy, or became moot after the injunction expired and Shell stopped Arctic offshore exploration for the foreseeable future.
2. Whether the “capable of repetition, yet evading review” exception applied despite the injunction’s expiration.
3. Whether Shell’s continuing damages claims (or other potential collateral consequences of the injunction) prevented the appeal from becoming moot.
4. If the appeal was moot, whether the case should be remanded for the district court to consider vacatur of the preliminary injunction order.

## Decision

- The Ninth Circuit dismissed Greenpeace’s appeal as moot because the preliminary injunction had expired by its own terms and Shell’s announced halt to offshore Alaska exploration meant there was no longer a live dispute over the injunction’s validity.
- The court declined to apply the “capable of repetition, yet evading review” exception because recurrence was too speculative given Shell’s stated cessation of exploration for the foreseeable future.
- The court held that Shell’s still-pending damages claims did not keep the appeal from being moot, because the appeal challenged only the expired preliminary injunction, not the merits of Shell’s underlying claims.
- The court rejected arguments that possible collateral consequences (such as hypothetical future contempt disputes) preserved a live controversy where no concrete continuing consequence was before the court.
- The court remanded for further proceedings and directed the district court to consider vacatur of the preliminary injunction in the first instance.

## Legal Principles

- An appeal becomes moot when intervening events make it impossible for the court to grant effective relief regarding the challenged order.
- The “capable of repetition, yet evading review” exception requires both (1) action too short in duration to be fully litigated and (2) a reasonable expectation that the same party will face the same action again; speculative recurrence is insufficient.
- The existence of remaining damages claims in the district court does not, by itself, keep an appeal from an expired preliminary injunction alive when the appellate court is asked only to review the injunction.
- Alleged collateral consequences must be concrete and presently operative to avoid mootness; hypothetical future proceedings generally do not preserve appellate jurisdiction over an expired order.
- When a case becomes moot on appeal, remand may be appropriate for the district court to consider whether vacatur of the challenged order is warranted under equitable standards.

## Conclusion

The Ninth Circuit dismissed Greenpeace’s appeal because the challenged preliminary injunction expired and Shell’s announced pause of offshore Alaska exploration eliminated any live controversy about the injunction’s validity; the court remanded for further proceedings, including consideration of vacatur, while leaving Shell’s damages claims to be addressed in the district court.


Shell Offshore Inc. v. Greenpeace, Inc., 815 F.3d 623 (2016)