Yesterday, a Federal judge in Louisiana suspended the only sensible action taken by the Federal government since BP's spill occurred. Justice Feldman of the U.S. District Court ordered that the Obama administration's moratorium on deepwater drilling be removed pending a further investigation into the safety of the existing and future drilling operations. He effectively overturned the drilling moratorium.
There are a number of problems with his ruling. And, many sources indicate that the Judge has significant stock in oil and thus served to suffer significant personal loss if the moratorium was upheld. These allegations have not been confirmed, but if the intellectual missteps in Feldman's decision are any indication of his bias, this adjudicator was seriously influenced by something other than the rule of law.
The Federal government is allowed to temporarily prohibit any activity that causes a "threat of serious, irreparable, or immediate harm or damage to life (including fish and other aquatic life), to property, to any mineral deposits... or to the marine, coastal, or human environment." (OCSLA s. 1334(a)(1)). A decision to suspend activity under this act can only be set aside if the decision is "arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with law." (5 U.S.C. s.706(2)(a)).
The Supreme Court has found that a decision is "arbitrary and capricious" if it relied on factors not contemplated by Congress, ignored an important part of the problem at hand, ignored evidence to the contrary or came up with a decision that is so implausible it could not be attributed to a difference of opinion within the agency (State Farm, 463 U.S. 43).
Feldman looked at this law and made two important and faulty decisions.
First, he determined that you cannot suspend all deepwater operations without first taking into account the particular safety practices and regulations followed by each suspended rig. This is a problematic conclusion. When the Federal government has determined that the agency in charge of oversight might be incompetent or corrupt, assessing the safety of each individual operation becomes impossible. When the Federal government has determined that the safety standards in place and understood by experts in the field are woefully inadequate, assessing the safety of future drilling operations becomes impossible. Feldman actually acknowledged these two points, but insisted on finding that the government must still, despite these roadblocks, engage in an individual assessment.
Even if you wanted individual assessments, the decision not to conduct this kind of review before issuing a moratorium is not arbitrary and capricious. The establishment of the moratorium can easily be ascribed to a difference in opinion between experts within the Federal agency.
Second, Feldman granted the oil companies a preliminary injunction (in other words, he found that, until further review, the status quo stands and the moratorium cannot be enforced). Preliminary injunctions can only be granted if there is a substantial risk of irreparable harm (Ridgely v. FEMA, 512 F.3d 727). Irreparable harm only exists when the damage cannot be quantified monetarily after the fact and the parties cannot be reimbursed after the fact. It is most certainly not the kind of harm that results when a company stands to lose money because of suspension of corporate practices. If, and it is unlikely, Feldman was right in his analysis, the oil companies would be free to sue after the fact and recover the damage done to their respective businesses. The oil isn't going anywhere. They could drill in six months, sue for the interim losses and be put back in the same position as present day. The use of a preliminary injunction in this case creates unnecessary risk in an environment that is already fragile.
The Federal government has stated that it will appeal the ruling. For all our sakes, I hope the appeal is swift. Most important, I hope the appeal is in front of a judge without ties to the oil industry (a rare find it turns out) who understands how to interpret the law accurately and fairly.
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If right now is not an appropriate moment to pause long enough to determine if it is safe to be deep drilling, or, indeed, if it even can be made safe with current technology, the when would there ever be such a time? If there is no such time, then hand all our resources over to the robber barons and shut the regulatory agencies down, because they serve no useful purpose (Republicans would LOVE this).
On the other hand, hey, the Gulf is destroyed for a generation anyway. Maybe we should let 'em drill? How much worse can they make it?
Back to the first hand...if you live on the coast of North Carolina, say, and some fat oil company of dubious reputation is poised to drill off coast there, would you think it might be appropriate to sort out what we are doing, and whether it makes sense, BEFORE we leap?
More video on my blog here about oil hitting the beach, my take on the moratorium, and photo/video of President Obama's visit to Pensacola Beach last week:
http://BloggingDemocratic.blogspot.com
http://www.youtube.com/watch?v=UP8iN4ZX1JU&feature=channel
This should recieve the highest priority by the Feds if they are sincere in their efforts to contain this disaster.
The same applies to passenger jets and oil rigs and if I hit my finger with a hammer.
Thanks for your corporate concern, you troll!
PS Go hit your another finger or play in traffic.
A crack in a wing spar can ground an entire fleet of aircraft while they are all inspected. But a disaster on an oil rig that destroys the ecosystem of LA, MS, AL and FL does not pose enough risk to force inspection of similar rigs?
What strange thinking?
Will Rogers had it correct when he said, "... We have the best politicians that money can buy!"
By the way he currently gets all of his news from Fox and Far right wing radio. Some things never change.
It was criminal.
Faved!
The judge should be charged with criminal negligence.
BTW it is disgusting that greens will NOT take the environmental hit for oil. You greenies pass this onto other countries. If you're so hot on rules and regulations then shouldn't the drilling be happening in OUR back yard so WE control it AND we take the hit for screw ups.
So instead pass the hit onto those brown people in Brazil or the dark people in Africa? That is so upstanding.
Also what logic is there to banning everyone from drilling cause one person screwed up. So do we take away all cars cause someone wrecked a car?
There are a lot of us in this country ready to stand against you nanny staters. You are going to get as much resistance as we can dish out and then double that. Its your nanny staters that block clean up efforts, Jones act, ban ships from helping, not enforce the rules you already made for BP, push BP out into deep water.
wake up.
Fanned, too!
I tend to think that the latter part of that statement is an even more rare find among judges. And it seems that the irreversible damage of another oilspill on top of the one that is going on right now is likely to cause even more irreperable damage. Mabye the government should seek a TRO.
No doubt this guy is headed to the supreme court in the next GOP administration.