Nonetheless, the Secretary’s determination that a six-monthPerhaps the lawyers among my readers could weigh in on his reasoning.
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.
The administration will appeal this injunction on their moratorium.