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Tuesday, June 22, 2010

The rule of law speaks

A federal judge has blocked President Obama's moratorium on deep water drilling. Here is his ruling. He concludes,
Nonetheless, the Secretary’s determination that a six-month
moratorium on issuance of new permits and on drilling by the
thirty-three rigs is necessary does not seem to be fact-specific
and refuses to take into measure the safety records of those others
in the Gulf.11 There is no evidence presented indicating that the Secretary balanced the concern for environmental safety with the
policy of making leases available for development. There is no
suggestion that the Secretary considered any alternatives: for
example, an individualized suspension of activities on target rigs
until they reached compliance with the new federal regulations said
to be recommended for immediate implementation. Indeed, the
regulations themselves seem to contemplate an individualized
determination by authorizing the suspension of “all or any part of
a lease or unit area.” 30 C.F.R. §250.168. Similarly, OCSLA permits
suspension of “any operation or activity . . . pursuant to any
lease or permit.” 28 U.S.C. §1334(a)(1). The Court cannot
substitute its judgment for that of the agency, but the agency must
“cogently explain why it has exercised its discretion in a given
manner.” State Farm, 463 U.S. at 48. It has not done so.

The Deepwater Horizon oil spill is an unprecedented, sad, ugly
and inhuman disaster. What seems clear is that the federal
government has been pressed by what happened on the Deepwater
Horizon into an otherwise sweeping confirmation that all Gulf
deepwater drilling activities put us all in a universal threat of
irreparable harm. While the implementation of regulations and a new
culture of safety are supportable by the Report and the documents
presented, the blanket moratorium, with no parameters, seems to
assume that because one rig failed and although no one yet fully
knows why, all companies and rigs drilling new wells over 500 feet
also universally present an imminent danger.
On the record now before the Court, the defendants have failed
to cogently reflect the decision to issue a blanket, generic,
indeed punitive, moratorium with the facts developed during the
thirty-day review. The plaintiffs have established a likelihood of
successfully showing that the Administration acted arbitrarily and
capriciously in issuing the moratorium.
Perhaps the lawyers among my readers could weigh in on his reasoning.

The administration will appeal this injunction on their moratorium.


Ken Ashford said...

Lawyer here.

The legal standard here is set out in the last sentence of your pulled quote. The plaintiffs (here, the oil companies) cannot have the moratorium lifted unless they are likely to succeed at trial in showing that the Obama Administration acted arbitrarily and capriciously when it issued the moratorium.

I know, I know. A lot of words, but what do they mean? Well, that's what the issue is.

The key words are "arbitrary" and "capriciously". Forget whether issuing the moratorium was a good idea or a bad idea or "right" or "wrong" or whatever. The issue is whether the decision was/wasn't "arbitrary and capricious".

Of course, those words are "soft" enough to slant any way a judge wants. I don't think the moratorium on deepsea drilling was out of left field. I think it was based on reason and fact, and not on whim or prejudice. The moratorium may have been based on BAD reasoning, but that's not the same as it being based WITHOUT reason.

It's kind of like the run-up to the Iraq War. I disagreed with that, because I thought the "facts" indicating that Saddam had WMD were, in my view, bad facts. Still, I wouldn't call Bush's decision to fight Iraq "arbitrary". It made sense... if you believed the so-called "evidence".

Similarly, I think it makes sense to cease deepsea drilling for six months when there is a possibility that safety procedures are lax industry-wide. It's not arbitrary and capricious in my view. Overly-cautious, maybe, but not arbitrary. It's no more arbitrary than shutting down the airlines for several weeks after 9/11.

I expect this to be overturned on appeal.

Skay said...

"I expect this to be overturned on appeal"

Very sad news for the people of Louisiana.

Rick Caird said...

This administration does not think ahead very well. This injunction is a very good chance to undue the damage from the moratorium with it seeming to be the administrations decision. They can simply say the "judge made me do it".

This moratorium will cost the US a lot of jobs at a time we cannot afford it. Expect to see initial unemployment claims go up (unexpectedly) over the next few weeks. Also, expect drilling rigs to move to Brazil, not to return for 2-3 years. Expect us to need to import more oil affecting out balance of payments negatively.

All this "green energy" mantra is a chimera pushed mostly by those who expect to benefit financially (think GE) or politically (BP before the well blowout). Spain learned they could not afford alternative energy both from a jobs and a raw cost standpoint. Why do we think it will work out an better for us?

LarryD said...

"I expect this to be overturned on appeal"

Then The Won is an idiot, because he's going to have Salazar issue another ban.

tfhr said...

Ken Ashford,

You might be right about the ultimate outcome given that the Obama administration will doubtlessly shop their next effort around to find a greater chance of success, but I disagree with you on the points concerning "arbitrary and capricious".

Your comparison with 9-11 is flawed. Flights resumed on 13 and 14 September in most locations and in the interim additional security measures were added. Your "several weeks" apply to Reagan National but not nationwide.

The six month time frame is arbitrary in that it does not specify what can or will be done in that period. All of the rigs in question have already been inspected since the explosion. Besides shutting down operations until after the mid-term election, what does this specific period of inactivity accomplish?

I could see better a crafted effort succeeding on merit if it targeted rigs identical to Deep Water Horizon and included something more than vague parameters and an arbitrary end date but this first moratorium was not well considered and resembled a poorly aimed shotgun blast.

Skay said...

Building of sand berms stopped by Federal Government.

According to the news--three of the deep water oil rigs have already left the Gulf. I wonder if they are going to Brazil--apparently George Soros has invested a lot of money in their oil company that is drilling much deeper than any in the Gulf. You may remember that Obama sent them 2 billion dollars of taspayer money(stimulus money according to my Senator) not long after Soros invested.

tfhr said...

Ken Ashford,

I forgot to remind you of Betsy's post on 21 June that highlighted the National Review article, "He Blinded Me with Science":

I don't know if the judge that struck down the first moratorium considered the fact that the White House falsified a report it used to justify a halt in drilling, but I suspect that Obama's people stooped to such a measure because they had no valid rationale.

From the article:

"But it is bordering on the grotesque to handpick scientists to give you an opinion and then lie about what they actually said and implement a policy they don’t endorse. (According to the Journal, the Interior Department has apologized to the scientists. But the administration refuses to publicly acknowledge it did anything wrong.)"

The lack of science (and leadership) amidst an ocean of politics doesn't help the Gulf.