A virtual court sitting in Makhanda has heard arguments between oil giant Shell and a group of environmental and human rights organisations opposed to its plans to explore the ecologically sensitive Wild Coast for oil and gas.
On Monday night, the Border Deep Sea Angling Association, Kei Mouth Ski Boat Club, Natural Justice and Greenpeace Africa applied for an urgent interim interdict to stop Shell from embarking on its 3D seismic survey between Morgan Bay and Port St Johns, which was scheduled to start on Wednesday.
At its heart, the applicants’ case, which was heard in court on Wednesday, centred on the potential for seismic surveys to cause substantial “irreparable harm” to the marine environment during December, particularly to migrating humpback whales and other cetaceans.
Advocate Willie Duminy, senior counsel for the applicants, argued that the approved environmental management programme (EMPr) for Shell’s seismic testing makes it clear the survey should not be undertaken during December, unless that cannot be avoided. Shell, he said, had not established that undertaking it now was unavoidable.
“It is noteworthy that … Shell insists on its right to commence on 1 December 2021, inter alia on the basis of allegedly insignificant impacts on marine fauna, but repeatedly ‘with mitigation’. However, the very EMPr on which it relies categorically states, in respect of mitigation, that it should ‘avoid surveying during December’.”
The applicants, Duminy said, were motivated by a desire to protect the coastal environment and had to bring their urgent application because Shell was unwilling to give any undertakings that it would not begin its surveys during December.
“By letter dated 25 November 2021, the applicants’ attorneys sought an undertaking from Shell to ensure that the seismic surveys planned for the Transkei Exploration Area would not commence before February 2022.
“The letter recorded that southern right and humpback whales had not yet fully returned from their annual migration and that some were still on their way back and will likely to be transiting the survey area shortly, and that commencement of seismic surveys during December (or even January 2022 for that matter) would have a particularly severe impact on those cetaceans.”
Shell, Duminy argued, not only declined to give the requested undertaking but claimed that there was no urgency in the matter because the applicants’ attorneys had been aware of the intended seismic operations for “a few months”. This allegation was refuted by the applicants’ attorneys.
The law, Duminy said, regulates seismic surveys and requires mitigation measures to be taken, “precisely because they are harmful to the environment”.
Shell’s own EMPr, he said, establishes that harm will occur and the interdict should not be refused on the basis that the degree of harm was insufficient.
He argued that Shell was not taking all the mitigation measures required by law and it would be argued at the review stage that Shell does not have the environmental authorisation that it requires under the National Environmental Management Act.
Many fishing organisations were not informed of the surveys as the EMPr required, and there was no evidence of any attempt to identify and inform potential interested and affected parties. Shell, meanwhile, said there was extensive consultation with operators in the fishing and tourism sectors.
Advocate Adrian Friedman, senior counsel for the company, said the applicants had “tried to suggest” that there is some prima facie irregularity with the seismic survey being conducted in December.
“But Shell has demonstrated in detail that, in fact, commencing now is the most appropriate step to take, from an environmental perspective, to prevent interference with whales during July to November … The window now selected, with the mitigation measures adopted, is the safest window in which to conduct the survey.
“In particular, the EMPr makes clear that the survey may be conducted in December, as long as passive acoustic monitoring is in place in December. Shell has demonstrated that it will, in fact, use passive acoustic monitoring for the duration of the survey (not just December), 24 hours a day,” Friedman said.
Shell, he said, is authorised to conduct the survey pursuant to an EMPr approved by the Petroleum Agency of South Africa and the minister of mineral resources and energy in 2014 “and which has to date not been challenged”. Shell conducted a previous 2D survey in the same area pursuant to the same authorisation, which was not challenged.
The applicants’ entire case, Friedman said, is based on speculative harm, “which is belied by the actual evidence and experience of seismic surveys around the world”. Shell’s, he said, is being conducted pursuant to an economic imperative, “to the benefit of the entire country, of energy security”.
There have been about 35 3D seismic surveys conducted in South Africa, 11 of them in the past five years, without incident on the country’s coastline, and hundreds conducted globally. “There is no evidence that any of these has caused any serious injury, death or stranding of marine life. The seismic survey that forms the subject of this application is to be conducted pursuant to a highly detailed mitigation strategy … which will ensure that its impact is low.”
Duminy responded: “What is different about this survey? Two words: the Wild Coast … What we’re concerned with is this 3D seismic survey that is due to start in a very particular sensitive environment riddled with marine protected areas, where there are areas of concern and interest, species that are threatened and protected …
“So comparing that to a seismic survey off Hondeklip Bay or for that matter somewhere in the Atlantic or wherever makes no sense. We cannot simply derive from the fact there were others in South Africa or 300 worldwide that that justifies this seismic survey in this particular place.”
Friedman argued the applicants had deliberately brought the case on a “hyper urgent” basis to gain an unfair advantage and obtain an interim interdict that would achieve the ulterior objective of effectively stopping the project.
Duminy said the accusation that the applicant’s attorneys had in some way improperly delayed launching the application was simply false, and the allegation that they “sat back and did nothing for three weeks” was outrageous.
According to the applicants, Shell’s seismic vessel would, for five months, fire air guns every 10 seconds through 6,011km² of ocean surface, firing extremely loud shock wave emissions that penetrate through 3km of water and 40km into the Earth’s crust below the seabed.
The explosions or discharges from the underwater blasting are sufficiently strong to cause major disruption or damage to a “large range of animals” including marine mammals (whales and dolphins), turtles, crustaceans and other creatures and are expected to kill the eggs of fish and squid.
“From the EMPr, in water depths of 25m to 50m airgun arrays are often audible to ranges of 50 to 75 km, and with efficient propagation conditions such as experienced on the continental shelf or in deep oceanic water, detection ranges can exceed 100km and 1 000km respectively,” the applicants’ court papers say.
Friedman said the seismic sound is not an “explosion” but rather a collapsing air bubble that “emits a low-frequency sound that travels through the earth’s crust.
“There will be no harm to the spawning activity of squid and there is no threat to plankton or ichthyoplankton. Shell has demonstrated that, with the various mitigation strategies which it will implement, the impact on odontocetes cetaceans (which include whales and dolphins) will be low.”
The seismic testing vessel, the Amazon Warrior, he said, is already on its way to the location and the granting of an interim interdict now will “cause irreparable harm to Shell and its partners arising from the wasted expenditure and planning.
“Labouring under the impression that it held a valid authorisation, Shell has spent millions of dollars and entered into contractual obligations to be ready to commence the survey. This will all be sunk, if the interim interdict is granted now.”
Acting Judge Avinash Govindjee reserved judgment for 9am on Friday.